Last week, the state of Arkansas became the first state in the nation to effectively ban gender-affirming care for transgender and gender diverse youth. The law, H.B. 1570, prohibits youth under the age of 18 from receiving transitional or puberty-blocking hormones and surgery, and allows private insurers to refuse gender-affirming care. The law has no provision for youth who are currently receiving gender-affirming care. It also exposes medical providers to potential lawsuits and loss of licensure for any referral for or provision of gender-affirming care to youth under the age of 18.
On April 5, Republican Governor Asa Hutchinson vetoed H.B. 1570, denouncing its sweeping scope. Governor Hutchinson described H.B. 1570 as a “vast government overreach” and stated that he vetoed the bill “because it creates new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters concerning our youths.” Nonetheless, on April 6 the Republican-controlled House voted 72-25 and the Republican-controlled Senate voted 25-8 to override Governor Hutchinson’s veto of the bill.
H.B. 1570, now set to take effect this summer, is a stark warning sign of what the future may hold for transgender communities in the United States. 2021 has already become a record-breaking year for anti-transgender legislation with dozens of anti-transgender bills being introduced across states in the past few months alone. Many of these bills specifically target transgender youth by restricting their educational opportunities and their access to gender-affirming medical care.
Transgender and gender diverse youth are one of our most vulnerable populations. Research from the Williams Institute at UCLA School of Law estimates that about 0.7 percent of youth ages 13 to 17 identify as transgender. Other researchers have estimated that between 1.3 to 3.2 percent of the U.S. youth population identifies as transgender.
Studies consistently show that transgender youth are at increased risk for various negative mental health outcomes, including anxiety, depression, and suicidal thoughts and behaviors. The 2019 National School Climate Survey revealed that over 80% of transgender students reported feeling unsafe at school and experienced victimization based on their gender identity. More than 80% of transgender students avoided bathrooms, and almost 70% avoided locker rooms, because they felt unsafe or uncomfortable.
In addition to putting vulnerable youth at greater risk of harm, H.B. 1570 ignores medical expertise and is based on distorted logic. The extreme law is allegedly grounded in Arkansas’ “compelling government interest in protecting the health and safety of its citizens, especially vulnerable children.” Several prominent medical professional associations, however, have spoken out against bills like H.B. 1570 that limit transgender and gender diverse youth’s access to gender-affirming care. Those organizations include the American Academy of Pediatrics, the American Medical Association, the American Psychological Association, the American Psychiatric Association, and the American Academy of Child and Adolescent Psychiatry.
Research shows that puberty is an especially challenging and sensitive time for transgender and gender diverse youth. Increasingly, transgender and gender diverse youth are seeking gender-affirming medical care during early adolescence. Hormonal treatment, including drugs that postpone puberty in children and adolescents, can be lifesaving for these youth. Contradicting the reasoning in H.B. 1570, recent studies have found that youth are placed at increased risk of experiencing mental health problems when they delay gender-affirming care until later in life.
There is good reason why Governor Hutchinson described H.B. 1570 as a “vast government overreach.” The new law obstructs supportive family members, and parents in particular, from having a role in medical decisions involving transgender and gender diverse youth. The decision to seek gender-affirming medical care is a highly personal one. Family support can be critical for youth to navigate care. The sweeping nature of H.B. 1570 substitutes the personal opinions of lawmakers over what transgender youth, their families, and medical professionals agree is in the best interests of particular transgender youth. This overreach is legally questionable and harmful. In a recent study, parents expressed concern that laws like H.B. 1570 would only exacerbate mental health outcomes for their transgender children, including depression, anxiety, and suicidal ideation.
H.B. 1570 makes transgender youth in Arkansas feel unworthy and sends the message that they are not welcome in the state. It places transgender youth and their families in the very difficult position of having to choose between staying in Arkansas or moving out of the state to obtain or continue to receive gender-affirming care. For many, this is not a viable choice. Latest data from the USDA shows that more than 1 in 5 children live in poverty in the state of Arkansas. Arkansas has both the fifth highest poverty rate (16.0%) and fifth highest child poverty rate (21.7%) in the United States.
Family poverty in Arkansas has only become worse during the COVID-19 pandemic. Research shows that Arkansas has been one of the hardest hit states for families and children during the pandemic. With the devastation that the COVID-19 pandemic has caused for marginalized communities nationwide, we should be broadening access to medical care and not restricting it.
As catastrophic as H.B. 1570 is on its own terms, it is important not to lose sight of the fact that the law leaves transgender people in Arkansas even more vulnerable in a state where they already face great hostility and lack adequate protections. Arkansas is 1 of approximately 20 states nationwide that lack statewide anti-discrimination protections for LGBTQ people in vital areas including employment, housing, and public accommodations. In 2015, Arkansas passed the Intrastate Commerce Improvement Act, which effectively barred counties and municipalities from passing local anti-discrimination measures protecting LGBTQ people. Although Governor Hutchinson vetoed H.B. 1570, last month he signed two other laws that target the transgender community in Arkansas. The first law, S.B. 354, bans transgender women and girls from participating in sports consistent with their gender identity at the elementary, middle, high school, and collegiate levels. The second law, S.B. 289, allows doctors and other medical providers in Arkansas to refuse providing health care services if doing so would violate their religious or moral beliefs.
At the same time, Arkansas has left its mark on transgender law and policy with H.B. 1570. The sweeping and draconian bill stigmatizes and harms one of our most vulnerable youth populations. It is a drastic overreach into medical decisions that should be left to transgender and gender diverse youth, their families, and their medical providers.
Jordan Blair Woods is a law professor and Faculty Director of the Richard B. Atkinson LGBTQ Law & Policy Program at the University of Arkansas School of Law, Fayetteville. These remarks reflect his own views and not those of the University of Arkansas.
Suggested citation: Jordan Blair Woods, Arkansas Passes Sweeping and Draconian Law Targeting Transgender Youth, JURIST – Academic Commentary, April 12, 2021, https://www.jurist.org/commentary/2021/04/jordan-blair-woods-arkansas-law-targets-transgender-youth/.
This article was prepared for publication by Heidi Johnson, a JURIST assistant editor. Please direct any questions or comments to her at commentary@jurist.org
