Appeals court allows Arkansas to enforce gender-affirming care ban

A federal appeals court ruled Tuesday that Arkansas can enforce its 2021 ban on gender-affirming care for minors, reversing a lower court decision that struck down the first-in-the-nation law as unconstitutional and following a June Supreme Court decision. 

The 8th U.S. Circuit Court of Appeals said Tuesday that a federal district court had erred in striking down Arkansas’s Save Adolescents From Experimentation (SAFE) Act in 2023. U.S. District Judge Jay Moody ruled at the time that the law, adopted by the state Legislature in 2021 after former Gov. Asa Hutchinson (R) vetoed it, discriminates against transgender people and poses “immediate and irreparable harm” to trans youth. 

In its decision, the 8th Circuit said Moody’s ruling conflicts with the Supreme Court’s decision in U.S. v. Skrmetti, which found that a similar law banning gender-affirming care for minors in Tennessee does not discriminate on the basis of sex. 

“Because the district court rested its permanent injunction on incorrect conclusions of law, it abused its discretion,” Judge Duane Benton, an appointee of former President George W. Bush, wrote in Tuesday’s order. “The judgment is reversed and the case remanded for proceedings consistent with this opinion.” 

Four families of transgender children and two doctors challenged Arkansas’s law in 2021, arguing that it violates their constitutional rights. 

Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, one of the groups representing the plaintiffs in court, called Tuesday’s decision “a tragically unjust result for transgender Arkansans, their doctors, and their families.” 

“The state had every opportunity and failed at every turn to prove that this law helps children; in fact, this is a dangerous law that harms children,” Dickson said in a statement on Tuesday. The organization is considering its next steps, she said. 

Arkansas Attorney General Tim Griffin (R) applauded Tuesday’s ruling, writing on the social platform X that he is “pleased that children in Arkansas will be protected from experimental procedures.” 

Griffin announced immediately after the Supreme Court issued its ruling in Skrmetti on June 18 that the decision had “positive implications” for Arkansas’s appeal to the 8th Circuit, “because our law is similar to Tennessee’s law.” 

Twenty-seven states have banned the use of certain prescription medications and rare surgeries to treat gender dysphoria in minors since Arkansas passed its first-in-the-nation prohibition in 2021. In July, Puerto Rico became the first U.S. territory to ban gender-affirming care for youth, restricting treatment for anyone younger than 21, the island’s age of majority. 

With Arkansas now able to enforce its ban, only Montana’s law restricting transition-related care for minors remains blocked by court orders, according to the Movement Advancement Project, a nonprofit tracking LGBTQ laws. A district court judge struck down the state’s 2023 law in May, finding the measure violates the Montana Constitution. 

Tuesday’s decision comes as the federal government also looks to broaden its approach to limiting access to gender-affirming care for minors, one of President Trump’s campaign promises. 

An executive order Trump signed in January during his first days back in office states the U.S. “will not fund, sponsor, promote, assist, or support the so-called ‘transition’ of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.” 

In May, Trump’s Department of Health and Human Services (HHS) broke with major medical groups, which have said gender-affirming care for trans youths and adults is medically necessary, in an unsigned report declaring there is a “lack of robust evidence” to support providing such care to minors. HHS Secretary Robert F. Kennedy Jr. has called for providers and medical boards to update treatment protocols to align with the department’s report, which recommends greater reliance on psychotherapy over medical interventions. 

The Department of Justice, the FBI and the Federal Trade Commission are also investigating providers of gender-affirming care, and the Centers for Medicare and Medicaid Services is expected to announce a proposal to bar funding for hospitals or clinics that offer transition care to minors.