US District Court rules Arkansas ban on child sex changes 'unconstitutional'

On Tuesday, United States District Judge James M. Moody Jr. ruled the first bill to outlaw sex changes for those under 18 years of age to be unconstitutional.

According to the ruling, the 2021 Arkansas HB-1570, also known as Act 626, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the First Amendment. 

The court concluded, "Act 626 prohibits medical care on the basis of sex and the State has failed to meet its demanding burden of proving the Act advances its articulated interests" so it violates the Equal Protection clause of the Fourteenth Amendment. 

Under the Due Process Clause, the ruling stated, "the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary." It continued, "Act 626’s ban of all gender transition procedures 'including without limitation physician's services, inpatient and outpatient hospital services, or prescribed drugs related to gender transition' is not narrowly tailored to achieve the State’s articulated interests."

Part of the Bill said, "healthcare professionals shall not refer any individual under eighteen (18) years of age to any healthcare professional for gender transition procedures.” The judgment said that this was a violation of medical providers' free speech rights under the First Amendment. 

"It effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available," the judge wrote. 

The ruling noted that the Arkansas State Medical Board Regulates the Practice of Medicine in that state and that "Arkansas does not ban medical treatments for lack of randomized controlled clinical trials supporting their use." Nor do they "ban medical treatments with a limited evidence base."

"Even where there are known risks of treatment and no evidence of effectiveness, the Board leaves treatment decisions to patients, parents, and their physicians," it said. "Arkansas does not ban medical treatments for minors on the rationale that minors cannot provide informed consent. In Arkansas, parents usually are required to consent to medical treatment for their minor children, and the decision about whether to undergo care is between the physician and the parent and the minor patient."

The Bill attempted to prohibit healthcare professionals from providing any "gender transition procedures" which they defined as any procedure that created the physical characteristics "that resemble a sex different from the individual's biological sex" through the use of puberty blockers, cross-sex hormones, and surgery. 

Act 626 was passed into law in April 2021 after the legislature voted to override then-Republican Governor Asa Hutchinson's veto. Hutchinson said the bill was a "vast government overreach." 

"House Bill 1570 is opposed by the leading Arkansas medical associations and the concerned expressed is that denying best medical care to transgender youth can lead to significant harm to the young person, from suicidal tendencies and social isolation to increased drug use," he warned. 

After the veto, former President Donald Trump called Hutchinson, a "lightweight RINO." He then endorsed current Arkansas Governor Sarah Huckabee Sanders. 

Hutchinson announced he is running for the 2024 GOP presidential nomination in April. 

The state is expected to appeal the ruling.