Federal court rulings suggest new Iowa law is unconstitutional

Similar laws blocked in four states

Photo by Progress Iowa from a rally outside Iowa’s state capitol on March 5, 2023

This analysis first appeared at Bleeding Heartland and is shared here as part of the Iowa Writers Collaborative. Laura Belin previously covered the Iowa House and Senate debates over the ban on gender-affirming care. For regular emails linking to all recent Bleeding Heartland articles and commentary, subscribe to the free Evening Heartland newsletter.

Iowa's Republican leaders have few checks remaining on their power. But one law approved during the 2023 legislative session appears unlikely ever to go into effect.

Federal judges in four states have blocked the government from enforcing bans on gender-affirming care for minors.

U.S. District Court Judge James Moody issued the most comprehensive ruling on the matter on June 20, when he permanently enjoined an Arkansas law enacted in 2021. Moody found the law violated the Fourteenth and First Amendments of the U.S. Constitution. Three other judges, including two appointed by President Donald Trump, have issued preliminary injunctions on similar laws in Indiana, Alabama, and Florida while litigation proceeds.

Although Arkansas Governor Sarah Huckabee Sanders has said she will appeal the ruling in Brandt v Rutledge, Judge Moody's extensive findings of fact could influence the outcome on the Eighth Circuit Court of Appeals, where a challenge to Iowa's ban on gender-affirming care may eventually be heard.

FINDINGS OF FACT SPELL TROUBLE FOR IOWA'S LAW

No Iowan has yet filed suit to challenge Senate File 538, which broadly prohibits gender-affirming care, including puberty blockers, hormone treatments, and surgery, for Iowans under age 18. Since those provisions are slated to become applicable 180 days after March 22 (the date Governor Kim Reynolds signed the bill into law), transgender and nonbinary youth are not yet banned from receiving the health care targeted.

I would guess that prospective plaintiffs in Iowa have been waiting for the District Court ruling out of Arkansas. Judge Moody presided over an eight-day bench trial last year, where each side offered witnesses and presented evidence. The court's decision includes 311 findings of fact, spanning nearly 60 pages (click here to read or download).

Chris Geidner explained in his Law Dork newsletter,

While Moody’s ultimate ruling in the case and legal conclusions obviously matter, his findings of fact issued Tuesday could be the most important aspect of his decision. Because trial judges are able to review the evidence and are closest to the case at trial, their findings of fact are accepted on appeal unless the appeals court finds that the those findings constitute a “clear error,” a deferential standard.

Some of the findings were specific to the Arkansas plaintiffs, but many would be relevant to litigation over Iowa's law. Erin Reed summarized a few important ones, all of which would support a case filed by affected Iowans. I've grouped the following excerpts by section in the District Court's ruling.

Basic facts about gender identity

Judge Moody determined that "Gender identity is not something that an individual can control or voluntarily change," which matters when a court considers whether to subject the law to heightened scrutiny.

Furthermore, the Arkansas ruling acknowledged gender dysphoria "is a serious condition that, if left untreated, can result in other psychological conditions including depression, anxiety, self-harm, suicidality, and impairment in functioning."

During this year's Iowa legislative debates, Republican advocates of banning gender-affirming care asserted that many transgender children would identify with their gender assigned at birth if not given puberty blockers. But after examining the evidence, Judge Moody found, "Research and clinical experience show that when gender incongruence continues after the onset of puberty, it is very unlikely that the individual will come to identify with their sex assigned at birth later in life."

On the contrary: "It is widely recognized in the medical and mental health fields that, for many people with gender dysphoria, the clinically significant distress caused by the condition can be relieved only by living in accordance with their gender identity, which is referred to as gender transition."

Science and guidelines

Like their counterparts in Arkansas, Iowa Republicans characterized gender-affirming care as "experimental procedures" on children. Judge Moody noted that numerous "scientific and medical organizations all recognized the effectiveness and safety of gender-affirming medical care." Some of those associations have established clinical practice guidelines for treating gender dysphoria.

