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 ban with a proposal Monday to make it easier to file malpractice lawsuits against doctors who provide such care.
The proposal, which has been endorsed by a Senate committee, would allow someone who received gender-affirming care as a minor to file a malpractice lawsuit against their doctor for up to 30 years after they turn 18. Under current Arkansas law, medical malpractice claims must be filed within two years of what the law refers to as an “injury.”
The lawmaker behind Arkansas' legislation, which could go before the Senate as soon as Tuesday, said it's aimed at forcing medical providers to stop offering gender-affirming care to minors.
“The idea that teenagers, let alone little children, are capable of making such life-altering decisions is not only brand new, but it's absurd," Republican Sen. Gary Stubblefield, the measure's sponsor, said. “A society that allows them to do this is a deeply broken society."
The ban prohibits doctors from providing gender-confirming hormone therapy or puberty blockers to anyone under 18 — or referring them to other doctors who can provide that care. No gender-affirming surgery is performed on minors in the state.
The proposal, which other states are considering as part of broader bans on transgender care for children, would be a major change for how most malpractice claims are considered, legal experts said. By expanding the liability that doctors face for providing such care, the bill could make it nearly impossible for some providers to get malpractice insurance.
“For a doctor complying with the standard of care, they could still be held liable, which would be just a huge departure from the way malpractice works," said Stacey Lee, professor at law and ethics at the Johns Hopkins Carey Business School and the Bloomberg School of Public Health. “Essentially, what's happened is politicians have entered into the practice of medicine. It's almost tantamount to practicing without a medical license."
The move is another avenue for states to restrict transgender care, which GOP statehouse have targeted with dozens of bills this year. A federal judge who blocked Arkansas' ban on gender-affirming care for minors is now considering whether to strike down the law as unconstitutional. A similar ban in Alabama has also been temporarily blocked by a federal judge.
A ban on gender-affirming care signed into law by Utah's governor last month also expands the ability to file malpractice suits against some providers, and a similar provision is included in a ban advancing through Oklahoma's Legislature.
“We are playing a game of whack-a-mole in trying to stop these horrendous and dangerous attacks on people’s health care,” said Omar Gonzalez-Pagan, counsel and health care strategist for Lambda Legal. “At some point, it needs to stop because the costs are very real.”
Opponents of such treatments argue that minors are too young to make decisions about their gender identities. But the bans are opposed by nearly every major medical organization, including the American Medical Association and the American Academy of Pediatrics, who say gender-affirming care is safe if properly administered.
During the two-hour hearing Monday on Arkansas' malpractice proposal, some exchanges drew gasps and jeers in the committee room. At one point, Republican Sen. Matt McKee asked Gwendolyn Herzig, a transgender woman from Little Rock who testified against the ban, about her genitalia.
Herzig called the question “highly inappropriate."
McKee's question came after Herzig said that one of the biggest obstacles that transgender people face is a lack of empathy. “Bills like SB199 are designed to hinder, not help, Arkansans," she said.
The malpractice legislation includes a “safe harbor" provision that would give doctors a defense against malpractice lawsuits over providing gender-affirming care for children, but only if they follow restrictions that experts have said are inconsistent with the standard of care for the treatments. For example, the provision would effectively prevent doctors from administering the care to minors with several conditions, including depression, ADHD or eating disorders.
Health experts have said that minors with gender dysphoria who do not receive appropriate medical care face dramatically increased risk of suicide and serious depression.
“I have yet to see a cardiologist or gastroenterologist who has to fight this hard in order to take care of their patients," said Dr. Stephanie Ho, a Fayetteville physician who provides hormone therapy to transgender youth.
The current and former medical directors of Arkansas Children's Hospital's Gender Spectrum Clinic testified last year that the hospital had changed its policy — and stopped prescribing puberty blockers and hormone therapy to new patients. The clinic’s patients who were already on the medications continue to receive the treatment. The hospital did not respond to a request for comment about the malpractice proposal.
The bill was endorsed as other measures restricting transgender people's rights have advanced in recent weeks, including another bill prohibiting trans people from using restrooms at public schools that match their gender identity. Another bill in the Legislature that restricted drag shows was scaled back after facing complaints that it was anti-LGBTQ.
Republican Gov. Sarah Huckabee Sanders has also said an education bill she's advocating will include a measure similar to Florida's prohibition against instruction on sexual orientation and gender identity in kindergarten through third grade. Critics have called the Florida ban: “Don't Say Gay” law.
“Every day, when I get off work, I hop online, I look at the recently filed bills to see what horror awaits me today," said Aaron Jennen, whose 17-year-old daughter Sabrina has been receiving hormone therapy for the past two years and is among the families challenging Arkansas' ban. “That's what we do every single day."
Arkansas' current and proposed restrictions on trans youth anger Sabrina Jennen, who said they've been a factor for her plans after high school of where to go to college.
“They're just trying to paint an untrue picture about a very vulnerable group of people who are already struggling so much," she said. “They're just trying to make it harder for us to just be happy."
