Federal courts in Arkansas and West Virginia on Wednesday halted two laws that would have criminalized gender-affirming care for transgender kids and banned trans athletes from joining school sports that match their gender identity, respectively.
The ACLU’s dual wins on Wednesday indicate that other anti-trans bills that have passed this year — which primarily restrict sports access for trans youth — could face an uphill battle in court. Still, legal advocates warn that a rare amicus brief filed in Arkansas signals that the battles over legislation targeting trans youth are not over.
In an in-person hearing in Little Rock on Wednesday, a federal judge issued a preliminary injunction to block an Arkansas law that criminalizes gender-affirming care for transgender kids.
And a temporary halt granted Wednesday by U.S. District Judge Joseph Robert Goodwin against West Virginia’s bill targeting trans student athletes is the first successful injunction of its kind this year, an ACLU spokesperson said. West Virginia’s law had gone into effect on July 8.
U.S. District Judge James M. Moody Jr.’s bench ruling in Arkansas was made in response to a lawsuit from the ACLU, which argues that Arkansas’ law violates the 14th Amendment’s Equal Protection Clause and the First Amendment right to free speech. The lawsuit was filed on behalf of four trans kids and their families in Arkansas, plus two physicians working in the state.
Notably, the state’s law to ban hormone treatments and puberty blockers for trans minors has been denounced as extreme and potentially harmful by medical professionals, local parents of trans kids, and Arkansas Gov. Asa Hutchinson, a Republican. It was set to take effect July 28.
“I’m happy and relieved that this law has been blocked, and that trans youth in Arkansas will continue to have access to the gender affirming care we need,” said 15-year-old Dylan Brandt, a plaintiff in the ACLU’s lawsuit, in a statement following the judge’s decision on Wednesday.
“I am excited to know that I will be able to try out for the girls’ cross-country team and follow in the running shoes of my family,” Becky Pepper-Jackson, the plaintiff in the ACLU’s West Virginia lawsuit, said in a statement.
The ACLU sees the Arkansas lawsuit as a top priority in a year where a record number of bills targeted trans youth, Holly Dickson, executive director of the ACLU of Arkansas, told The 19th.
The legal battle over Arkansas’ ban — the only one of its kind to be passed in the United States — also attracted the interest of 17 state attorneys general, who filed an amicus brief last week to bolster support for Arkansas’ law. Nearly all of the states that backed the brief have introduced their own bills to ban gender-affirming care, bar trans kids from playing sports that match their gender identity, or prevent them from discussing their identities in school, according to a bill tracker by Freedom For All Americans.
Four of the states that signed the brief through their attorney general — Alabama, Mississippi, South Dakota and Tennessee — enacted legislation this year to ban trans youth from sports that match their gender identity. Idaho, which also counseled on the brief, signed its ban on trans kids’ sports participation in March 2020.
Two attorneys told The 19th that such a brief is largely unprecedented, although any weight it carried in Moody’s decision on Wednesday was unclear. It is not guaranteed that a federal judge would take a brief like this into account.
Ezra Ishmael Young, a civil rights attorney and founding board member of the National Trans Bar Association, did not recall a similar brief ever being filed about trans kids’ health care at the trial level.
“It’s very rare for an amicus brief to be filed by a bunch of states that have no stake in the actual issue at all,” Young said, adding that it takes time to coordinate a response from so many attorneys general.
“It’s not totally unusual for AGs to team up and push their state’s policy preferences in courts outside their jurisdiction,” he said. “What makes this tack odd here is that the AGs are pushing for policy preferences that have been soundly rejected by their legislature, sometimes repeatedly.”
Carl Charles, a Lambda Legal staff attorney, told the 19th that the brief — which also he sees as unprecedented, based on research undertaken by him and his paralegal — is concerning on another level.
“To write affirmatively in support of an outlier law in one state, where there are no related laws on the books in their respective states … they have nothing really to stand on in terms of, ‘We’ve passed these similar laws and we’re in support,’” he said.
“They’re essentially taking an inherently political position and one that’s outside the scope of their office, which is to say, ‘We have an interest in seeing this law stand because we too want to pass a law like this.’ Well, that’s not the AG’s job. The AG’s job is not to pass laws. The AG’s job is to enforce the laws on the books,” he said.
The office of Alabama Attorney General Steve Marshall, who spearheaded the brief in support of Arkansas’ law, declined to comment on Charles’ characterization of the brief. In a press release alongside the brief, Marshall cited concern for children with gender dysphoria as a primary motivator.
Charles said the brief indicates that the record-setting legislative battle over transgender children seen earlier this year is far from over.
“It’s not going away,” he said. “The filing of this brief underscores that this is going to be a long fight. This is going to continue, it’s going to continue into next year’s legislative session. People are not going to roll over after one loss.”