The U.S. Eighth Circuit Court of Appeals has granted Arkansas Attorney General Tim Griffin’s request for an initial “en banc” hearing in his appeal of a federal judge’s order that struck down an Arkansas law banning gender affirming health care for minors earlier this year.
When a case is appealed in the federal court system, it’s typically heard by a three-judge panel drawn from the appellate court, at least initially. An initial en banc review means all 11 judges on the Eighth Circuit will hear this appeal from the beginning.
The full Eighth Circuit has already weighed in on this case at an earlier stage, before U.S. District Judge James Moody made his final decision. At that time, the state asked a panel of the appellate court to overturn what was then a temporary hold on the Arkansas law. The panel said no, and Griffin asked the full Eighth Circuit to consider the matter. The state was again rebuffed, but only narrowly: Five of the 11 judges dissented and would have granted a rehearing.
Because the decision was so close, Griffin is surely hoping a hearing on Moody’s final order could have a different result.
Griffin will also be encouraged by recent rulings from some other federal appellate courts on similar cases. Appellate panels in the Sixth and 11th Circuits have thrown out rulings from lower courts that had temporarily blocked Tennessee and Alabama bans on trans youth health care resembling the one in Arkansas. Meanwhile, other federal courts (and some state courts) have joined Moody in siding with plaintiffs challenging such bans.
The New York Times recently wrote about the chaotic legal landscape surrounding the issue, which will inevitably find its way before the U.S. Supreme Court. And because Arkansas’s case is further along than those in other states, it might well get there first.
Griffin’s request for a hearing from the full Eighth Circuit was opposed by the ACLU of Arkansas, which is representing a group of plaintiffs composed of physicians, four transgender youths and their parents.
ACLU of Arkansas Executive Director Holly Dickson said the case was likely to go to the full court anyway, eventually. “It will be what it will be,” she said.
Griffin called the decision of the full Eighth Circuit to hear the appeal “historic.”
“I am very pleased with today’s order as it allows my office to continue fighting to protect our state’s children from dangerous medical experimentation,” he said in a statement. “Two other federal courts of appeal have already allowed similar laws protecting children from experimental gender-transition procedures in Tennessee, Kentucky and Alabama to go into effect. I thank Solicitor General Nicholas Bronni, Deputy Solicitor General Dylan Jacobs and their team for the great work to secure this order for initial en banc review.”