Gender

Arkansas Ban on Gender Transition Treatments for Minors Ruled Unconstitutional

Plus: New rules limit asylum applications, the bad math behind economic doomerism, and more...

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transgender boy holds up trans pride flag | Douglas Graham/Newscom
(Douglas Graham/Newscom)

A federal court has permanently struck down Arkansas' ban on gender transition procedures for minors. The law violated the rights of Arkansas children and their parents, as well as the rights of health care providers, held the court, finding that the ban went against the Constitution's Equal Protection Clause, Due Process Clause, and First Amendment.

In 2021, Arkansas banned the prescribing of puberty blockers or hormone treatments to address gender dysphoria in minors, as well as surgical interventions for transgender kids. The law also banned health care providers from referring minors to doctors who would provide gender transition treatments. The state's Republican governor, Asa Hutchinson, vetoed the measure, saying it would create "new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters concerning our young people." But the legislature had enough votes to override that veto.

Since then, a number of states have followed in Arkansas' footsteps. But lately, these bans have recently been suffering some blows in federal courts. Earlier this month, "a federal judge in Florida issued a preliminary injunction that will permit three transgender children to receive puberty blockers, even as the state has banned gender-affirming care for minors," as CNBC reported. Similarly, a federal judge last week stopped Indiana's "ban on puberty blockers and hormones for transgender minors from taking effect" on July 1, notes NPR.

Both the Indiana and Florida rulings were preliminary—the cases are still playing out in their respective courts, with final decisions from the district judges still uncertain.

But the Arkansas ruling, issued yesterday, represents a final decision and is the first final merits ruling on a state law banning gender transition treatments for minors.

The decision comes in a lawsuit (Brandt et al v. Rutledge et al) filed by several Arkansas families with transgender children, who were represented by the American Civil Liberties Union.

"Transgender kids across the country are having their own futures threatened by laws like this one, and it's up to all of us to speak out, fight back, and give them hope," said Dylan Brandt, a 17-year-old transgender boy and one of the suit's plaintiffs, in a statement.

"The undisputed evidence at trial established that, if the Act were to go into effect, (i) three of the Minor Plaintiffs—Parker Saxton, Dylan Brandt, and Sabrina Jennen—would have to discontinue treatment that they, their parents, and their doctors all agree is medically indicated for them and benefitting their health and well-being, and Minor Plaintiff Brooke Dennis would be unable to obtain treatment she will imminently need," wrote James M. Moody Jr. of the U.S. District Court for the Eastern District of Arkansas in yesterday's decision. In addition, "the Physician Plaintiff, Dr. Kathryn Stambough, would be unable to treat her patients who need care, leaving them to suffer, and unable to refer them to other doctors to provide care when necessary." Thus, the plaintiffs had standing to bring the case.

As to the Equal Protection Clause claim, the judge noted that "Act 626 discriminates
on the basis of sex because a minor's sex at birth determines whether the minor can
receive certain types of medical care under the law." For instance, a minor being treated for conditions other than gender dysphoria could still be prescribed hormones. The law is therefore a sex-based classification that "discriminates against transgender people," the judge wrote.

"The evidence at trial showed that the prohibited medical care improves the health
and well-being of many adolescents with gender dysphoria," continued the decision, which spent pages detailing expert testimony on both the benefits and risks of various treatments for childhood gender dysphoria.

For instance, "it is undisputed that when estrogen is used to treat birth-assigned males, it can sometimes impair their fertility" and "estrogen treatment follows puberty blockers at certain stages of the adolescent's development, the adolescent can become infertile." And "when estrogen or anti-androgens are given to birth-assigned males, the hormones can limit the patient's sexual arousal or ability to orgasm," the judge points out. But "these risks are discussed with patients and parents. The risks can be managed by the doctor to preserve fertility or treatment can be provided to address a decrease in sexual satisfaction in most cases."

In other words, the ruling doesn't shy away from acknowledging the drawbacks involved in certain gender transition treatments. But it situates these firmly in the realm of considerations to be left to patients and doctors, not the state.

