Transgender law faces court challenge, as could others

Editor’s note: This is the second of a two-part series on legislation passed during the 2021 Arkansas Legislative Session. The first addressed Act 309, and this second story focuses on Act 626 and other laws that could face legal challenges.

A law preventing transgender young people from being provided gender transition medical procedures is drawing a lawsuit from the American Civil Liberties Union (ACLU), while other new state laws could be subject to a legal challenge by that organization or others.

Act 626 bans the provision of gender transition procedures for minors, though it does allow them for those “born with a medically verifiable disorder of sex development.” The Legislature passed the law over Gov. Asa Hutchinson’s veto.

Holly Dickson, the ACLU’s executive director, said her office has been “hearing from terrified families for months.” It is still deciding who will be involved in the case, but it will file the lawsuit soon.

“This is a very extreme intrusion into people’s private lives and medical care,” she said. “If we didn’t think that we could prevail, we probably wouldn’t be filing suit. We think that it’s a blatant violation of their rights, and so that’s why we’re filing.”

Legislative sponsors of the law have argued it will protect young people from life-altering decisions that instead can be made after they are 18. Rep. Robin Lundstrum, R-Elm Springs, said on April 5, “What it does do is protect children from sex change procedures and only those procedures that are chemical and surgical. Nothing else. It still allows for health care, and it still allows for counseling, which is incredibly important.”

That was the day that Gov. Asa Hutchinson vetoed the bill, calling it “government overreach.” The Legislature promptly overrode it.

ABORTION, TRANSGENDER LAWSUITS
The ACLU also will file a lawsuit opposing Act 309, which bans almost all abortions except those necessary to save the life of the mother. Dickson said the ACLU is not ready to announce what other lawsuits could be filed, but it is reviewing recently passed laws. She said there are “multiple” ones that are legally dubious.

John DiPippa, a professor at the University of Arkansas at Little Rock Bowen School of Law, said laws affecting transgender individuals could draw legal challenges because the Constitution’s equal protection clause requires similarly situated individuals to be treated equally.

DiPippa said plaintiffs suing over Act 626 could make a due process claim by arguing that competent young people have a right to make decisions about their body and bodily integrity. The state can argue it has a legitimate purpose in ensuring young people don’t make life-changing decisions until they are adults, and that there are many decisions minors aren’t allowed to make for themselves.

Cases could arise over other laws related to transgender individuals. Plaintiffs could say that Acts 461 and 953, which are meant to limit participation in girls’ school sports to only non-transgender girls, are based on “irrational prejudice” or a desire to harm a politically unpopular group. The state, meanwhile, can argue the law is based on biological factors and is an effort to ensure fair participation.

Those laws will face not only an “ends analysis” but also a “means analysis” over whether they are the best way to achieve their goal. Plaintiffs could argue that if the law’s real purpose were to ensure fairness, then an objective medical test for an athlete’s hormones should be performed.

Other laws could face legal issues. Shortly before recessing, lawmakers passed Act 1012, which declared federal gun bans adopted after Jan. 1, 2021 to be null and void, and prohibited law enforcement officers and others from assisting with the enforcement of federal gun laws that violate the state Constitution or its laws. DiPippa said that law is clearly unconstitutional because states cannot nullify federal laws – a principle reaching back to 1819 and affirmed by the Civil War and the Little Rock Central High crisis.

“The theory on which it’s based is just not true,” DiPippa said.

Interpretations of Act 462, a law allowing medical providers to decline to provide some procedures that violate their conscience, will depend on how the law is applied in an individual case, DiPippa said. That law could face claims related to equal protection, gender discrimination, and due process. If a provider never offers transgender services for any individual, it won’t have any problems, but a clinic that declines to provide fertility treatments for lesbian couples but provides them for heterosexual couples would still face legal issues despite the law’s passage.

ELECTION LAWS, LAWSUIT COSTS
Among the laws unlikely to be overturned are those dealing with elections. DiPippa said the Constitution doesn’t guarantee a right to vote. Instead, it assumes that people will vote, and then the courts have said that when they do, it has to be done on an equal basis. Restrictions can occur as long as they are applied equally. The Voting Rights Act of 1965 says states cannot enact rules that have a disproportionate effect on racial minorities, which is hard to prove from an evidentiary standpoint.

That means that a law like Act 736, which among other provisions requires voters’ signatures on absentee ballots to be similar to their signatures when they registered, probably is constitutional because everyone’s handwriting can be equally illegible.

The ACLU’s Dickson said her organization often is awarded court costs after a successful case. After the court struck down the state’s 12-week abortion ban passed in 2013, the ACLU was awarded $100,000.

It would be nearly impossible to determine how much state government spends defending its laws in court. Amanda Priest, a spokesperson for Attorney General Leslie Rutledge, said her office doesn’t track the amount of time attorneys spend on a case. Dickson noted plaintiffs sue whatever state agency is charged with enforcing a law, which means many offices would have to be monitored.

Sen. Jason Rapert, R-Conway, the Senate sponsor of Act 309 and the 12-week abortion ban, said lawmakers shouldn’t let the threat of a lawsuit prevent them from passing laws.

“There never should be a hesitation to stand up for policy that’s right. That’s part of our system is that we stand up on issues,” he said.

DiPippa described this year’s General Assembly as “the most activist Legislature I can remember.” It was a contentious session to be sure, but he said such disagreements are a hallmark of American politics.

“This has always gone on,” he said. “I think sometimes from our vantage point, it just feels like it’s terrible, but this argument about the states and the federal government and the balance, that’s been literally going on since 1819… It’s the same argument over and over and over again. And that’s the heart of our constitutional system that we always keep debating these things and they never become settled. That’s its strength, not its weakness.”