In Brandt v. Rutledge, (ED AR, June 20, 2023), an Arkansas federal district court in an 80-page opinion permanently enjoined the state from enforcing Act 626, the state's ban on gender-affirming medical care for minors. The court, finding that the Act violates the14th Amendment's equal protection and due process clauses, as well as the 1st Amendment's free speech protections, said in part:
Act 626 prohibits a physician or other healthcare professional from providing “gender transition procedures” to any individual under eighteen years of age and from referring any individual under eighteen years of age to any healthcare professional for “gender transition procedures.”...
The State claims that by banning gender-affirming care the Act advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics. Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions....
Even if the Court found that Act 626 passed constitutional muster under the Equal Protection Clause, it fails under due process analysis....
As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary. “[T]the Fourteenth Amendment ‘forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”...
Act 626 is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for “gender transition procedures” only, not for other purposes. As a content and viewpoint-based regulation, it is “presumptively unconstitutional” and is subject to strict scrutiny...
Arkansas Attorney General Tim Griffen in a statement said that he plans to appeal the decision to the 8th Circuit. The Hill reports on the court's decision.
