Attorney General Tim Griffin asked today that the full federal appeals court hear the state’s appeal of a judge’s ruling that struck down Arkansas’s ban on gender-affirming medical care for transgender youth.
In June, U.S. District Judge James Moody ruled that Arkansas’s transgender-care ban, the first of its kind in the nation, was unconstitutional. In July, Griffin appealed to the 8th U.S. Circuit Court of Appeals in St. Louis. Knowing the court often lets a three-judge panel first decide cases, Griffin asked today that the full court go ahead and hear this one.
In a news release, Griffin (a Republican) said, “Two other federal courts of appeal have allowed similar laws protecting children from experimental gender-transition procedures in Tennessee, Kentucky and Alabama to go into effect. Those decisions demonstrate that last year’s three-judge panel decision upholding an order blocking Arkansas’s law was erroneous, and that’s why I am asking the entire court to overrule that decision.”
What Griffin’s release did not mention was that the panel wasn’t alone in rebuffing Arkansas’s appeal last year. After the panel’s decision, the state asked the full court to overturn what was then a temporary ban on the law, and the full court also refused. Notably, five of the court’s 11 judges dissented and would have granted a rehearing on the temporary ban. Griffin’s hoping that since the vote was so close, it could change if it were to be reheard.
In today’s filing, Griffin wrote that “the panel’s erroneous standard conflicts with the decisions of two other circuits.”
“Following the denial of Arkansas’s petition, both the Sixth and Eleventh Circuits concluded that the panel applied the wrong legal standard, held laws regulating pediatric gender … transition procedures are only subject to rational-basis review, and sustained two substantially similar laws,” Griffin wrote.
Arguing that that the judge’s ruling was unconstitutional, Griffin cited the U.S. Supreme Court’s Dobbs ruling last year. That’s the ruling that overturned the decades-old Roe v. Wade decision, shuttering access to abortion in states that passed restrictions.
“That’s because — as both of those circuits explained,” Griffin said,” under the Supreme Court’s most recent equal protection holding in Dobbs v. Jackson Women’s Health [Organization], … regulations of gender-transition procedures do not implicate a suspect classification and thus do not warrant heightened scrutiny. That’s the correct analysis, and applying that standard, Arkansas’s law — and similar laws enacted in all but one state in this Circuit — are constitutional.”
“So to avoid unnecessary delay, wasting judicial resources, and to align this
Court’s precedent with the rest of the country, this Court should grant initial hearing by the full court” and “join the Sixth and Eleventh Circuits in holding that rational-basis review applies, and reverse [Moody’s] decision,” Griffin argued.
Unnecessary delay, Griffin contended, means that Arkansas children “will continue to suffer the consequences of experimental procedures — including, as the district court acknowledged, permanent sterilization.”
The ACLU of Arkansas, which represents the trans youth and their families in the lawsuit, has previously said the state’s appeal was “predictable and severely misguided.”
“Politicians need to read and heed the judge’s order, be honest with the public about the safety of this life-saving care, and stop bullying young Arkansans and their families,” said Holly Dickson, executive director of the Arkansas chapter of the ACLU.
You can read Griffin’s full court filing here.