After a historic wave of anti-LGBTQ laws, focus now shifts to legal fights

Participants in the annual NWA Trans March walk along Block Avenue toward the downtown Fayetteville square on Friday, June 23, 2023. (Fayetteville Flyer Photo/Todd Gill)

A judge’s ruling that struck down Arkansas’ first-in-the-nation ban on gender-affirming care for minors is offering hope to transgender people, families and providers after a historic wave of restrictions on trans people’s lives sailed through Republican statehouses this year.

The 80-page ruling comes on the heels of other decisions blocking similar bans, which have been enacted by at least 20 states. LGBTQ+ advocates call it a sign of what to expect as a growing number of challenges to laws that limit transgender youth access to medical care, sports teams and bathrooms work their way through the courts.

“This is a really important decision that sets the initial bar for federal courts’ full understanding of what it means to deny transgender youth access to age appropriate, best practice medical care,” said Sarah Warbelow, vice president for legal for the Human Rights Campaign, the nation’s largest LGBTQ+ civil rights group.

More than 500 bills restricting the rights of LGBTQ+ people were introduced in legislatures this year and at least 75 were signed into law, a number that prompted the Human Rights Campaign to issue its first-ever state of emergency. With most legislative sessions over or nearing their end, the focus is now shifting to the legal fights that lay ahead.

U.S. District Judge Jay Moody’s ruling in Arkansas wasn’t the first against restrictions on gender-affirming medical care. Judges in AlabamaIndiana and Florida have temporarily blocked similar bans. But Moody’s decision was the first striking down a ban as unconstitutional.

Although the ruling only affects Arkansas, Moody’s order is likely to factor into challenges to other state bans. The judge directly addresses many of the arguments Republican lawmakers have used in pushing the bans — namely, that the medical care they’re trying to restrict is experimental.

“Transgender care is not experimental care,” wrote Moody, who ruled that decades of clinical experience and scientific research proved its effectiveness for treating gender dysphoria. Every major medical group, including the American Medical Association, has endorsed gender-affirming care and opposed the bans.

He also dismissed most of the state’s expert witnesses as unqualified to give relevant testimony, saying their opinions on gender-affirming care for youth were “grounded in ideology rather than science.”

Legal experts said Moody’s ruling highlights the obstacles other laws will face in court. Lawsuits have been filed challenging most of the bans that have been enacted this year.

“There are two big problems with these laws: One is that they don’t necessarily survive constitutional scrutiny and the other is that they are based on very bad science,” said Elana Redfield, federal policy director for the Williams Institute at the the UCLA School of Law.

Washington County Justice of the Peace Evelyn Rios Stafford, Arkansas’s first openly trans elected official, speaks at a rally following the annual NWA Trans March in downtown Fayetteville on Friday, June 23, 2023. (Fayetteville Flyer Photo/Todd Gill)

Advocates said they’re also encouraged that the rulings so far on the medical bans have come from judges appointed by both Democratic and Republican presidents. Moody was appointed by President Barack Obama, and bans have been temporarily blocked by federal judges in Alabama and Indiana who were appointed by President Donald Trump.

The judge who blocked Florida from enforcing its ban on three children who sued was appointed by President Bill Clinton. The same federal judge this week also struck downFlorida’s rule denying Medicaid coverage for gender-affirming care. In both rulings, the judge has said that “gender identity is real.”

Proponents of the bans said they’re not worried about the Arkansas decision, saying it’s an early ruling in what’s expected to be a long legal fight over the restrictions. Arkansas’ attorney general has said he plans to appeal Moody’s decision to the 8th U.S. Circuit Court of Appeals, which upheld a temporary order Moody issued earlier against the ban.

“We’ve seen this with other issues where early on you have different courts ruling different ways, but I think ultimately there’s clear precedent about the authority of states to regulate the medical profession and to do so in a way that protects minors when there’s uncertainty and unknown harms,” said Matt Sharp, senior counsel for Alliance Defending Freedom, one of the conservative groups pushing for the restrictions.

The medical bans are being challenged after a year where other restrictions on transgender people’s rights have advanced.

At least 10 state have adopted laws barring transgender people from using restrooms that aren’t consistent with their sex assigned at birth, and at least 20 states have enacted restrictions on transgender athletes. A handful of states also enacted laws prohibiting educators from referring to students by the names or pronouns they use without parental approval— measures that critics say would out transgender youth to their parents without their consent.

Advocates said they’re worried about the push for restrictions going further, including proposals to limit access to gender-affirming care for adults as well as children. Florida’s ban includes restrictions that make it difficult, if not impossible, for many transgender adults to get care. Missouri’s Republican attorney general had sought similar limits on care for adults before withdrawing the rule.

Despite Moody’s decision, even more states are poised to enact restrictions on the medical care. The Republican-led House in Ohio approved a similar measure the day after the Arkansas ruling, sending the measure to the GOP-led Senate despite opponents warning they’re setting the state up for a similar result.

“It will waste taxpayer money defending a bill that takes away constitutional rights and is indefensible,” said Democratic Rep. Anita Somani. The Ohio bill’s sponsor has dismissed those concerns and said he’s not worried about the same outcome.

A proposed ban is also advancing in North Carolina’s Legislature, where a Democratic lawmaker read portions of Arkansas’ ruling to her colleagues during a committee hearing the day after Moody’s decision.

Louisiana’s term-limited Democratic governor has said he plans to veto a ban Republican lawmakers have sent him, but the GOP Legislature is likely to have enough votes to override him.

And another law poised to take effect in Arkansas in August is aimed at effectively reinstating the ban by making it easier to sue providers of gender affirming care for malpractice. The American Civil Liberties Union, which challenged Arkansas’ ban, said it’s watching closely to see what the impact of the malpractice measure is.

“The intent is to put care out of reach and bully providers,” ACLU of Arkansas Executive Director Holly Dickson said. “It’s far from clear that that will actually be the impact.”

The ruling is encouraging for Sabrina Jennen, 17, who was one of four transgender youth and their families who sued to challenge Arkansas’ ban. Jennen said for the past two years she’d been worried about what would happen to her and other transgender youth in the state if the ban was allowed to take effect.

“It provides such a big wave of relief,” Jennen said. “I feel like the whole world can just take a big, deep sigh and relax a little bit easier.”

The continued push for the bans elsewhere is creating uncertainty for parents like Giles Roblyer, the father of a 12-year-old transgender boy in Ohio who said the restrictions are prompting his and other families to look at maps to figure out what states are safe to move to.

“We’re having these whispered conversations at night. Where can we flee? Can we flee?” Roblyer said. “Can we hang on?”