Anti-trans laws face legal roadblocks in several states

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• Amna Nawaz:

  A raft of anti-LGBTQ legislation in mostly Republican-led states now faces mounting legal challenges.

  Laura Barron-Lopez is back with a look at those cases and their broader implications.

• Laura Barron-Lopez:

  Twenty states have put into place bans or severe restrictions on transition-related medical care for minors, but measures in at least five of those states have now been permanently or temporarily blocked from taking effect.

  To discuss the legal challenges around these laws and where they go next, we're joined by Danielle Weatherby, a law professor at the University of Arkansas who focuses on LGBTQ legal issues.

  Professor Weatherby thank you so much for joining.

  Arkansas was the first state to ban gender-affirming medical care for minors. But, this week, a federal judge ruled that ban unconstitutional, making it the first ever ruling to overturn such a prohibition.

  Can you explain the judge's determination in this case?

  Danielle Weatherby, Professor of Law, University of Arkansas: Absolutely. Thank you for having me.

  His determination was that Act 626 was unconstitutional for three reasons. First, he said that the act violated the Equal Protection Clause, to the extent that it discriminated on the basis of sex. Second, he said that it usurped the parental right to make well-informed medical determinations on behalf of their minor children.

  And this is a right that is implicated by the substantive due process clause. And then, finally, he said that this act violated physicians, treating physicians' First Amendment rights, insofar as it prohibited them from consulting with their patients about the gender-affirming care.

• Laura Barron-Lopez:

  The Arkansas attorney general has already said that he is going to appeal the ruling and rejected the scientific consensus that transgender youth benefit from such care.

  What do you make of that appeal? And is it a matter of inevitability that this is ultimately going to reach the Supreme Court?

• Danielle Weatherby:

  Well, that will take some time.

  Certainly, the Arkansas attorney general has said that he intends to appeal to the Eighth Circuit Court of Appeals. And I believe that that is just inevitable.

  In terms of the medical science, however, the vast majority of experts, including the American Medical Association, the American Pediatrics Association, and all of the experts that have weighed in on this subject, unanimously agree that this type of gender-affirming care is in a minor's best interest when the minor has been diagnosed with gender dysphoria.

  And I think that's important to note that Judge Moody's decision was based on a weighing of the credibility of all that medical science.

• Laura Barron-Lopez:

  In Florida, a judge struck down the state's prohibition on Medicaid coverage for gender-affirming care. And in Indiana recently, another judge temporarily blocked most of their ban for minors, only allowing the prohibition surgeries to take effect.

  What has been the legal strategy behind these challenges?

• Danielle Weatherby:

  Well, it's the strategy that you're seeing from the ACLU of Arkansas, the allegations that these bans on medical determinations which implicate personal autonomy and human dignity violate the First Amendment of treating physicians and the due process rights of parents and the equal protection right of these minor patients.

  This kind of three-pronged approach seems to be effective. And that's exactly what we're seeing in the decision out of the Florida court, which was based on equal protection and the one out of Arkansas that came out from Judge Moody.

• Laura Barron-Lopez:

  When you look at all of the rulings across these five states, some have been by Trump-appointed judges to block these — portions of these bans from taking effect. Do you see a pattern in their decisions?

• Danielle Weatherby:

  Not necessarily.

  I think the judiciary is nonpartisan. And even though, yes, some of the decisions have come from Trump appointees and some have come from appointees by Democratic presidents, the judiciary's role is to apply the law and to apply precedent under the principles of stare decisis.

  Some of these rights are well-established, including the right of parents to direct and control the upbringing of their children. And that's what these challenges to these bans implicate.

• Laura Barron-Lopez:

  And, finally, I just wanted to ask you, do you think that these legal challenges and the ultimate rulings that we have seen so far are going to be impacting the politics of this issue?

  You have seen some of this play out in Arkansas yourself.

• Danielle Weatherby:

  Well, these are deeply charged issues, and people feel very strongly about them one way or the other.

  I would note that Governor Asa Hutchinson, who has put his name in the hat for presidential candidate, actually initially vetoed this bill when it came out of the Arkansas legislature, and it was only passed after the legislature overrode his veto.

  So I think that candidates on both sides of the aisle recognize that these issues affecting personal health care decisions are personal and involve some government overreach when it comes to these transgender health care bans.

• Laura Barron-Lopez:

  Professor Weatherby of the University of Arkansas, thank you so much for your time.

• Danielle Weatherby:

  Thank you.

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