Melissa Juried Kriebel
A federal bench trial in the matter of four transgender youths in Arkansas, their parents and their doctors is set to resume Monday after recessing for five weeks due to scheduling conflicts in the court of U.S. District Judge James M. Moody Jr.
Act 626 of 2021 — the Save Adolescents From Experimentation Act — was passed in March 2021 after both the state House and Senate voted by large margins to override a veto by Gov. Asa Hutchinson. It was challenged the following month in a suit filed by the American Civil Liberties Union, and three months later, a week before the law was set to go into effect, Moody issued a temporary injunction blocking it from being enforced while the matter is in court.
A three-judge panel on the 8th U.S. Circuit Court of Appeals upheld Moody’s injunction in August. The court ruled just over a week ago that it would not take up the matter for reconsideration by the full 8th Circuit, denying an appeal motion of Moody’s ruling filed by Attorney General Leslie Rutledge’s office. The lawsuit, which was filed by the American Civil Liberties Union on behalf of the plaintiffs, contends the law violates the equal protection and due process clauses of the 14th Amendment and free speech protections under the First Amendment.
Plaintiffs in the case, represented by attorneys from the American Civil Liberties Union, are Dylan Brandt, Parker Saxton, Sabrina Jennen and Brooke Dennis and their parents, Joanna Brandt, Donnie Saxton, Aaron and Lacey Jennen, Shayne and Amanda Dennis, and two physicians who provide health care for transgender teens, Dr. Michele Hutchison and Dr. Kathryn Stambough.
Defendants in the case, represented by a legal team from the state’s attorney general’s office, are Rutledge, Medical Board Director Amy Embry and Medical Board members Sylvia Simon, Robert Breving Jr., John Scribner, Elizabeth Anderson, Rhys Branman, Edward “Ward” Gardner, Rodney Griffin, Betty Guhman, Bryan Hyatt, Timothy Paden, Don Philips, William Rutledge, David Staggs and Veryl Hodges.
An indication of the national attention the lawsuit has drawn are the numbers of business groups and medical associations that have filed amicus — friend of the court — briefs on the side of the plaintiffs and the number of states that have joined on the side of the defendants.
The law has been heralded by state lawmakers and the attorney general’s office as a needed protection to keep Arkansas children safe from life-altering medical procedures at a time when they are too young to make such decisions. Opponents of the law say it is a violation of the constitutional rights of children, their parents and their health care providers, and places transgender young people in danger by denying them lifesaving gender affirmation care.
In affirming Moody’s temporary injunction of Act 626, the 8th Circuit ruled that the law discriminates on the basis of sex and under the judicial standard of strict scrutiny, the state has the burden to demonstrate that a compelling interest exists on the part of the state to justify the discrimination in order for the law to stand.
The law — authored by Republican Rep. Robin Lundstrum of Elm Springs and passed on primarily party-line votes — would prohibit doctors from providing or referring transgender young people care related to gender dysphoria.
The condition is defined by the Mayo Clinic in Rochester, Minn., as the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex at birth or sex-related physical characteristics.
The trial began Oct. 17 and recessed Oct. 21 during which time the plaintiffs presented their case and the defense began with three witnesses, two of whom testified under seal because they were testifying in regard to health records of the minor plaintiffs.
During the first week of trial, parents of the affected children and one of the teens himself — 17-year-old Dylan Brandt — took the stand to recount their experiences in dealing with gender dysphoria and the paths each took in dealing with the issue at a personal level while navigating what has become a political minefield in Arkansas and elsewhere around the nation. The Arkansas General Assembly, which is dominated by conservative Republicans, has taken a strong stance against gender-affirming health care, calling it experimental and equating such care to child abuse.
But during the first week of the trial, much of the plaintiffs’ case was buttressed by expert testimony from specialists in pediatric gender dysphoria, including a California psychiatrist with three decades of experience in the field who served on committees that established standards of care in 2011 and 2021 that are used extensively in treating gender dysphoria.
Dr. Dan Karasic testified to the protocols for diagnosing gender dysphoria, standards of care established by the World Professional Association for Transgender Health and the consequences of individuals with gender dysphoria receiving improper care or no care at all. He said people suffering from gender dysphoria often suffer elevated rates of depression or anxiety and are prone to suicidal ideations, attempts or self-mutilation.
Pediatric endocrinologist Dr. Deanna Adkins described the use of puberty blockers and hormonal therapy to treat gender dysphoria and the process of evaluating patients and their families, and she stressed that all therapies are individualized to the patient.
Dr. Armand Antommaria, a bioethicist and pediatric hospitalist with Cincinnati Children’s Hospital, described the research that has gone into treatments for gender dysphoria and the process of consent that combines caregivers, parents or guardians and pediatric patients to ensure such patients are truly suffering from gender dysphoria rather than some other condition. He said that Act 626, should it be allowed to go into effect, would present a critical ethical dilemma for caregivers.
When the trial resumes on Monday, the state is expected to present testimony from a number of expert witnesses, including Dr. Patrick Lappert, a cosmetic surgeon who practices in Decatur, Ala., and operates a skin care clinic there; Mark Regenerus, a sociologist with the University of Texas at Austin; Dr Stephen Levine, a clinical psychiatrist at Case Western Reserve University School of Medicine in Ohio; and Dr. Paul Hruz, a pediatric endocrinologist in St. Louis who specializes in the treatment of pediatric diabetes.