Arkansas Just Made It Easier to Sue Providers of Gender-Affirming Care

Arkansas Republican Gov. Sarah Huckabee Sanders has signed a bill into law that makes it easier to sue providers of gender-affirming care for malpractice.

The legislation could make such care unavailable to transgender minors in the state, as doctors would find it “nearly impossible” to obtain malpractice insurance, legal experts told the Associated Press. In 2021, Arkansas became the first state to pass a law banning gender-affirming care for minors, but that law’s enforcement is blocked by a court injunction while a lawsuit against it proceeds.

Senate Bill 199, signed by Sanders Monday, gives people who received gender-affirming treatment as minors a window of 15 years to sue for malpractice after they turn 18. It will go into effect this summer. Current law states that malpractice suits have to be filed within two years of the incident.

“Arkansas infamously passed the first law in the nation to try to ban gender affirming care for trans youth and after hearing extensive evidence, the courts have blocked that ban,” Holly Dickson, executive director of the American Civil Liberties Union of Arkansas, said in a statement, the AP reports. “This bill is an effort to achieve indirectly what the Constitution prohibits the state from doing directly.”

Legislators approved the ban on gender-affirming care for minors by overriding then-Gov. Asa Hutchinson’s veto. It bans not only genital surgery, which is not recommended for minors and which is not being performed on minors in Arkansas, but also puberty blockers and hormone treatment for the purpose of gender transition.

The ACLU, representing four trans youth and their families as well as two doctors, sued over the law in federal court, arguing that it violated the U.S. Constitution’s guarantees of equal protection, due process, and free speech. The U.S. District Court for the Eastern District of Arkansas granted an injunction in August 2021 that blocks enforcement of the law until the court issues a decision. The case was heard last year, but the court hasn’t ruled yet.

Other states that have approved bans on gender-affirming care for trans minors include Alabama (also blocked by court action), Mississippi, South Dakota, Tennessee, and Utah.

Sanders signed the malpractice bill without fanfare. The Republican legislators who backed it “repeatedly said the bill should prevent ‘irreversible harm’ to the bodies of children who might grow up to regret certain medical treatments,” according to the Arkansas Advocate (no relation to this publication).

Opponents pointed out that transition regret is extremely rare and that the effects of nonsurgical treatment are usually reversible — and lifesaving. Simon Garbett, a 16-year-old trans boy from Little Rock, testified against the malpractice bill by saying testosterone treatment has greatly enhanced his life.

“Passing this bill will guarantee that my future will be jeopardized,” he said, as reported by the Arkansas Advocate. “Losing access to this health care will mean my blood will be on your hands.”

The malpractice bill’s Senate sponsor, Republican Gary Stubblefield, told the AP he wasn’t sure whether to expect a lawsuit against the measure. “Anything can create a court challenge in the world we live in today,” he said. “I know we did what we thought was best for our children.”

The law will go into effect 90 days after the legislature adjourns, which won’t happen at least until April. Several other anti-LGBTQ+ and specifically anti-trans bills, including restrictions on drag performances and restroom use by trans people, are under consideration by Arkansas lawmakers.

The Human Rights Campaign issued a statement condemning the malpractice legislation. “It’s outrageous that politicians who lack even the most basic medical training are now legislating their personal beliefs onto the people they are supposed to serve,” said Eri Reece, the HRC’s Arkansas state director. “Decisions about what age-appropriate, best practice medical care – care that is supported by every major medical association including the American Medical Association and the American Academy of Pediatrics – is appropriate for a specific transgender youth should be left up to that individual with their family and their doctors. All patients should have access to factual information rather than political propaganda about their care options.”