Today, the Eighth Circuit Court of Appeals reversed the decision blocking Arkansas’s ban on gender-affirming health care for transgender youth. The ruling means the law will almost certainly go into effect — but not immediately.
What the Court Said
- Equal Protection: The court leaned heavily on the U.S. Supreme Court’s recent decision in United States v. Skrmetti (upholding Tennessee’s similar ban), devoting the first 13 pages to saying this case is controlled by Skrmetti. It applied the lowest level of judicial scrutiny — rational basis review — and selectively cited facts from trial that could support the law, while ignoring extensive evidence showing the ban is based on bias, not science.
- Due Process (Parental Rights): The court said parents do not have a broad constitutional right to obtain prohibited medical treatments for their children if the state deems them unsafe, even if those treatments are recommended by doctors.
- First Amendment (Referral Ban): The court narrowly defined “referrals” to mean formal medical referrals, which it treated as part of medical conduct rather than pure speech. This means the state can ban formal referrals, but doctors are still free to talk to patients about the availability of care.
Why This Matters
Once the injunction is lifted, the ban will be fully enforceable:
- Puberty blockers, hormones, and gender transition care for anyone under 18 will be prohibited/subject to limited exceptions in the statute.
- Doctors will be banned from making formal medical referrals for gender transition care for minors, though they can still discuss options informally.
The Dissent Is Scathing
Judge Kelly points out:
“The State disputes none of the more than 300 factual findings… reveal[ing] a startling lack of evidence connecting Arkansas’s ban on gender-affirming care with its purported goal of protecting children.”
She highlights:
- Every major medical association supports gender-affirming care.
- There’s no evidence of harm or regret among Arkansas youth who’ve received it.
- The state allows equally risky or less-tested treatments for other conditions.
And the gut punch:
“Not all adolescents with gender dysphoria will live to age 18 if they are unable to get gender-affirming medical treatment.”
ACLU of Arkansas Response
We are reviewing all legal options, and we’ll continue working with our legal and medical partners to ensure families get accurate, up-to-date information. Trans youth belong in Arkansas — and we will keep fighting for their right to the healthcare they need.