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Arkansas bill allowing malpractice suits for transgender minors’ health care passes committee


Arkansas bill allowing malpractice suits for transgender minors’ health care passes committee

Feb 13, 2023 | 9:00 pm ET
By Tess Vrbin
Arkansas bill allowing malpractice suits for transgender minors’ health care passes committee
Dr. Gwendolyn Herzig, owner of Park West Pharmacy in Little Rock, speaks against Senate Bill 199 before the Senate Judiciary Committee on Feb. 13, 2023. Herzig's pharmacy provides gender-affirming hormones to transgender Arkansans. (Tess Vrbin/Arkansas Advocate)

A proposed law that would open the door for medical malpractice lawsuits against Arkansas doctors who provide gender-affirming care to transgender minors passed the Senate Judiciary Committee on Monday and will go to the full Senate for a vote.

Senate Bill 199 would create civil liability for a doctor who “performs a gender transition procedure on a minor … if the minor is injured, including without limitation any physical, psychological, emotional, or physiological injury, by the gender transition procedure, related treatment, or the after effects.”

The procedures in question are hormones, puberty blockers and breast or genital surgeries, the same things banned by the Save Adolescents From Experimentation (SAFE) Act of 2021, which was blocked by a federal judge and awaits a ruling from the same judge after a trial in 2022.

Sen. Gary Stubblefield (R-Branch)
Sen. Gary Stubblefield (R-Branch)

Senate Bill 199 would allow private enforcement of the SAFE Act, said Michael Cantrell, an assistant solicitor general with the Arkansas Attorney General’s Office, in response to questions from Sen. Clarke Tucker (D-Little Rock).

Twelve people spoke against the bill, including doctors, social workers and LGBTQ activists. Several have addressed other legislative committees in the 2023 session so far, opposing other bills they said also target the LGBTQ community and transgender Arkansans in particular.

Those bills are House Bill 1156, which would restrict bathroom use in public schools based on students’ sex assigned at birth, and Senate Bill 43, which originally placed restrictions on drag performances but was heavily amended in order to hold up in court.

Arkansas bill allowing malpractice suits for transgender minors’ health care passes committee
Sen. Clarke Tucker (D-Little Rock)

All three bills are sponsored by Sen. Gary Stubblefield (R-Branch) and Rep. Mary Bentley (R-Perryville), who also sponsored the SAFE Act in 2021.

Both have said their primary goal with this legislation is to protect children from harm.

Stubblefield, the chair of the Judiciary Committee, said Senate Bill 199 combats “gender ideology” and “language games that these ideologues want us to play.”

“There’s no such thing as having a place on a gender spectrum,” Stubblefield said. “With the rarest of exceptions, we are born one of two sexes, male or female. Sex is not assigned. It is an integral part of who we are, right from the moment of conception.”

SAFE Act background

The SAFE Act 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 against the SAFE Act over seven days in October, November and December 2022. The trial was the first in the U.S. over a ban on gender-affirming care for transgender youth.

In October, after the plaintiffs’ attorneys rested their case, Moody denied a motion from the defense to dismiss the suit. Arkansas Assistant Solicitor General Michael Cantrell was one of the attorneys for the defense.

The parents of all four minor plaintiffs testified that their children’s mental health vastly improved as a result of transitioning, and they said it would be an emotional and financial burden to travel to other states for gender-affirming care.

​​Dylan Brandt, the lead plaintiff and the only minor to testify, told the court that the hormone therapy he has received was life-changing.

The state brought forth witnesses whose expertise Moody questioned due to their minimal experience with transgender medical patients, as well as two adults who no longer live as transgender.

The state’s witnesses frequently cited studies from Sweden, Finland and the United Kingdom that claim gender-affirming care is unsafe for minors.

Senate Bill 199 cites the same studies. So did Toni Rose, director of the Arkansas Legislative Prayer Caucus and the only witness for the bill on Monday.

Dr. Janet Cathey, who spoke against the bill on Monday, said Arkansas doctors should base their practices on American standards of care. Cathey is the director of transgender care at Planned Parenthood Great Plains’ Little Rock clinic.

Cathey testified for the defense in October that she had never prescribed puberty blockers and that she would only prescribe hormone therapy to patients 16 and older.

Medical groups, including the American Medical Association and American Psychiatric Association, lobbied against the SAFE Act, saying that gender-affirming hormones and puberty blockers are safe for children and that medical decisions should remain in the hands of doctors and their patients.

There is no jury in the case, and Moody is expected to issue a ruling this month.

He called gender-related medical treatments “mutilation” and said children might grow up to regret receiving them, particularly surgeries.

Tucker asked Cantrell if he was aware of any minors receiving gender-related surgeries in Arkansas. Cantrell said it’s “difficult to know” but that he did not know of any for sure.

