Dem
51
GOP
49
Yesterday, we had an item about how anti-LGBTQ activism does not appear to make much business sense. Today, it's an item about how the anti-LGBTQ stuff doesn't seem to fly from a legal perspective, either.
In 2021, Arkansas became a trailblazer of sorts as the first state to pass a law banning gender-affirming treatment for transgender youth. Then-governor Asa Hutchinson (R) vetoed the bill, but the legislature overrode him. Not long thereafter, Arkansas became the first state to be sued over its ban on gender-affirming treatment for transgender youth. And yesterday, Arkansas became the first state to see its ban on gender-affirming treatment for transgender youth struck down.
In his 80-page order, U.S. District Judge Jay Moody made clear he was unimpressed by the defendants' arguments. He observed that while there are certainly some risks involved with gender-affirming treatment, the evidence "showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing." The name of the Arkansas bill, which is now in abeyance, was the "Save Adolescents from Experimentation Act." We would suggest that if you want to communicate to a judge that you're operating in bad faith, and that you are just posturing for the benefit of your base, that's the kind of name you want for your bill. Even if a person believes that gender-affirming care is wrong or harmful, there's just no argument that it's a form of "experimentation," as if trans kids are laboratory animals or something.
Arkansas is going to appeal the decision, of course. That means the U.S. Court of Appeals for the Eighth Circuit, a pretty conservative circuit, with a grand total of one Democratic appointee. That said, the Eighth Circuit does not have a reputation for making things up out of thin air, the way the Fifth Circuit does. There are also similar cases pending in Alabama (appeals to the Eleventh Circuit) and Tennessee (appeals to the Sixth Circuit). So, this is far from over, and it figures to end up at the Supreme Court one of these days.
Meanwhile, the politicians and activists who would use anti-LGBTQ stuff as a wedge issue would seem to be running out of avenues to pursue. LGBTQ marriage is now the law of the land, of course. Anti-drag-show laws are clearly a violation of the First Amendment, and are already failing to survive court challenges. Tentatively, anti-gender-affirming-surgery laws aren't going to stand up in court, either. Anti-trans-female-athlete laws haven't had their day in court, but even if they stand up, "we're keeping three trans women, statewide, off their high school swimming teams!" is not exactly the foundation for a political movement. It could be that even if the anti-LGBTQ resentment is still there, there just won't be any viable policy options available for channeling it. (Z)