LITTLE ROCK, Ark. – Nearly two years after Arkansas became the first state to enact a now-blocked ban on gender-affirming care for minors, Republican lawmakers are trying to effectively reinstate the veto with a proposal Monday to make it easier to file malpractice lawsuits against doctors who provide such care.
The bill, SB199, would allow minors who received gender transition treatments to sue their doctors for damages up to 30 years after the procedure and would also revoke the medical licenses of doctors who refer minors to other providers for such care. The bill was introduced by Senator Gary Stubblefield on February 6, 2023, and is currently referred to the Judiciary Committee of the Senate.
Gender-affirming care is any treatment that helps a transgender, nonbinary, or gender non-confirming person in their transition process, such as hormone therapy, puberty blockers, or surgery. According to the American Academy of Pediatrics, gender-affirming care is “based on the best available scientific evidence and expert clinical consensus”. It is “essential to the health and well-being of transgender and gender-diverse youth”.
Supporters of the bill argue that protecting minors from medical malpractice and irreversible harm is necessary. In contrast, opponents of the bill say that it is discriminatory, unconstitutional, and harmful to the mental and physical health of transgender youth.
The bill is similar to the Save Adolescents From Experimentation (SAFE) Act, passed by the Arkansas legislature in April 2021, overriding the veto of Governor Asa Hutchinson. The SAFE Act prohibited gender transition procedures for minors, including the use of puberty blockers, cross-sex hormones, and surgeries, and also banned the use of public funds for and prohibited insurance from covering gender transition procedures.
However, the SAFE Act was blocked by a federal judge in July 2021, who ruled that it violated the constitutional rights of transgender youth and their families and issued a preliminary injunction to prevent the law from taking effect. The state of Arkansas appealed the ruling, and the case is currently pending before the U.S. Court of Appeals for the Eighth Circuit.
The new bill, SB199, is seen by some as an attempt to circumvent the federal court’s decision and to impose a de facto ban on gender-affirming care for minors by creating a legal and financial risk for doctors who provide such care.
The bill has faced criticism from LGBTQ advocates, medical professionals, and parents of transgender youth, who say that it is based on misinformation and stigma and would endanger the lives of vulnerable children who need access to affirming and supportive health care.
The bill has also been opposed by some conservative groups, such as the Arkansas Family Council, which said that it is “too weak” and would “create a loophole” for doctors to continue providing gender transition treatments to minors.
The bill is expected to face legal challenges if it becomes law, as it would likely conflict with the federal court’s injunction and the constitutional rights of transgender youth and their families.