ACLU files lawsuit against Arkansas ban on puberty blockers, trans surgeries for kids

By Brandon Showalter, Opinion writer and social commentator Friday, May 28, 2021

The American Civil Liberties Union filed a lawsuit against the state of Arkansas in federal court, arguing that a new law banning hormonal and surgical gender-transitioning of minors is unconstitutional.

The lawsuit, Brandt et al v. Rutledge et al, is being brought by four Arkansas families who are challenging HB 1570, also known as the Save Adolescents From Experimentation Act. The law bans medical providers from prescribing experimental puberty-blocking drugs and cross-sex hormones to children or performing elective cosmetic surgeries such as double mastectomies and orchiectomy (removal of the testes), on children younger than 18. The law also prohibits insurers and state taxpayers' dollars from funding these practices and allows insurance companies to deny coverage of surgical genital mutilation, chemical castration and related procedures at any age. 

The SAFE Act is the first law of its kind in the nation and passed despite a last-minute veto by Gov. Asa Hutchinson, a Republican, who argued that it violated limited government principles. The Republican-majority state Legislature subsequently overrode his veto. 

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Joining the families in challenging the law are Drs. Michelle Hutchison and Kathryn Stambough, who argue that it prevents them from treating patients with "medically-necessary" care and prevents them from referring them to other providers. 

The lawsuit argues that "by prohibiting any medical treatment 'related to gender transition,' [the law] denies adolescents medically necessary treatment and prevents parents from obtaining medically necessary care for their children. It further prohibits doctors from treating their patients in accordance with the well-established standards of care or from referring patients to other doctors to receive the appropriate care."

"It violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates on the basis of sex and transgender status by prohibiting certain medical treatments only for transgender patients and only when the care is 'related to gender transition,'" the suit continues.
 
That constitutional clause states that U.S. states cannot make or enforce laws that "abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The suit also argues that the Arkansas ban is an affront to free speech, violating the First Amendment of the U.S. Constitution by prohibiting doctors from referring their patients in accordance with what they deem as accepted standards of care. 

The defendant named in the suit is Attorney General of Arkansas Leslie Rutledge who has vowed to defend the law. 

“I will aggressively defend Arkansas’ law which strongly limits permanent, life-altering sex changes to adolescents. I won’t sit idly by while radical groups such as the ACLU use our children as pawns for their own social agenda,” Rutledge said in a statement. 

The sponsor of the contested law in the state House, Rep. Robin Lundstrum (R-Elm Springs), said that she was saddened to hear of the legal action against the state's efforts "to protect children from chemical and surgical castration" and that the damage to the human body will be seen from those who regret going through the experimental procedures. 

"Our children are incredibly precious and deserve the right to grow up safe and healthy," Lundstrum said.  

She added: "I am so thankful that we have a capable attorney general in Leslie Rutledge and her wonderful staff who will fight hard to protect children against those who would harm them for political purposes. Sadly, there will be children in years to come who will be asking, ‘Where were the adults and why didn’t someone say no, this is not healthy for me to do to my body?’"