The bill would create a 30-year statute of limitations if an adult who received medical care for gender dysphoria as a child wanted to take legal action against the doctor that provided the treatment. Current law regarding medical practice lawsuits sets a two-year timeframe for filing litigation.

“The risk of serious financial responsibility will bring this act of barbarism to an end faster than any protest you can have,” Stubblefield said.

The bill and its supporters present a “gross mischaracterization” of health care for transgender minors, said Tucker, one of two Democrats on the committee and the only one present at the meeting.

Tucker said his understanding of gender-affirming health care is that “it lets them know that they are loved and affirmed for who they are.”

“The message they receive [from this bill] is that the state they live in hates them,” he said before casting the only vote against the bill.

Existing laws and standards

Standards of medical care are the benchmark for liability in medical malpractice lawsuits, Senior Assistant Attorney General Jordan Broyles Hallenbeck said in response to questions from Tucker. She added that she did not believe Senate Bill 199 created a standard of care.

Tucker then asked if it was true that the proposed law would create “civil liability for health care professionals based on something other than standards of care established in the industry.”

Hallenbeck said she disagreed and it would be possible for a jury to determine a doctor not liable under the law, which includes a “safe harbor” section. Tucker said this obscured the purpose of the bill.

Dr. Janet Cathey, an obstetrician-gynecologist who has treated transgender patients since 1982, said the bill does in fact create a standard of care. She also said medical negligence and malpractice laws are currently sufficient to protect children from harm.

“There are not any [existing] procedures where state law tells me how I have to practice,” Cathey said.

Sen. Ben Gilmore (R-Crossett) said the bill would not do that, and Cathey insisted it would.

Senate President Pro Tempore Bart Hester (R-Cave Springs) asked Cathey if minors must consent to medical procedures. Cathey said minors and their parents must both consent.

Hester asked if children can receive procedures they do not want if their parents insist on it.

“I don’t see that circumstance,” Cathey said.

Stubblefield and other committee members characterized all gender-related medical treatments as “irreversible.”

Social worker Courtney Frierson said this is not the case. Treatment usually begins with hormones such as estrogen and testosterone, the effects of which are reversible, and puberty blockers are simply “a placeholder” for transgender youth who have not yet experienced puberty, Frierson said.

Dr. Gwendolyn Herzig is a Little Rock pharmacist and transgender woman who provides hormones to transgender Arkansans who have received prescriptions for them. She said she has never met a patient who regretted transitioning.

“Bills like Senate Bill 199 are designed to hinder, not help, Arkansans by creating barriers to the evidence-driven health care they deserve under the guise of protecting the young and innocent,” Herzig said.

Sen. Matt McKee (R-Pearcy) asked Herzig about her genitalia, receiving a strong negative reaction from the crowd in the room.

Herzig said she would not answer the “highly inappropriate” question.

“I’m a health care professional and a doctor,” she said. “Please treat me as such.”

Mental health issues

Hester questioned children’s ability to make “life-altering decisions.” Marie Mainard O’Connell, pastor of Second Presbyterian Church in Little Rock, challenged this statement while speaking against Senate Bill 199.

“As a minister, I wonder when one can make a life-altering decision — at what age can a child choose Christ?” O’Connell said.

O’Connell is a mother to a transgender child, and she said one of her biggest problems with the bill is that its defense for doctors to provide gender-affirming care requires the minor patient to have “no other mental health concerns.”

The section lists depression, autism and eating disorders as examples. O’Connell said the section should be deleted from the bill, especially since some of the examples have nothing to do with gender dysphoria.

Frierson agreed that the section O’Connell mentioned is “outright disability discrimination.” She has worked with transgender Arkansans for 15 years and seen how bias against their gender identities negatively affects their mental health, she said.

“Trans youth are not inherently prone to suicide, depression or anxiety because of their gender identity,” Frierson said. “They are at higher risk because of how they are stigmatized in society, which includes legislation like this.”

Some transgender minors in Central Arkansas have had increased thoughts of suicide in the past month due to the Legislature’s consideration of House Bill 1156 and Senate Bill 43, said Jessica Disney, a transgender woman who works with marginalized youth.

Transgender Arkansas minors did not have access to gender-affirming health care when Haley Prentice was growing up, she said, and her dysphoria led her to develop unhealthy coping mechanisms.

“Sen. Stubblefield mentioned something about trans youth being in ‘bondage’ [from medical procedures],” Prentice said. “Let me say this: I was in bondage for 40 years, 40 years of denying who I was. … If you’re transgender, you will be transgender. It’s how you deal with this, and I don’t want the youth of Arkansas to be in bondage and not be able to do something about their condition.”