Brandt v. Rutledge

• Decision Date: 02 August 2021
• Docket Number: 4:21CV00450 JM
• Citation: 551 F.Supp.3d 882
• Parties: Dylan BRANDT, et al., Plaintiffs v. Leslie RUTLEDGE, et al., Defendants
• Court: U.S. District Court — Eastern District of Arkansas

551 F.Supp.3d 882

Dylan BRANDT, et al., Plaintiffs

v.Leslie RUTLEDGE, et al., Defendants

4:21CV00450 JM

United States District Court, E.D. Arkansas, Central Division.

Signed August 2, 2021

Alexander S. Holland, Pro Hac Vice, Garrard Russ Beeney, Pro Hac Vice, Jonathan Joseph Ossip, Pro Hac Vice, Sullivan & Cromwell, LLP, Chase Strangio, Leslie Cooper, James D. Esseks, American Civil Liberties Union, New York, NY, Breean Walas, Walas Law Firm, PLLC, Bozeman, MT, Christopher L. Travis, Peter Drake Mann, Sharon Elizabeth Echols, Gill Ragon Owen P.A., Sarah Everett, Arkansas Civil Liberties Union Foundation, Inc., Little Rock, AR, Duncan C. Simpson LaGoy, Pro Hac Vice, Laura Kabler Oswell, Pro Hac Vice, Sullivan & Cromwell LLP, Palo Alto, CA, for Plaintiffs.

Michael Cantrell, Nicholas J. Bronni, Emily Yu, Ka Tina Rena Guest, Vincent Moore Wagner, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.

SUPPLEMENTAL ORDER

James M. Moody Jr., United States District Judge

After further consideration, the Court supplements the ruling made at the conclusion of the July 21, 2021 hearing to include the following findings:

On April 6, 2021, the Arkansas Legislature passed House Bill 1570, Act 626 of the 93rd General Assembly of Arkansas, to be codified at Ark. Code Ann. §§ 20-9-1501 to 20-9-1504 and 23-79-164 ("Act 626"). Act 626 prohibits a physician or other healthcare provider from providing or referring any individual under the age of 18 for "gender transition procedures."

"Gender transition procedures" means the process in which a person goes from identifying with and living as a gender that corresponds to his or her biological sex to identifying with and living as a gender different from his or her biological sex, and may involve social, legal, or physical changes;

(6)(A) "Gender transition

procedures" means any medical or surgical service, including without limitation physician's services, inpatient and outpatient hospital services, or prescribed drugs related to gender transition that seeks to:

(i) Alter or remove physical or anatomical characteristics or features that are typical for the individual's biological sex; or

(ii) Instill or create physiological or anatomical characteristics that resemble a sex different from the individual's biological sex, including without limitation medical services that provide puberty-blocking drugs, cross-sex hormones, or other mechanisms to promote the development of feminizing or masculinizing features in the opposite biological sex, or genital or nongenital gender reassignment surgery performed for the purpose of assisting an individual with a gender transition.

AR LEGIS 626 (2021), 2021 Arkansas Laws Act 626 (H.B. 1570). The Defendants asserts that Arkansas has a compelling government interest in protecting the health and safety of its citizens, particularly "vulnerable" children who are gender nonconforming or who experience distress at identifying with their biological sex. Id.

Plaintiffs are minors, Dylan Brandt, Sabrina Jennen, Brooke Dennis, Parker Saxton (the "Patient Plaintiffs"), their parents, Joanna Brandt, Lacey and Aaron Jennen, Amanda and Shayne Dennis, Donnie Saxton (the "Parent Plaintiffs") and their healthcare providers, Dr. Michele Hutchison, and Dr. Kathryn Stambough (the "Physician Plaintiffs"). Plaintiffs have filed suit claiming the Act violates the Equal Protection Clause, Due Process Clause, and the First Amendment. They seek a preliminary injunction to enjoin Defendants and their successors in office from enforcing Act 626 during the pendency of this litigation. Plaintiffs contend that Act 626 categorically prohibits transgender adolescents with gender dysphoria

from treatment, that the patient, their parents, and their medical providers agree, is medically necessary and in the adolescent's best interest. They allege that the Act singles out individuals in need of medically necessary gender-affirming care solely because the individual's gender identity does not conform to their assigned sex at birth.

