Arkansas ban on gender-affirming care for transgender youth awaits court ruling

*This story was updated at 6:25 p.m. on Thursday, Dec. 1, 2022, with additional details from Thursday’s testimony.

Arkansas’ ban on gender-affirming health care for transgender minors awaits a decision from a federal judge after the defense rested its case Thursday.

The proceedings lasted eight days, four in October and four in November, as the Arkansas Attorney General’s Office defended Act 626 of 2021, known as the Save Adolescents From Experimentation (SAFE) Act. It prohibits physicians from providing “gender transition” treatments like hormones, puberty blockers and surgeries to those under age 18.

Act 626 became law in May 2021 when the Arkansas Legislature overrode Gov. Asa Hutchinson’s veto. Four transgender Arkansas minors, their parents and two physicians who have treated those minors filed suit just days later, represented by attorneys from the American Civil Liberties Union.

U.S. District Judge James Moody enjoined enforcement of the law in July 2021. A panel from the 8th U.S. Circuit Court of Appeals upheld the injunction, and the full court later refused to rehear the ruling.

Moody presided over the trial, which was the first in the U.S. over such a ban. In October, Moody denied a motion from the defense to dismiss the case.

There is no jury in the case, and Moody is solely responsible for the decision about whether Act 626 will go into effect.

The parents of all four transgender minor plaintiffs testified in October that their children’s mental health and self-image have improved significantly since socially and medically transitioning. Dylan Brandt, the primary named plaintiff and a transgender 17-year-old from Greenwood, testified in October that receiving testosterone has “changed [his] life for the better” and that he is finally comfortable looking in a mirror.

If Act 626 goes into effect, the only ways for transgender minors to continue receiving gender-affirming care would be to travel or move, creating major financial and emotional burdens for the four families, the parents said.

The defense and its witnesses have claimed that minors cannot know for certain that they will still consider themselves transgender as adults and that there is not enough evidence that gender-affirming hormone treatments improve transgender people’s quality of life.

Two adults who “detransitioned,” or lived as transgender but now live as their assigned gender identities, testified for the defense Wednesday. Neither has ever lived or sought medical care in Arkansas, and both transitioned as adults. They both said their Christian spiritual awakenings led them to denounce and regret their gender transitions.

Two doctors who testified for the plaintiffs last month, Dr. Michele Hutchison and Dr. Kathryn Stambough, said their young patients have not regretted transitioning. Hutchison started the Gender Spectrum Clinic at Arkansas Children’s Hospital in Little Rock, and Stambough took over as the clinic’s director this year after Hutchison took a new job in another state.

They also said they fully inform transgender minors and their parents about gender-affirming medical treatments before gaining their consent and administering the treatments.

Adolescents have the “cognitive maturity” to make informed medical decisions alongside their parents, Hutchison and Stambough said.

The parents of the minor plaintiffs confirmed that medical professionals have been thorough in their explanations of how gender-affirming treatments affect young people.

Attorneys for both sides will submit post-trial briefs at a date they will set together, they agreed at the end of the trial Thursday. Moody will then make his decision, which can be appealed.

Thursday’s testimony

The defense’s eighth and final witness was Dr. Paul Hruz, a pediatric endocrinologist at Washington University in St. Louis. He said part of his professional life is to evaluate the quality of evidence in scientific studies before they are published in research journals.

Hruz shared some opinions with Dr. Stephen Levine, a Cleveland-based psychiatrist who said in his Monday testimony that psychotherapy should be the primary treatment for gender dysphoria and claimed doctors are too quick to prescribe hormones to minors. Much of Levine’s testimony was in contrast to opinions offered by the six medical professionals who testified for the plaintiffs in October, including Hutchison and Stambough.

The American Medical Association, American Psychiatric Association, American Academy of Pediatrics and Endocrine Society have all said gender-affirming care is safe for minors.

Levine said medical groups that support gender-affirming care prioritize “advocacy” over science, leading doctors to make poorly informed decisions.

Hruz said he sees “low-quality” evidence in his analysis of studies that conclude gender-affirming care is safe, especially since hormones can impair fertility.

“One cannot rely upon an uncritical blank acceptance of policy statements to justify an adverse effect,” Hruz said.

In response to questions from Arkansas Deputy Solicitor General Dylan Jacobs, Hruz questioned the research of Dr. Jack Turban, a psychiatrist from San Francisco who has treated transgender minors and who testified for the plaintiffs in October.

Hruz has prescribed puberty blockers and hormone therapy to treat conditions unrelated to gender identity, but he has not prescribed them to anyone with gender dysphoria, he said.

“My assessment of risk and benefit would make it unethical and unprofessional for me to intervene in that way,” Hruz said.

Armand Antommaria, a Cincinnati-based pediatric bioethicist who testified for the plaintiffs in October, said medical recommendations based on “low-quality” evidence are ethical as long as providers use the best available evidence and fully inform patients of the potential risks and benefits of treatment.

Involvement in other cases

Hruz received a medical ethics certification from the National Catholic Bioethics Center, which has published two articles and a book chapter he wrote, he said in response to questions from ACLU attorney Chase Strangio.

The National Catholic Bioethics Center believes “gender transitioning insists on affirming a false identity and, in many cases, mutilating the body in support of that falsehood,” according to its “Brief Statement on Transgenderism” that Strangio read aloud to the court.

Strangio asked Hruz if he agreed with the statement.

“There are many ways to interpret that statement and many of the words that are used,” Hruz responded. “I think the word ‘mutilation’ is appropriate when defined as changing the body in a way that takes away normal functioning.”

Hruz confirmed that he signed onto briefs filed in other federal cases on the side that opposed transgender students being called by the names and pronouns that match their gender identity.

One brief said “conditioning children into a lifetime of impersonating someone of the opposite sex” is “a form of child abuse.” Hruz said he “would not have chosen that wording” but “represented the assessment” put forth in the brief.

He signed onto another brief that claimed schools that affirm students’ transgender identities are upholding a “delusion” and a “charade.”

Hruz wrote and filed a brief in Meriwether v. Hartop, in which a university professor refused to use a transgender student’s pronouns. The U.S. 6th Circuit Court ruled in the professor’s favor earlier this year.

“The popular notion regarding ‘gender identity’ that says a person has a ‘boy mind’ in a ‘girl body’ is not true,” Strangio read from Hruz’s brief. “… It is an idea that should be summarily dismissed.’

Hruz attended a 2017 Alliance Defending Freedom conference that included a discussion about gender identity. Sociologist Dr. Mark Regnerus and plastic surgeon Dr. Patrick Lappert were also at the conference, as they said in their Tuesday testimony and as Hruz confirmed.

Moody and the plaintiffs’ attorneys questioned the value of testimony from Regnerus and Lappert, who expressed doubts about the safety and effectiveness of gender-affirming care but said they have little experience with transgender patients.