Transphobia: Unconstitutionally Written Into Law
Arkansas has recently become one of the first states in the nation to propose and pass a bill restricting access to gender-affirming healthcare services to transgender children [1]. This is just one decision within a greater legislative effort by the Republican Party working to target transgender individuals, specifically transgender children. Legislators in North Carolina, Texas, and Alabama proposed and passed similar legislation, along with other laws attempting to limit transgender students from participating in school-based sports and utilizing bathrooms that coincide with their gender identity [2].
Titled the Save Adolescents From Experimentation Act, the legislation bars doctors from assisting transgender children, anyone under the age of 18, from receiving transition-related surgery, hormone therapy, or puberty-blocking drugs. If a doctor acts in such a way, they can be stripped of their medical licenses and subsequently sued. Additionally, these gender transition procedures cannot be covered by insurance [3].
This law is unconstitutional because it discriminates based on sex. It restricts a doctor’s First Amendment Rights because it bans them from referring minors to providers who offer gender transition treatments and impedes parents’ right to follow medical advice for their children [4].
Its supporters in Arkansas explained the reasoning behind the bill. According to the Family Research Council, one of the organizations behind this bill states that “gender transition is an experiment; no ‘treatment’ can change a person’s genetic composition, and no studies have demonstrated long-term benefits.” They explain that these procedures are harmful to children because such processes “interrupt the development of children and irreversibly alter their bodies.”
Oppositely, the American Medical Association took a differing standpoint on this issue based on actual scientific evidence backed by numerous medical professionals [5]. The AMA asked governors to oppose such legislation, stating that this would be “a dangerous intrusion into the practice of medicine.” Further, they explained that “Every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people.” Similar statements against the legislation were brought about by the American Psychological Association, the American Psychiatric Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry (AACAP), and the Endocrine Society [6]. The scientific community was in consensus about the negative impact of this piece of legislation.
After much debate within the legislature, it was passed within both the Arkansas House and the Senate. Governor Asa Hutchinson ended up vetoing the bill, pointedly calling the bill a “vast government after hearing from all sides of the argument. Unfortunately, the unconstitutional bill was passed after overriding the Governor’s veto with a simple majority in both houses [7].
The bill itself specifically outlaws gender reassignment procedures, specifically for transgender children. This is unconstitutional due to discrimination based on sex, violating the Equal Protection Clause of the Fourteenth Amendment [8]. The wording of the bill states that “Services provided when a physician has otherwise diagnosed a disorder of sexual development that the physician has determined through genetic or biochemical testing that the person does not have normal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action.” According to this bill, gender-affirming care for cisgender children is still allowed. For example, suppose a young girl begins to develop excessive facial hair. In that case, they are allowed to utilize puberty blockers and hormone therapy to stop this growth and align with their gender. While similarly, if a transgender girl tries to do the same, she would not be allowed to do so, and her doctor would face dire consequences for attempting to provide her this care.
Another part of the bill that is constitutionally problematic is its First Amendment issues. The law specifically states that “physician, or other healthcare professional” from “refer[ring] any individual under eighteen (18) years of age to any healthcare professional for gender transition procedures” [9]. While doctors not allowed to conduct gender transition procedures are their own issue, according to the specific wording utilized in this bill, medical professionals are not even allowed to mention it as a viable option to patients that may require such care, as proven by numerous associations might be medically necessary. Once again, this continues the issue of sex discrimination. Referring cisgender children to the same medical procedures is perfectly legal under this bill’s implications, but referring transgender children wouldn't be allowed for medical professionals. This law restricts the ability of doctors to perform their duty and utilize their rights to free speech.
The next issue is that it violates the due process clause of the Fourteenth Amendment by not allowing parents to make decisions regarding their children [10]. There is no legitimate government interest to get involved in such a way into this private sphere. According to Meyer v. Nebraska (1923), under the Due Process Clause, “the right of the individual…to marry, establish a home and bring up children,…and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” [11]. The only limitation on this is if a parent’s treatment of a child has some sort of adverse effect on them [12]. As already proven before by numerous medical associations and medical professionals, gender-affirming healthcare does not have an adverse health impact on children; if anything, it is a benefit and required healthcare. Unless the court can identify true harm through these medical decisions, this bill violates the due process clause and a parent's right to choose what is best for their child.
There are numerous reasons why this piece of legislation is medically dangerous for transgender youth, let alone unconstitutional. Mere weeks after the bill was passed, six transgender youth tried to commit suicide [13]. Life-saving care is being denied to those who require it. It is discriminating based on sex, violating both free speech rights and the due process clause of the Fourteenth Amendment. It is creating a precedent for such harmful unconstitutional bills. Arkansas was the first state to take transphobia this far, but it will not be the last if such bills are allowed to be implemented.
References
[1] Joe Walsh, “Judge Blocks Arkansas' Trans Healthcare Ban,” Forbes (Forbes Magazine, July 21, 2021), https://www.forbes.com/sites/joewalsh/2021/07/21/judge-blocks-arkansas-trans-healthcare-ban/?sh=25d2 ab0043b8.
[2] Adam Serwer, “The Republican Party Finds a New Group to Demonize,” The Atlantic (Atlantic Media Company, April 13, 2021), https://www.theatlantic.com/ideas/archive/2021/04/gops-war-trans-kids/618579/.
[3] Arkansas Save Adolescents From Experimentation Act, HB1570, 93rd General Assembly.
[4] “Brandt et al v Rutledge et al - Complaint,” American Civil Liberties Union, accessed October 10, 2021, https://www.aclu.org/legal-document/brandt-et-al-v-rutledge-et-al-complaint.
[5] AMA to States: Stop Interfering in Health Care of Transgender Children,” American Medical Association, accessed October 10, 2021, https://www.ama-assn.org/press-center/press-releases/ama-states-stop-interfering-health-care-transgend er-children.
[6] Sara Reardon, “New Arkansas Law—and Similar Bills—Endanger Transgender Youth, Research Shows,” Scientific American, accessed October 10, 2021, https://www.scientificamerican.com/article/new-arkansas-law-and-similar-bills-endanger-transgender-youth-research-shows/.
[7] Joe Walsh, “Judge Blocks Arkansas' Trans Healthcare Ban,” Forbes (Forbes Magazine, July 21, 2021), https://www.forbes.com/sites/joewalsh/2021/07/21/judge-blocks-arkansas-trans-healthcare-ban/?sh=25d2ab0043b8.
[8] “Equal Protection of The Laws,” Justia Law, accessed October 10, 2021, https://law.justia.com/constitution/us/amendment-14/06-equal-protection-of-the-laws.html.
[9] Arkansas Save Adolescents From Experimentation Act, HB1570, 93rd General Assembly.
[10] “Brandt et al v Rutledge et al - Complaint,” American Civil Liberties Union, accessed October 10, 2021, https://www.aclu.org/legal-document/brandt-et-al-v-rutledge-et-al-complaint.
[11] Meyer v. State of Nebraska,” Oyez, accessed October 10, 2021, https://www.oyez.org/cases/1900-1940/262us390.
[12] Parvis, “When Parents’ Constitutional Rights & Children’s Best Interests Collide | Lindsay Parvis.”
[13] “ACLU Lawsuit Challenges Arkansas Trans Youth Treatment Ban,” AP NEWS, May 25, 2021, https://apnews.com/article/arkansas-business-lawsuits-health-government-and-politics-296daadb3b59a04da2222a45f9ef8991.