In the country’s first ruling on the constitutionality of a controversial “gender transition” law, a U.S. District Court Judge in Arkansas has ruled that a state law that prohibits medical professionals from providing “gender transition” care to youths is unconstitutional.

In 2021, Arkansas passed a law that prohibited medical professionals from providing “gender transition procedures” or referrals to anyone under the age of 18. Governor Asa Hutchinson vetoed the bill, calling it a “vast government overreach” by creating “new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters concerning our young people.” The State legislature overrode the Governor’s veto, and four families with transgender children and two doctors sued, claiming the law violated the Constitution’s Equal Protection and Due Process Clauses and the First Amendment.

After a week-long trial, in Brandt v. Rutledge, Judge James M. Moody of the Eastern District of Arkansas agreed with the plaintiffs as he permanently enjoined the state from enforcing the law on June 20. He wrote, if the law were to take effect, “adolescents whose parents and doctors agree that gender-affirming medical care is appropriate treatment for their gender dysphoria will be unable to receive that care in their home state and unable to get referrals from their doctors to receive care in other states. This will cause irreparable harm to the Plaintiff adolescents, Plaintiff parents and Plaintiff doctor.”

Plaintiffs in Brandt v. Rutledge include 17-year-old Dylan Brandt and his parents. Dylan was assigned female at birth but his “gender identity is male.” When he was 13, he was diagnosed with gender dystopia, a term that the opinion defines as “the lack of alignment between one’s gender identity and their sex assigned at birth,” which “can cause significant distress,” that can increase with puberty. His pediatrician referred him to the Arkansas Children’s Hospital Gender Clinic, where he received cross-sex hormone therapy that has “significantly alleviated his gender dystopia.” Brandt’s lawsuit was joined by three other youths with gender dystopia or other gender-related medical and psychological conditions that were causing them fear, anxiety, distress, and thoughts of suicide.

Moody’s opinion begins with the language of the Arkansas law, which defines “gender transition procedures” as “the process in which a person goes from identifying with and living as a gender that corresponds to his or her biological sex to identifying and living as a gender different from his or her biological sex…” The law also defined gender transition procedures as “any medical or surgical procedures, which alter, remove or instill physical or anatomical characteristics.” These include puberty-blocking drugs, cross-sex hormones, genital or non-genital gender reassignment surgeries, or “other mechanisms to promote the development or feminizing or masculinizing features in the opposite biological sex.”

The judge’s ruling contains extensive definitions of gender-related terms and refers to several scientific studies that “recognized the effectiveness and safety of gender-affirming medical care.” These included the American Academy of Pediatrics and the American Academy of Child and Adolescent Psychiatry. The studies emphasized that “transgender care is not experimental.” Rather, there are “significant positive benefits to the health and well-being” of those who receive gender-affirming care.”

The opinion also includes a discussion of informed consent requirements that detail the responsibilities of parents to disclose risks, benefits and alternative treatments and to provide mental health assessments when the patient is a minor. It has information about the availability of gender-affirming medical care in hospitals and clinics throughout the state.

After 63 pages of medical explanations that include summaries of testimony by the medical experts on both sides, Moody gave his legal conclusions, beginning with the Equal Protection Clause of the Fourteenth Amendment that requires that “all persons similarly situated to be treated alike.” He explained that sex-based classifications must be examined not by a rational basis test, but by “heightened scrutiny,” writing, “Statutes that discriminate based on sex must be supported by an exceedingly persuasive justification.”

The judge concluded that the Arkansas law “discriminates on the basis of sex “because a minor's sex at birth determines whether the minor can receive certain types of medical care under the law.” It also “discriminates against transgender people” because only transgender elect to choose the types of medical procedures covered by the law.

The State’s arguments about the dangers and risks of gender-affirming care were not persuasive, and Moody commented that “the State offered no evidence to refute the decades of clinical experience demonstrating the efficacy of gender-affirming medical care.” He wrote, “Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the State undermined the interests it claims to be advancing.”

The opinion also found the law “failed under a due process analysis” because “parents have a fundamental right to seek medical care for their children.” The third reason for finding the law unconstitutional was the First Amendment’s protection of free speech. One plaintiff physician testified that the law “restricts her freedom of speech by barring her from referring her patients to other healthcare professionals for gender transition treatment in violation of the First Amendment.” Moody agreed that the law “clearly regulates speech” and 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.”

The Human Rights Campaign reports that 20 states have thus far “overridden the recommendations of the American medical establishment and introduced hundreds of bills that target transgender and non-binary youth’s access to age-appropriate, medically necessary care.” As lawsuits like Brandt v. Rutledge are sure to be copied in other states, Judge Moody’s comprehensive opinion will no doubt be a guidepost for future litigants.