Eighth Circuit Upholds Preliminary Injunction Against Arkansas Ban on Gender-Affirming Healthcare for Minors

San Francisco – September 2, 2022 – A three-judge panel of the US Court of Appeals for the Eighth Circuit upheld a preliminary injunction blocking enforcement of an Arkansas law banning gender-affirming healthcare for transgender minors. Cooley filed an amicus brief in the case, Brandt v. Rutledge, on behalf of a group of bioethicists and in support of the transgender youth and their families challenging the law. Partner Kathleen Hartnett led the Cooley team, which also included associates Barrett Anderson, Katelyn Kang, Elizabeth Reinhardt and Julie Veroff.

In 2021, Arkansas was the first state to enact a ban on gender-affirming healthcare for transgender youth.  The ban prohibits doctors from providing gender-affirming hormone treatment, puberty blockers or surgery to anyone under 18 years old, as well as from referring them to other providers for the treatment. Republican Gov. Asa Hutchinson vetoed the ban, but lawmakers overrode the veto and enacted the law.

The American Civil Liberties Union and the ACLU of Arkansas challenged the law on behalf of four transgender youth and their families, as well as two doctors who provide gender-affirming treatments. A lower court enjoined the law in 2021 – a week before it was set to take effect. 

The Eighth Circuit’s ruling allows that injunction to continue and transgender minors in Arkansas to continue receiving vital healthcare. Cooley filed an amicus brief with the Eighth Circuit on behalf of a group of professors of law, medicine and public health, arguing that the law is directly at odds with key tenets of biomedical ethics: respect for autonomy, beneficence and justice. Additionally, the brief outlines how the medical care targeted by the ban is not “experimental,” but in fact safe and effective, contrary to the state of Arkansas’ claims.

In affirming the lower court’s preliminary injunction, the Eighth Circuit held that “because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.” Consistent with Cooley’s amicus brief, the Eighth Circuit also affirmed the lower court’s conclusion that “Act 626 is not substantially related to Arkansas’s interests in protecting children from experimental medical treatment and regulating medical ethics.”

Trial in the lower court is scheduled for October.

Read the full order

Read the amicus brief of bioethicists

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