What You Need to Know Now
The Eighth Circuit Court of Appeals, in Brandt v. Griffin, has upheld Arkansas’s Act 626, which bans gender-affirming medical care for minors. This ruling follows the Supreme Court’s decision in United States v. Skrmetti, which upheld a similar Tennessee law. The Eighth Circuit’s decision is a significant indicator of how courts might approach future challenges to these bans, especially regarding parental rights and free speech.
Understanding Arkansas’s Ban and the Court’s Reasoning
Arkansas’s Act 626 broadly bans healthcare professionals licensed in the state from providing or referring minors for any medical services intended to alter physical characteristics typical of their biological sex or to create characteristics resembling a different sex. There are limited exceptions for individuals with medically confirmed disorders of sex development.
The Eighth Circuit addressed several constitutional challenges to the law:
- Equal Protection Clause: Plaintiffs argued the law discriminated based on sex and transgender status, warranting a higher level of scrutiny. However, the Eighth Circuit disagreed, citing Skrmetti and holding that the law classifies based on age and medical procedures, not sex or transgender status. As a result, the court applied rational basis review, the most deferential standard of judicial scrutiny. Under this standard, a law is upheld if it is rationally related to a legitimate government interest. The court found Arkansas’s interest in protecting minors’ health sufficient to uphold the law.
- Parental Rights and the Due Process Clause: Plaintiffs also argued that the law infringed on parents’ fundamental rights to make medical decisions for their children. The Eighth Circuit rejected this, stating that parental rights are not unlimited. The court concluded there is no fundamental right to access gender-affirming care for minors and once again applied rational basis review. Although parental rights to guide a child’s upbringing are acknowledged, the court narrowly interpreted this right, finding it does not include access to gender-affirming medical care.
- Free Speech Rights of Providers: Plaintiffs challenged the law’s prohibition on “referrals,” arguing it violated providers’ free speech rights. The court interpreted “referral” narrowly, defining it as a formal act of directing a patient to receive treatment rather than general discussion or information sharing. It held that referrals are part of the treatment process, not the speech process.
What This Means for Healthcare Providers and Health Plans
This decision marks a pivotal moment in the legal battle over gender-affirming care for minors. The Brandt ruling specifically broadens the legal debate to include parental rights and free speech, issues that are still unresolved at the Supreme Court. This indicates that challenges to gender-affirming care bans in the Eighth Circuit are unlikely to succeed. These constitutional issues are likely to continue sparking litigation and could eventually go back to the Supreme Court for a final decision.
This ruling is particularly relevant for:
- Healthcare providers (especially hospitals and health systems) that offer gender-affirming care.
- Health plans that provide coverage for gender-affirming care.
Key Actions You Should Consider
In light of this evolving legal landscape, healthcare industry players should consider the following proactive steps:
- Conduct an internal risk assessment of your organization’s gender-affirming care programs.
- Evaluate proactive measures to mitigate potential risks.
- Prepare for potential government inquiries and investigations.
- Continuously monitor updates and enforcement efforts at both state and federal levels.