The upshot is that "Transgender care is not experimental care," according to the federal court ruling from Arkansas. Furthermore, "Providing treatment for gender dysphoria does not cause a person to be or remain transgender and there is no treatment that can change a person’s gender identity."

Informed consent for medical interventions

When the Iowa House debated the gender-affirming care ban, State Representative Steven Holt insisted, "We are doing this for the protection of our children," because Republicans don't think there can be "informed consent." Children are unable to assess long-term risks, he claimed, and their parents don't have adequate information.

The state of Arkansas made similar arguments. But Judge Moody found, "The informed consent process is adequate to enable minor patients and their parents to make decisions about gender-affirming medical care for adolescents."

There was no evidence children were being rushed into treatment with hormones or puberty blockers. The main provider of gender-affirming care for adolescents in Arkansas conducts a "comprehensive" evaluation and assessment. Hormone therapy begins only if a child's gender identity has "remained consistent and persistent over time."

Research on treatments that would be banned

Republicans have asserted that research doesn't support any long-term benefits from gender-affirming care. But Judge Moody examined sixteen "scientific studies assessing the use of puberty blockers and hormone therapy to treat adolescents with gender dysphoria." The body of research "found these treatments are effective at alleviating gender dysphoria and improving a variety of mental health outcomes including anxiety, depression, and suicidality."

Risks and side effects

Holt and the Iowa Senate floor manager, Jeff Edler, argued that while some studies have shown short-term benefits of gender-affirming care, Republicans were more worried about long-term issues such as reduced bone density or possible loss of fertility.

But Judge Moody found that for many adolescents, "the benefits of treatment greatly outweigh the risks," since treatment "significantly alleviates the distress of gender dysphoria, improves their mental health, and enables them to engage in school and social activities."

In addition, "There is nothing unique about the risks of gender-affirming medical care for adolescents that warrants taking this medical decision out of the hands of adolescent patients, their parents, and their doctors." Rather, "It is common for adolescents to undergo medical treatments that carry comparable or greater risks than gender-affirming medical care."

"Desistance, Detransitioning and Regret"

Iowa Republicans have portrayed the new law as protecting children from treatment they may later regret. The Arkansas judgment noted, "Regret over a medical procedure is not unique to gender-affirming medical care and is common in medicine."

One of the expert witnesses for the Arkansas plaintiffs has treated thousands of patients with gender dysphoria, none of whom "came to identify with their sex assigned at birth after medically transitioning." Studies the state offered "to assert that gender incongruence will naturally desist for most youth were focused on prepubertal children and say nothing about the likelihood of gender incongruence desisting among adolescents, the group affected by Act 626."

More broadly, Judge Moody found,

Providing gender-affirming medical care does not cause youth to persist rather than desist in their gender incongruence. Adolescents with gender dysphoria are unlikely to desist whether or not they receive gender-affirming medical care. And youth do not receive medical treatment unless their gender incongruence has persisted into adolescence.

State regulation of medical practice

During Iowa House and Senate subcommittee discussions, Holt and Edler cited the lack of randomized clinical trials on the use of hormones or puberty blockers for young people. They also pointed out that providing such treatments to transgender children is an off-label use, not approved by the Food and Drug Administration.

The state of Arkansas raised the same points. But Judge Moody found the Arkansas Board of Medicine regulates health care providers through rules "that are consistent with best practices in a particular field." The state "does not ban medical treatments for lack of randomized controlled clinical trials supporting their use," nor does it "ban medical treatments with a limited evidence base."

Instead, "Even where there are known risks of a treatment and no evidence of effectiveness, the [Arkansas] Board leaves treatment decisions to patients, parents, and their physicians." That board "is not aware of any minors in Arkansas who have been harmed by gender-affirming care."

Supporters of Iowa's law also failed to present any evidence that any children were harmed after receiving gender-affirming care in this state.

Harm to plaintiffs

To block a law from going into effect, plaintiffs must show they will suffer some irreparable harm. When the Iowa Senate debated Senate File 538, Edler expressed concern about "long-term effects" from various medications and procedures. Democratic State Senator Liz Bennett then asked him, "Would you consider committing suicide prior to transitioning to be a long-term effect?"

