amna: A raft of anti-lgbtq
legislation in mostly
republican-led states now faces
mounting legal challenges.
Laura Barron Lopez takes a look
at those cases and their broader
implications.
Laura: 20 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?
Prof. Weatherby: Absolutely.
Thank you for having me.
It 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
facts.
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: 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?
Prof. 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: 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 on
surgeries to take effect.
What has been the legal strategy
behind these challenges?
Prof. 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
rights 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 that came out
yesterday, which was based on
equal protection and the one out
of Arkansas that came out from
judge moody.
Laura: 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?
Prof. 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 implicates.
Laura: And finally, I just
wanted to ask you, do you think
that these legal challenges and
the ultimate rulings that we've
seen so far are going to be
impacting the politics of this
issue?
You've seen some of this play
out in Arkansas yourself.
Prof. Weatherby: Well, these are
deeply charged issues and people
feel very strongly about them
one way or the other.
I would note that governor
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 on
both sides of the aisle
recognize that these issues
affecting personal health care
decisions are are personal and
involve some government
overreach when it comes to these
transgender health care bans.
Laura: Professor Weatherby of
the university of Arkansas,
thank you so much for your time.
Prof. Weatherby: Thank you.
♪♪