Trial challenging Arkansas ban on gender-affirming care for minors resumes

The trial against Arkansas’ ban on gender-affirming health care for transgender youth resumed Monday with the second witness for the defense, led by Attorney General Leslie Rutledge’s office.

Monday’s witness was Dr. Stephen Levine, an Ohio-based psychiatrist with a focus on sexual dysfunction and “transsexualism,” as transgender identity was called in the 1970s when his career began.

Levine said psychotherapy should be the primary treatment for gender dysphoria and claimed doctors are too quick to prescribe hormones to minors. Much of his testimony was in contrast to opinions offered by six medical professionals called by the plaintiffs during the first half of the trial last month.

The plaintiffs’ attorneys from the American Civil Liberties Union rested their case after the first three days of the trial in October. Dylan Brandt, the primary named plaintiff and a transgender teenager from Greenwood, testified on the third day about his experience receiving gender-affirming testosterone treatment, which Act 626 of 2021 would ban.

The law, known as the Save Adolescents From Experimentation (SAFE) Act, prohibits physicians from providing “gender transition” treatments like hormones, puberty blockers and surgeries to minors. The act became law in May 2021 after the Arkansas Legislature overrode Republican Gov. Asa Hutchinson’s veto.

U.S. District Court Judge James Moody blocked implementation of the SAFE Act in July 2021 with a preliminary injunction that was upheld in August by a three-judge panel of the 8th U.S. Circuit Court of Appeals. The state requested a rehearing on the panel’s ruling in October, but the panel rejected the request earlier this month.

Moody is overseeing the ongoing trial — the first trial over such a ban in the U.S. In October, he denied a motion from the defense to dismiss the case.

Provider opposition

Medical groups, including the American Medical Association and American Psychiatric Association, have lobbied against Act 626, saying the banned treatments are safe and that medical decisions should remain in the hands of doctors and their patients.

Six doctors who have treated transgender minors, including two who have practiced in Arkansas, echoed these statements in October. Along with the parents of the four minor plaintiffs — including Dylan Brandt’s mother, Joanna — they said transgender youths’ mental health and self-image vastly improve after gender-affirming care.

The state has argued there is a lack of evidence for the effectiveness of this care and suggested transgender minors should wait for treatments until they are 18.

The plaintiffs’ experts said there are nationally-recognized guidelines and standards of care for transgender youth that health care providers in Arkansas should be following. Those standards come from the World Professional Association for Transgender Health, an organization of medical care providers that formed in 1979 to focus on on best practices for treating transgender patients.

Monday’s testimony

Levine said WPATH’s mission is advocacy, not science.

“They call themselves a scientific organization, a policymaking organization and an advocacy organization, and those things are incompatible,” he said.

He used to be involved with WPATH but “departed from it” because he thought the organization “decided they knew best about people without evidence” for the sake of what he believed was a political agenda.

Levine has treated roughly 50 minors in his nearly 50-year career, and he is not familiar with how Arkansas doctors treat transgender minors, he said in response to questions from ACLU attorney Leslie Cooper.

October testimony

Dr. Michele Hutchison and Dr. Kathryn Stambough testified for the plaintiffs last month. 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.

Both doctors said they fully inform transgender minors and their parents about gender-affirming medical treatments before receiving consent and administering them. Adolescents have the “cognitive maturity” to make informed medical decisions alongside their parents, Hutchison and Stambough said.

The parents of the four minor plaintiffs confirmed that medical professionals have been thorough in their explanations of how gender-affirming treatments affect young people. All four minors have also received psychotherapy, their parents said.

Levine said informed consent is “a process, not an event” and doctors should not bring up the option of hormone treatments until after several therapy sessions. He also said minors might regret transitioning after they become adults, especially if they want biological children, since hormones can affect fertility.

“We can’t be sure that a 14- or 15- or 17-year-old knows what his or her future is going to be, and if they cannot be prudent, we have to be prudent,” Levine said. “If the medical profession isn’t prudent, isn’t careful, isn’t aware of the limitations [of gender-affirming care], I guess legislatures make the decisions.”

Stambough and Hutchison said their minor patients haven’t regretted transitioning. They also said their patients see futures for themselves that they did not see before receiving gender-affirming care, as the minor plaintiffs’ parents confirmed.

The Gender Spectrum Clinic does not recommend or provide surgeries to transgender youth, Hutchison and Stambough said, and they rarely prescribe puberty-blocking hormones because they rarely see patients who have not started puberty. Most of the gender-affirming treatments they prescribe are hormones such as testosterone, progesterone and estrogen.

Levine said he has recommended hormones to transgender patients in some “fraught” cases. 

“I am not motivated to prohibit care,” he said. “I am motivated to clarify the scientific basis on which the care is provided, and if the scientific basis is inadequate, [I hope] for doctors to be cautious.”

The plaintiffs’ witnesses said they are concerned that transgender minors’ mental health would deteriorate, possibly to the point of suicidal ideation, if they are unable to receive gender-affirming care in Arkansas.

Levine acknowledged that “it would be a shocking and devastating thing for them” to cease treatment, and he said Act 626 should have included a provision that would help minors in this position.

The defense will call two more witnesses Tuesday, and the trial is expected to conclude Thursday.