In this vein, Judge Moody noted, "The harms are severe and irreparable for adolescents with gender dysphoria who need but are unable to access gender-affirming medical care." Delaying such care "when indicated puts patients at risk of worsening anxiety, depression, hospitalization, and suicidality." Indeed, "Not all adolescents with gender dysphoria will live to age 18 if they are unable to get gender-affirming medical treatment."

Expert witnesses

Ten pages of the Arkansas ruling assessed the qualifications and credibility of witnesses who testified during last year's trial. The four expert witnesses for the plaintiffs were all medical professionals who have treated hundreds or thousands of patients with gender dysphoria. The judge determined all four "have deep knowledge of the subject matter of their testimony and were fully qualified to provide the opinion testimony they offered. They have provided credible and reliable testimony relevant to core issues in this case."

In contrast, only one of the state's experts has clinical experience in this field, and he does not categorically refuse to provide the treatments that would be banned. "In his practice, he has enabled minor patients with gender dysphoria to access hormone therapy on a case-by-case basis."

The other three experts for the state had no professional training in this area. The Christian-based legal advocacy group Alliance Defending Freedom, which has provided model language to GOP lawmakers in Iowa and other states, recruited them to testify in Arkansas. The judge found those three witnesses "were unqualified to offer relevant expert testimony and offered unreliable testimony. Their opinions regarding gender-affirming medical care for adolescents with gender dysphoria are grounded in ideology rather than science."

Like Iowa Republican legislators, expert witnesses called by the state of Arkansas "referenced guidelines issued by government health authorities in Sweden, Finland, and the United Kingdom." However, "none of these guidelines have prohibited gender-affirming medical care for minors."

I expect many findings of fact in Brandt to be cited in a petition challenging Iowa's law, which will surely be filed in the coming months.

EQUAL PROTECTION, DUE PROCESS, AND FREE SPEECH VIOLATIONS

Judge Moody's legal conclusions also suggest Iowa's law will not withstand a court challenge. Courts review many state laws and policies using a "rational basis" test, where the government only needs to show the policy is rationally related to some legitimate state interest.

But "a sex-based classification is subject to heightened scrutiny," Judge Moody wrote. The Arkansas law "discriminates on the basis of sex because a minor's sex at birth determines whether the minor can receive certain types of medical care [...]."

The law "also discriminates against transgender people," who share all characteristics of a "suspect class."

(1) they have historically been subject to discrimination; (2) they have a defining characteristic that bears no relation to their ability to contribute to society; (3) they may be defined as a discrete group by obvious, immutable, or distinguishing characteristics; and (4) they are a minority group lacking political power.

To justify a law discriminating on the basis of sex, the state must “show that the statute is substantially related to a sufficiently important government interest.”

Like Iowa Republicans, politicians in Arkansas claimed the law "advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics." The state asserted in court that the banned treatments are not effective and have many risks and side effects. They claimed many young patients will revert to identifying with their gender assigned at birth if denied access to puberty blockers or hormones, and some will regret receiving such treatments. Finally, the state claimed medical professionals were providing gender-affirming care "without appropriate evaluation and informed consent."

Judge Moody determined, "The evidence presented at trial does not support these assertions." He explained why on pages 67 through 74 of his decision. For that reason, the law violates the Fourteenth Amendment's Equal Protection Clause.

A second constitutional problem: "the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary." That's a due process violation under the Fourteenth Amendment.

Finally, the judge deemed the Arkansas law to regulate doctors' speech in violation of the First Amendment. "It prevents doctors from informing their patients where gender transition treatment may be available. It effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available."

Iowa's law has the same equal protection and due process problems. I'm not sure how it would fare on a First Amendment claim. The subsection of Senate File 538 that prohibits aiding and abetting the restricted practices includes the following sentence: "This paragraph shall not be construed to impose liability on any speech protected by federal or state law."