I. Rule 12(b)(1) Motion to Dismiss

As stated on the record, the Court finds that the Patient and Parent Plaintiffs have standing under the Equal Protection Clause to challenge Act 626's prohibition of "gender transition procedures" as that term is defined in Ark. Code Ann. §§ 20-9-1501(6). They also have standing to challenge the Act's authorization of private rights of action. "Where an unconstitutional statute provides for enforcement both through official acts and private suits, Plaintiffs with standing to seek an injunction against the official acts may also challenge the constitutionality of private suits." See Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 887-88, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

The Court finds that Physician Plaintiffs have standing in their own right to challenge the Act's unequal treatment between healthcare providers who provide gender-affirming care to transgender patients, which would be prohibited by Act 626, and other healthcare providers, who provide all other medically accepted care, including gender-affirming care to non-transgender patients, which is not prohibited. See Am. Coll. of Obstetricians & Gynecologists v. U.S. Food & Drug Admin. , 472 F. Supp. 3d 183, 206 (D. Md. 2020).

The Court finds that Physician Plaintiffs have third-party standing to challenge Act 626 on behalf of their patients based upon the Supreme Court's opinion in June Med. Serv's. LLC v. Russo , ––– U.S. ––––, 140 S. Ct. 2103, 2118-2119, 207 L.Ed.2d 566 (2020) ("[W]e have generally permitted plaintiffs to assert third-party rights in cases where the ‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.’ ") (quoting Kowalski v. Tesmer , 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) ). Further, Physician Plaintiffs have alleged a close relationship with their patients and a hindrance to their patients’ ability to protect their interests because of the risk of discrimination and their patients’ desire to protect their privacy. See Singleton v. Wulff , 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (patient may be "chilled" from asserting their rights "by a desire to protect the very privacy of [their] decision from the publicity of a court suit.").

II. Preliminary Injunction

"The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief."

Ferry-Morse Seed Co. v. Food Corn, Inc. , 729 F.2d 589, 593 (8th Cir. 1984). The Court considers four factors in evaluating Plaintiffs’ request for a preliminary injunction: (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm in the absence of an injunction; (3) the balance of equities; and (4) the public interest. Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co. , 997 F.2d 484, 485-86 (8th Cir. 1993). "When the government is a party, these last two factors merge." Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

A. Equal Protection

To analyze Plaintiffs’ facial challenge to Act 626, the Court must determine what level of scrutiny applies and whether Act 626 survives that scrutiny. The Court concludes that heightened scrutiny applies to Plaintiffs’ Equal Protection claims because Act 626 rests on sex-based classifications and because "transgender people constitute at least a quasi-suspect class." Grimm v. Gloucester Cty. Sch. Bd. , 972 F.3d 586, 607 (4th Cir. 2020) ; accord Bostock v. Clayton County , ––– U.S. ––––, 140 S. Ct. 1731, 1741, 207 L.Ed.2d 218 (2020) (discrimination for being transgender is discrimination "on the basis of sex"). Defendants argue that Act 626 does not specifically refer to transgender individuals. It does, however, refer to gender transition which is only sought by transgender individuals. See Bray v. Alexandria Women's Health Clinic , 506 U.S. 263, 270, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) ("Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed.").

Under heightened scrutiny, Act 626 must be substantially related to a sufficiently important governmental interest. A policy subject to intermediate scrutiny must be supported by an "exceedingly persuasive justification." United States v. Virginia , 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The policy must serve important governmental objectives, and the government must show "that the discriminatory means employed are substantially related to the achievement of those objectives." Id. at 533, 116 S.Ct. 2264 (citation omitted).

Defendants contend that Act 626 is substantially related to the State's important governmental objectives of protecting vulnerable children from experimental treatment and regulating the ethics of the medical profession. Defendants contend that there is a lack of credible scientific evidence that gender-transition procedures improve children's health. They also contend that the consequences of performing these procedures on Arkansas children are too great to allow physicians and healthcare providers to continue performing them. Defendants state that the Arkansas General Assembly passed Act 626 in response to a recent judicial ruling of the U.K. High Court of Justice of England and Wales and an Arizona district court. See Bell v. Tavistock and Portman Nat'l Health Serv. Found. Trust , [2020] EWHC (Admin) 3274; Hennessy-Waller v. Snyder , 529 F.Supp.3d 1031, 1034–35, (D. Ariz. Mar. 30, 2021).

In Tavistock , the U.K. High Court considered the "narrow" issue of whether "a child or young person under the age of 16 [can] achieve Gillick¹ competence in respect of the decision to take PBs [puberty blockers] for GD [gender dysphoria

]" Id. at ¶133. Although...