Current Events > Non-Trump legal news: 8th Circuit OA on AR gender affirming care ban for minors

(+) Yeah! (+)

Title's a bit of a clusterfuck, but short version is that the Eighth Circuit had oral arguments this week on Arkansas's ban on gender affirming care for minors. The text of the bill (Act 626, or as the ingrates decided to name it, the Save Adolescents From Experimentation Act) may be found here: https://www.arkleg.state.ar.us/Home/FTPDocument?path=%2FACTS%2F2021R%2FPublic%2FACT626.pdf

For folks who have not been paying attention, this bill went into effect back in 2021. A lawsuit was immediately filed in the US District Court for the Eastern District of Arkansas, and the judge found the bill to be unconstitutional on Equal Protection, Due Process, and First Amendment grounds. For anyone interested, here is the ACLU's website entry that contains basically the entire docket for both the trial court level and the appellate level: https://www.aclu.org/cases/brandt-et-al-v-rutledge-et-al

I just remembered that oral arguments were held at the 8th Circuit this week on Thursday, so I spent a good chunk of today catching up on briefs and listening to the oral arguments (the recording of which may be found here: https://www.ca8.uscourts.gov/court-session , select the April 2024 session and ctrl+f for "Brandt"). Overall, not impressed with the Arkansas Attorney General's arguments or the 8th Circuit's questions.

It is likely that there is a hang-up on the Equal Protection issue due to US case law's different levels of scrutiny applicable to allegations of discrimination based on a suspect classifications. A brief summary on Equal Protection and scrutiny levels: (1) only racial classifications get strict scrutiny, the highest level; (2) classifications based on sex receive intermediate scrutiny; and (3) everything else is subject to rational basis review. Where Republican attorneys and jurists like to muddy the waters is what all falls under the umbrella of classifications based on "sex." Back in the Windsor and Obergefell days, Republicans vehemently argued that gay marriage bans were not based on sex classifications by virtue of claiming that LGBT folks were able to marry members of the opposite sex just as everyone else was. Kennedy, in his infinite, flowery language, elected to not make an affirmative statement as to what level of scrutiny the gay marriage prohibitions were subject to, but it's generally understood that classifications based on sexual orientations are subject to a scrutiny higher than rational basis review, if not intermediate scrutiny.

Turning back to the gender affirming care issue, we are in exactly the same place where Republican states are asserting that gender affirming care restrictions are subject to rational basis review. This is problematic for jurisprudence purposes because short of a finding that only animus fueled the legislation rather than any legitimate government purpose, legislation is presumed to satisfy rational basis review and therefore not violate Equal Protection. As expected, the legislation at issue here hides under the guise of "Won't someone please think of the children?!?!?!", nevermind the fact that these are the same people who routinely drive LGBT people to the edge and beyond.

It is notable, however, that the 8th Circuit affirmed the trial court's preliminary injunction of Arkansas's enforcement of the bill, so all is not necessarily lost despite the 8th Circuit being second only to the hacks in the 5th Circuit (although there's a wiiiiiide gap between the two courts). It is almost guaranteed that this will be appealed to SCOTUS regardless of the outcome.

All that said, I do want to highlight something from the trial court's order. The Alliance Defending Freedom previously recruited a whole cavalcade of halfwitted "experts" during the Windsor and Obergefell days to support states' enforcement of gay marriage bans, primarily on the back of saying that children raised in same-sex couple households were somehow worse off than children raised by opposite sex couples. These "experts" were routinely BTFO by both trial and appellate courts. Well, the ADF recruited many of the same people to be "experts" regarding gender affirming care, which they obviously have zero understanding of. The trial court judge in this case (an Obama appointee) basically took them out back and gave them the Old Yeller treatment. Even called out one directly in the order in Footnote 11, so if you see anyone citing a Mark Regnerus as an expert in LGBT matters, promptly laugh at them and/or hit them with something heavy.

Just wanted to give a little update with a slight ounce of optimism on something I've been paying attention to in connection with my work.

ThePieReborn posted...

The text of the bill (Act 626, or as the ingrates decided to name it, the Save Adolescents From Experimentation Act)

Absolute fucking scum.