"Even if the Court found that Act 626 passed constitutional muster under the Equal
Protection Clause, it fails under due process analysis," states the decision. "As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child's consent and their doctor's recommendation, make a judgment that medical care is necessary."

You can read the whole decision here. Attorney Gabriel Malor has a thread summarizing some of the decision's key points here:

FREE MINDS

New rules limit asylum applications. A new Biden administration policy says that for the most part, people who travel through a third country on their way to the U.S. but don't seek asylum from there before entering the U.S. without authorization are ineligible to seek asylum here. The change "has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum," according to the Los Angeles Times:

Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.

But immigrant advocates and legal groups have blasted Biden's new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden's policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration's asylum policy is affecting migrants who have ignored the government's warnings not to cross the border.

"This newly released data confirms that the new asylum restrictions are as harsh as advocates warned," said Aaron Reichlin-Melnick, policy director at the American Immigration Council. "The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility."

According to new court documents filed by the Biden administration, just 46 percent of single adult migrants were able to pass an initial border screening between May 12 and June 13—down from 83 percent between 2014 and 2019.

FREE MARKETS

The bad math behind economic doomerism. "Whereas 40 weeks of the typical male worker's income in 1985 could provide the middle-class essentials for a family of four, by 2022 he needed 62 weeks of income—a problem, there being only 52 weeks in a year," asserts American Compass founder Oren Cass in a new book. Cass' claim is based on data from his 2023 Cost-of-Thriving Index, which divides the combined cost of five goods and services (groceries, health insurance, higher education, housing, and transportation) by the median weekly earnings of men working full time.

But Cass' math is all wrong, write Scott Winship and Jeremy Horpedahl at The Dispatch, citing their own report for the American Enterprise Institute. Their report takes aim first at the way Cass calculated the "cost of thriving":

We first improve on Cass' cost estimates by correcting conceptual and measurement errors and using better source data. For instance, while Cass uses the average sticker price of attending an in-state four-year public university as his education estimate, we account for the fact that institutional and federal grants reduce the average considerably. Cass' health insurance estimate treats the part of the premium paid by employers as if it were paid by workers. (One might argue that it actually does come out of worker pay, but then one has to include it in earnings, too.) Improving his estimates in these and other ways knocks down the increase in COTI from 22 weeks to 10 (and puts the 2022 COTI below 52 weeks).

Cass also overlooks "changes in the quality of goods and services over time," suggest Winship and Horpedahl:

Take housing costs. He compares rents for three-bedroom apartments in Raleigh, North Carolina, in 1985 and 2022, but he ignores the possibility that the typical three-bedroom rental in 2022 is much nicer or larger than what was typical in 1985. An increase in what families typically spend that reflects their ability to afford nicer things is not an increase in costs. When we adjust for quality change using price indexes to translate the improved 2022 costs into 1985 dollars and then re-estimate the change in COTI, we find it increases by just four weeks.

You can find Winship and Horpedahl's full report here.

Winship is becoming one of my favorite writers and researchers on American economic issues and culture for the way he's willing to question doomer narratives and do the math to back up this skepticism. Check out his recent conversation with me and Nick Gillespie about fertility rates and pro-natalist policies, and his 2021 conversation with Gillespie on three myths about American decline.

QUICK HITS

• A new CNN poll finds "former President Donald Trump's support appears to have softened following his indictment and arrest on federal charges," but "there's little sign that Republican-aligned voters who aren't backing Trump are consolidating behind any one of his rivals. Nor are they unified around wanting Trump out of the race entirely."

• Two reporters in Asheville, North Carolina, were convicted of trespassing for covering police clearing out a homeless encampment in a local public park.

• "A Tucson mother falsely accused of child neglect for letting her 7-year-old son play by himself in their neighborhood park was vindicated when a trial judge allowed the Arizona Department of Child Services to drop its lawsuit against her," reports the Goldwater Institute.