ARKANSAS – Last month, with state bills targeting transgender youth sweeping the United States, Arkansas became the first state in the country to ban gender-affirming medical care for transgender youth.
Days later, Harvard Law School Professor Noah Feldman published an opinion piece arguing that the Arkansas bill, HB 1570, is “morally repugnant” but “likely legal.” In his piece, Professor Feldman equated the ban on medical care for transgender youth with state attempts to prohibit under-18 conversion therapy and argued that, because the lower courts have generally permitted the latter, the former is constitutional.
This statement is wrong, and indeed it is surprising to see it made by a leading constitutional law scholar. Context matters deeply in constitutional law, and the context could not be more different in the cases of conversion therapy bans and bans on medical care for transgender youth such as HB 1570.
There was no plausible argument that bans on under-18 conversion therapy target a particular group for invidious discrimination. In fact, the challenges to conversion therapy bans that Professor Feldman cites did not even raise Equal Protection claims. In addition, conversion therapy has been widely considered to be harmful and even unethical by mainstream professional groups.
In contrast, the legislative record provides ample evidence that the Arkansas legislature, in enacting HB 1570, has denied transgender youth access to medically necessary care because they are transgender. Importantly, HB 1570 does not stand alone but rather is one of seven different bills the Arkansas legislature has introduced this year targeting the transgender community.
Even as thousands of Arkansans continue to die from COVID-19, the Arkansas legislature has introduced an average of two bills a month seeking to deprive transgender individuals of rights. Several of these bills, including HB 1570, originated from a nationwide effort by anti-LGBTQ groups such as The Heritage Foundation and the Family Research Council to encourage state legislators to introduce and enact anti-LGBTQ laws.
Although HB 1570’s sponsors have professed to be motivated by a concern for transgender kids, they have ignored repeated testimony from witnesses that HB 1570 would increase suicide rates among such youth—and that the bill did in fact lead to increased suicide attempts in the days after its initial passage in the House.
In the course of debates on HB 1570, transgender people have been referred to as an “abomination” and the desire of transgender youth to identify in accordance with their gender identity has been compared to the desire to identify as a cow. Gender-affirming treatments for transgender people—which are recognized as the standard of care by numerous major medical organizations—have been referred to as “snake oil” and “chemical mutilation” even as identical medical treatments for non-transgender minors continue to be allowed. Proponents have frequently quoted the Bible in defense of the bill, and have referred to it as “common sense” while ignoring evidence against it.
As Arkansas Governor Asa Hutchinson—a Republican—recognized in vetoing HB 1570, “leading Arkansas medical associations, the American Academy of Pediatrics and medical experts across the country all oppose this law.” Several of these medical professionals and organizations spoke against the bill in committee hearings, as did many transgender Arkansans and their families.
No transgender Arkansans or their family members testified in support of the bill, and the medical opposition to HB 1570 was so widespread that the bill’s sponsor was forced to present testimony from a pediatric anesthesiologist with no experience with gender dysphoria.
In addition to allowing unqualified witnesses to testify without time limitation in support of the bill, the relevant committees limited all witness testimony from critics to two minutes. As a result, the Arkansas Academy of Pediatrics, other professional healthcare providers, and transgender Arkansans and their family members were all cut off mid-sentence while attempting to give testimony against the bill.
At the final Senate floor debates on the bill, Arkansas State Senator Greg Leding (D-District 4) observed that the Senate had heard testimony that the passage of HB 1570 in the House had already led to multiple suicide attempts by transgender youth—an outcome that many witnesses warned of during committee hearings. He asked his colleagues to at least hear fully from doctors, children, and their parents before passing the bill, with the lives of children at stake. Still, the law was passed a mere half hour later and subsequently passed again over a gubernatorial veto.
All of this context is critical to understanding the purpose of HB 1570, and to the proper resolution of any constitutional challenge to the law. Under Equal Protection doctrine, any law must at least seek to serve legitimate government interests and be rationally related to those ends.
HB 1570 has all of the hallmarks of the type of legislation that courts have found invalid even on the lowest level of Equal Protection review. It targets a vulnerable and stigmatized group, the legislative debates demonstrated bias and misunderstanding; it was enacted despite overwhelming evidence demonstrating its factual premises were inaccurate; the purposes it is alleged to further are illogical given its actual reach; and the bill included irregularities and procedural bias in its enactment.
Any one of these features could be a basis for concluding that the legislature lacked a legitimate interest and instead acted out of bias—or that any purportedly legitimate interests lack a rational relationship to what HB 1570 actually does. Either of these conclusions should result in HB 1570 being struck down under even the minimum level of Equal Protection review.
But importantly, there are good reasons to doubt that a federal court would apply this lowest level of review to HB 1570 at all. As an increasing number of federal courts have recognized, discrimination against the transgender community should trigger heightened scrutiny. As these courts have recognized, transgender people as a group have been subjected to a history of irrational discrimination and mistreatment of the kind that ordinarily triggers heightened scrutiny. And, anti-transgender discrimination is sex discrimination, as to which it is well established that intermediate scrutiny applies.
Under either of these rationales, Arkansas would be required to show at least that the bill furthers an important and factually substantiated state interest, and that the legislation is substantially related to that interest. Based on the legislative record of HB 1570, it seems exceedingly unlikely that the state would be able to do so.
In short, under any standard of review, HB 1570 seems likely to be struck down.
In speculating that HB 1570 is constitutional, Professor Feldman does not address the substantial arguments for its invalidity on rational basis review nor the possibility of a court finding that transgender people are a suspect or quasi-suspect class. On these grounds alone, he misses much of what is important in the analysis a court would undertake.
But it is worth noting that Professor Feldman does argue that a court would be unlikely to find that HB 1570 is sex discrimination under the reasoning of last year’s U.S. Supreme Court decision in Bostock v. Clayton County. As such, he argues that a court would be unlikely to find for the plaintiffs under the Affordable Care Act’s provision banning sex discrimination. Although he does not explicitly detail the implications of this conclusion (that a court would not find HB 1570 to be sex discrimination) for his constitutional analysis, it is implied that a court would not allow heightened scrutiny there either.
Whether a court finds that HB 1570 is sex discrimination is hardly dispositive of potential challenges to HB 1570, as the law could be invalidated on numerous other grounds. But importantly, the conclusion that a court is unlikely to so hold is also likely wrong. HB 1570 does not incidentally bar medical care that transgender children use. Rather, it specifically bars transgender children from seeking care that the state would allow for a child assigned a different sex at birth.
Medical care, such as hormone therapy and puberty blockers, remains lawful for use in minors in other circumstances. But it is now unlawful when used in accordance with recommended medical care for the treatment of gender dysphoria—precisely because of the child’s sex assigned at birth. Indeed, the very definition of the medical care prohibited in HB 1570 is specifically defined in terms of the patient’s sex, prohibiting, for example, the prescribing of higher levels of estrogen to an under-18 individual assigned the male sex at birth—but not to someone assigned the female sex.
Even the law’s exemptions—which specifically allow the use of these very same medical treatments at any age on intersex minors without their consent—make clear that the child’s assigned sex is dispositive criteria in whether the care will be deemed legal. Children deemed intersex may be subject to surgery, hormones, and other medical treatments unwillingly to conform their bodies to a gendered appearance desired by their parents or by medical professionals. But those whose sex is classified as exclusively male or female are categorically prohibited from such treatments even where desired.
As was repeatedly testified to during the hearings on HB 1570, transgender children are an especially vulnerable minority, for whom access to gender-affirming care can be life-saving. As the Governor of Utah, Spencer Cox, has said, “these kids… they’re just trying to stay alive.” By categorically banning such care for transgender youth, the state of Arkansas sent a message to such youth that it values the opportunity to oppose transgender identity more than it values their lives.
A federal court will be the ultimate arbiter of whether HB 1570 is unconstitutional. When it does, there are strong arguments that HB 1570 should be struck down.