OTHER FEDERAL COURTS REACHED SAME PRELIMINARY CONCLUSIONS

Arkansas was the first state to enact a ban on gender-affirming care for minors, and the Brandt case is the first lawsuit of its kind to receive a final judgment on the merits. Some conservatives have discounted the significance of the ruling because President Barack Obama appointed Judge Moody.

They shouldn't be so confident.

In the Arkansas case, a three-judge panel on the Eighth Circuit Court of Appeals affirmed the District Court's preliminary injunction last year. That order accepted crucial legal determinations: for instance, that the law should be subjected to heightened scrutiny, not a "rational basis" standard that would be easier for the state to meet. That's no guarantee the Eighth Circuit will affirm the Arkansas decision, but it's a positive sign for plaintiffs.

Meanwhile, U.S. District Court Judge Liles Burke (a Trump appointee) issued a preliminary injunction in May 2022, blocking enforcement of Alabama's ban on gender-affirming care for minors. Judge Burke found, "Parent Plaintiffs are substantially likely to show that the Act infringes on their fundamental right to treat their children with transitioning medications subject to medically accepted standards."

The Alabama judge also found the law "amounts to a sex-based classification for purposes of the Equal Protection Clause." That requires the state to show the law is related to an important government interest. But "Defendants fail to produce evidence showing that transitioning medications jeopardize the health and safety of minors suffering from gender dysphoria. Nor do Defendants offer evidence to suggest that healthcare associations are aggressively pushing these medications on minors." So the children named as plaintiffs are "substantially likely to succeed on their Equal Protection claim."

Early this month, U.S. District Judge Robert Hinkle (a Bill Clinton appointee) put Florida's ban on hold pending trial. His decision contained some blunt language: "The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear."

Denying treatment for gender dysphoria "will cause needless suffering for a substantial number of patients and will increase anxiety, depression, and the risk of suicide."

Like the other federal judges who have considered similar cases, Judge Hinkle agreed the law must be subject to heightened scrutiny because it contains a sex-based classification.

Consider an adolescent, perhaps age 16, that a physician wishes to treat with testosterone. Under the challenged statute, is the treatment legal or illegal? To know the answer, one must know the adolescent’s sex.

Other medications might or might not be legal, depending on whether a Florida patient is transgender. Judge Hinkle declared the law to be "purposeful discrimination" against transgender people. And "there is no rational basis, let alone a basis that would survive heightened scrutiny, for prohibiting these treatments in appropriate circumstances."

He found the Florida plaintiffs were likely to succeed on both equal protection and parental rights claims.

Also this month, U.S. District Court Judge James Patrick Hanlon (a Trump appointee) issued a preliminary injunction preventing the state of Indiana from enforcing most of its law banning gender-affirming care for minors. That decision found plaintiffs would likely succeed on equal protection and free speech claims.

As with Iowa's law, a medical provider could not know whether some treatments are permissible "without knowing the patient's sex." And "while the State has identified legitimate reasons for regulation in this area," Indiana officials didn't present evidence showing the ban on gender-affirming care "was closely tailored to uphold those interests," as required to survive heightened scrutiny.

Judge Hanlon wrote that the Indiana law "appears to burden speech 'on its face and in its practical operation' because 'aiding and abetting' directly prohibits referrals and collaboration among medical providers."

Final note: Iowa Republican lawmakers tried to pre-empt one legal argument when they drafted new statutory language on parents' rights as part of a wide-ranging education bill. They carved out an exception for Senate File 538 (the ban on gender-affirming care for minors) in a code section that spells out the "fundamental, constitutionally protected right" of parents and guardians "to make decisions affecting the parent's or guardian's minor child, including decisions related to the minor child's medical care [...]."

To borrow a phrase from a popular meme, that's not how any of this works. Federal courts don't let states infringe on some people's fundamental rights just because the legislature decided the U.S. Constitution doesn't apply to that situation.

UPDATE: Two more federal judges issued preliminary injunctions blocking state bans on gender-affirming care for minors on June 28. District Court Judge David Hale (an Obama appointee) blocked Kentucky from enforcing its law, and District Court Judge Eli Richardson (a Trump appointee) enjoined most of Tennessee's law, aside from a surgery ban.

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