Filed Date: May 25, 2021
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On April 6, 2021, the Arkansas legislature passed H.B. 1570 — the "Save Adolescents from Experimentation” (SAFE) Act — over the governor’s veto. The Safe Act banned healthcare professionals from providing gender transition procedures, including puberty blockers and hormones, to anyone under 18 or from referring anyone under 18 to any healthcare professional for such procedures. Additionally, the SAFE Act prohibited coverage of gender transition procedures for minors by Medicaid or private insurance. 4 families with transgender children and 2 pediatricians brought this complaint against various Arkansas state officials in the Eastern District of Arkansas on May 25, 2021. The families and doctors, represented by the National ACLU, Arkansas ACLU, and private law firms, claimed the SAFE Act was unconstitutional for: (1) violating the Equal Protection Clause of the 14th Amendment by discriminating on the basis of sex; (2) violating the Due Process Clause of the Fourteenth Amendment, and (3) violating the First Amendment by prohibiting healthcare providers from referring their patients for medical treatments in accordance with the accepted medical standards to treat gender dysphoria. The relief sought by the families included: (1) declaratory judgment that the SAFE Act was unconstitutional, (2) preliminary and permanent injunctions on the SAFE Act; and (3) an award of reasonable attorneys’ fees. The case was assigned to Judge James Maxwell Moody, Jr.
On June 17, 2021, the United States filed a Statement of Interest echoing the Plaintiffs’ claim that the SAFE Act violated the Equal Protection Clause of the 14th Amendment. Several national and state organizations of health professionals also filed amicus briefs in support of the plaintiffs. These organizations included the American Medical Association and Arkansas Psychiatric Society.
On July 21, 2021, the court denied Arkansas’ motion to dismiss and granted the Plaintiffs’ motion for a preliminary injunction on all three proposed grounds. On August 2, 2021, Judge Moody, Jr. elaborated in a Supplemental Order, 551 F.Supp.3d 882 (E.D. Ark. 2021), focusing on the families’ equal protection claim and explaining that the SAFE ACT “rests on sex-based classifications and… transgender people constitute at least a quasi-suspect class.” Moreover, the court found that the stated intents of the bill (protecting children from experimental treatment and regulating medical ethics) were pretextual. The court looked, among other things, at overwhelming medical testimony that “gender-affirming for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people.”
Arkansas appealed the decision on August 20, 2021 to the United States Court of Appeals for the Eighth Circuit. Both sides filed briefs, and again, many notable individuals and institutions filed amici briefs; the United States again filed a brief supporting the Plaintiffs. On August 25, 2022, Judges James B. Loken, Jane Kelly, and Katherine M. Menendez upheld the lower court's injunction because the lower court had not abused its discretion in granting a preliminary injunction based on Plaintiffs’ equal protection claim. The three Judges affirmed arguments that transgender youth would suffer "irreparable harm" absent preliminary injunction and that enforcing the law would prohibit medical treatment that conforms with the recognized standard of care. The Judges also agreed that the SAFE Act is not substantially related to its purported purposes of protecting children from experimental medical treatment and regulating medical ethics. The Court did not address the State’s challenges to Plaintiffs’ other claims. 47 F.4th 661. Arkansas requested an en banc or panel rehearing of their appeal of the preliminary injunction, but their request was rejected on November 16, 2022. The order itself did not contain any rationale, but a concurrence by Judge Colloton, joined by two other judges, explained that Arkansas had not requested a stay for the 15 prior months.
The district court held an eight-day bench trial in October 2022. On June 20, 2023, the court issued its findings of facts and conclusions of law, entered judgment for the plaintiffs on all claims, and enjoined the state from enforcing the law permanently. 2023 WL 4073727. Among its findings of facts, the court found that transgender care was not experimental care, and that providing treatment for gender dysphoria wouldn't cause a person to be or remain transgender because there was no treatment that had the ability to change a person’s gender identity. In addition, the court found that parents or guardians would still be required to provide informed consent in order for their children to receive medical treatment, and the informed consent process was adequate to enable minor patients and their parents to make decisions about gender-affirming medical care for adolescents. Further, the risks of gender-affirming medical care were not categorically different from the types of risks that other types of pediatric healthcare pose, and for many adolescents the benefits of treatment greatly outweighed the risks. The court also found that adolescents with gender dysphoria were unlikely to de-transition or desist in their transition whether or not they received gender-affirming medical care.
As to conclusions of law, the court held that the SAFE Act violated the equal protection clause because it discriminated on the basis of sex, as a minor’s sex at birth determined whether the minor was able to receive certain types of medical care under the law. The court also held that the law discriminated against transgender people, as the law prohibited medical or surgical procedures related to gender transition, medical care that only transgender individuals chose to undergo. Further, the court found that Arkansas hadn’t met its burden of providing a persuasive justification for the differential treatment of transgender individuals. The state provided five reasons: i) that there was a lack of evidence of efficacy of the banned care; ii) that the banned treatment had risks and side effects; iii) that many patients would desist in their gender incongruence; iv) that some patients would later come to regret having received irreversible treatments; and v) that treatment was being provided without appropriate evaluation and informed consent. The court determined that none of these reasons were persuasive or supported by evidence at the trial. As to plaintiffs' due process claim, the court held that the Act's ban on all gender transition procedures was not sufficiently narrowly tailored to achieve the state's asserted interests, noting the plaintiff parents' fundamental right to make medical decisions for their children. Finally, the court held that the Act regulated physician speech -- effectively prohibiting physicians from informing their patients about the treatments -- and that it was a content and viewpoint-based regulation of speech subject to strict scrutiny. Applying that standard, the court held that the Act violated the First Amendment because Arkansas failed to prove that its interests in the safety of adolescents from gender transitioning procedures were "compelling, genuine, or even rational." Thus, the court entered judgment for the plaintiffs and permanently enjoined enforcement of the Act.
Achutha Raman (10/15/2021)
Sophia Bucci (11/18/2022)
Simran Takhar (6/22/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/59935566/parties/brandt-v-rutledge/
Armbruster, Emily T. (Arkansas)
Beeney , Garrard R (New York)
Askew, Jess L. III (Arkansas)
Baia, Elizabeth (District of Columbia)
Bershteyn, Boris (Arkansas)
Moody, James Maxwell Jr. (Arkansas)
See docket on RECAP: https://www.courtlistener.com/docket/59935566/brandt-v-rutledge/
Last updated Feb. 7, 2024, 3:05 a.m.
State / Territory: Arkansas
Filing Date: May 25, 2021
Case Ongoing: Yes
Four transgender minors, their parents, and their doctors
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2023 - None
Content of Injunction: