The Volokh Conspiracy
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Arkansas Ban on Youth Gender Transition Procedures Upheld, Including Restriction on Referrals for Such Procedures
But the restriction appears to cover only referrals for illegal in-state procedures, and not referrals for legal out-of-state procedures.
Today's en banc Eighth Circuit opinion in Brandt v. Griffin, written by Judge Duane Benton, held—largely relying on the Supreme Court's decision this Summer in U.S. v. Skrmetti—that the Act doesn't involve a presumptively unconstitutional sex classification or a transgender status classification. It also held that the Act doesn't violate parents' "right to provide appropriate medical care for their children," for much the same reasons given by panels in the Tenth Circuit and Sixth Circuit. And the court said this as to the prohibition on referrals:
[T]he Supreme Court recognizes that the First Amendment "does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." National Inst. of Family & Life Advocates v. Becerra (2018). "States may regulate professional conduct, even though that conduct incidentally involves speech." In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld a provision compelling physicians to provide information to patients about the risks of abortion. The plurality opinion recognized that the requirement "implicated" a physician's First Amendment rights, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Planned Parenthood of Southeastern Pa. v. Casey (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.), overruled on other grounds by Dobbs.
The question here is whether the Act regulates speech, conduct, or both. "While drawing the line between speech and conduct can be difficult," the precedents of the Supreme Court have long drawn that line. The district court interpreted "refer" in the Act to include "informing their patients where gender transition treatment may be available." … [But] this court should read "refer" according to its medical definition: "to send or direct for diagnosis or treatment." The whole of the Act supports this reading. The Act makes "unprofessional conduct" any "referral for or provision of" gender transition procedures for minors. This language supports that "refer" in Section 1502(b) means a formal "referral for" treatment, not merely informing patients about the availability of procedures.
Whether the Act "proscribes speech, conduct, or both depends on the particular activity in which an actor seeks to engage." A referral for treatment is not part of the "speech process." Rather, a referral is part of the treatment process for gender transition procedures.
The Act does not focus on whether a healthcare professional is "speaking about a particular topic." Instead, the Act prohibits a "healthcare professional" from providing gender transition procedures to minors. It also prohibits a "healthcare professional" from referring minors to "any health care professional for gender transition procedures." The Act defines "healthcare professional" as "a person who is licensed, certified, or otherwise authorized by the laws of this state to administer health care in the ordinary course of the practice of his or her profession." Thus, the Act prohibits a healthcare professional from referring minors to healthcare professionals for procedures that the Act prohibits them from providing. See United States v. Hansen (2023) ("Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected."). To the extent the Act regulates speech, it does so only as an incidental effect of prohibiting the provision of gender transition procedures to minors. See Giboney v. Empire Storage & Ice Co. (1949) (emphasizing that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed").
The healthcare professional invokes National Institute of Family and Life Advocates v. Becerra. There, the Supreme Court held that requiring healthcare professionals to provide information about contraception and abortion services provided by the state was a content-based regulation of speech. But there, unlike in Casey, the compelled speech was not part of a medical procedure.
By contrast, a referral for treatment is "part of the practice of medicine." Becerra is not helpful to the healthcare professionals, because the Act does not regulate "speech as speech." This is not a case where "the only conduct which the State sought to punish was the fact of communication." Rather, the Act seeks to prohibit the conduct of providing gender transition procedures to minors. True, a referral includes "elements of speech," such as writing, typing, or verbal communication. But any restriction on speech is "plainly incidental" to the Act's regulation of conduct….
Judge Jane Kelly, joined by Judge James Loken, concurred as to the First Amendment, though noted that she read the Court's First Amendment ruling "as narrow":
The Court concludes only that a ban on formal medical referrals does not directly implicate the First Amendment. Under the Court's interpretation of Act 626, healthcare professionals remain free to discuss the possible treatments for gender dysphoria with their patients, as well as where such treatments are offered. Additionally, as the Court suggests, Slip Op. 23, the Act does not appear to prohibit doctors from referring patients to out-of-state providers for gender affirming care. See Ark. Code. Ann. § 20-9-1502(b) (prohibiting "[a] physician or other healthcare professional" from referring minors "to any healthcare professional for gender transition procedures"); id. § 20-9-1501(8) (defining a "[h]ealthcare professional" as "a person who is licensed, certified, or otherwise authorized by the laws of this state").
She argued, though, that the court should "remand for the district court to assess whether the Act survives rational basis review" under the Equal Protection Clause, reasoning that the district court's factual findings suggest that the law is irrational. For the full (long) opinions, see here.
