By ANDREW DeMILLO – Associated Press
LITTLE ROCK, Ark. (AP) — Nearly two years after Arkansas became the first state to enact a now-blocked ban on gender-affirming underage care, Republican lawmakers are attempting to effectively reinstate the ban with a proposal Monday to make it easier to address medical malpractice lawsuits to file against doctors who offer such treatments.
The proposal, approved by a Senate committee, would allow someone who received gender-affirming care as a minor up to 30 years after turning 18 to file a malpractice lawsuit against their doctor, having to do so within two years of what the law designates as a “violation” may be filed.
Lawmakers behind the Arkansas legislation, which could go before the Senate as early as Tuesday, said it aims to force medical providers to stop providing gender-affirming care to minors.
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“The idea of teenagers, let alone young children, being able to make such life-changing decisions is not only brand new, it’s preposterous,” said Republican Senator Gary Stubblefield, the measure’s sponsor. “A society that allows them to do this is a deeply broken society.”
The ban prohibits doctors from offering sex-confirming hormone therapy or puberty blockers to anyone under the age of 18 — or referring them to other doctors who can provide that care. No gender-affirming surgery is performed on minors in the state.
The proposal, which other states are considering as part of a broader ban on transgender childcare, would represent a significant change in how most malpractice claims are considered, legal experts said. By expanding the liability doctors face for providing such care, the law could make it nearly impossible for some providers to purchase malpractice insurance.
“For a doctor who upholds the standard of care, they could still be held liable, which would just be a huge departure from the way malpractice works,” said Stacey Lee, professor of law and ethics at Johns Hopkins Carey Business School and the Johns Hopkins Carey Business School Bloomberg School of Public Health. “Essentially what happened was that politicians entered the practice of medicine. It’s almost tantamount to practicing without a doctor’s license.”
The move is another way for states to limit transgender grooming, which the GOP Statehouse has targeted with dozens of bills this year. A federal judge who blocked Arkansas’ ban on gender-affirming childcare is now considering whether to dismiss the law as unconstitutional. A similar ban in Alabama was also temporarily blocked by a federal judge.
A ban on gender-affirming care signed into law by the Utah governor last month also expands the ability to file misconduct lawsuits against some providers, and a similar provision is included in a ban being pushed through the Oklahoma legislature.
“We are trying to stop these appalling and dangerous attacks on people’s healthcare,” said Omar Gonzalez-Pagan, consultant and healthcare strategist at Lambda Legal. “Eventually it has to stop because the costs are very real.”
Opponents of such treatments argue that minors are too young to make decisions about their gender identity. But the bans are opposed by almost every major medical organization, including the American Medical Association and the American Academy of Pediatrics, which say gender-affirming care is safe when done properly.
During Monday’s two-hour hearing on Arkansas’ misconduct proposal, some conversations in the committee room caused a stir and derision. Republican Senator Matt McKee once asked Gwendolyn Herzig, a transgender woman from Little Rock who testified against the ban, about her genitals.
Herzig called the question “highly inappropriate”.
McKee’s question came after Herzig said that one of the biggest obstacles transgender people face is a lack of empathy. “Bills like SB199 are meant to hinder, not help, Arkansans,” she said.
Malpractice legislation includes a “safe harbor” provision that would give physicians a defense against malpractice claims for gender-affirming child care, but only if they follow restrictions that experts say are inconsistent with the standard of care for treatments. For example, the Determination Effectively preventing physicians from treating minors with multiple medical conditions, including depression, ADHD, or eating disorders.
Health experts have said that minors with gender dysphoria who do not receive proper medical care are at dramatically increased risk of suicide and major depression.
“I have never seen a cardiologist or a gastroenterologist who has to fight so hard to take care of their patients,” said Dr. Stephanie Ho, a Fayetteville doctor who offers hormone therapy to transgender youth.
The current and former medical directors of Arkansas Children’s Hospital’s Gender Spectrum Clinic testified last year that the hospital changed its policies and stopped prescribing puberty blockers and hormone therapies to new patients. The patients in the clinic who were already taking medication will continue to be treated. The hospital did not respond to a request for comment on the malpractice proposal.
The law was approved as other measures to limit the rights of transgender people have advanced in recent weeks, including another law banning trans people from using gender-consistent toilets in public schools. Another bill restricting drag shows was scaled back after facing complaints it was anti-LGBTQ.
Republican Gov. Sarah Huckabee Sanders has also said an education bill she supports will include a measure similar to Florida’s ban on teaching about sexual orientation and gender identity in kindergarten through third grade. Critics have dubbed the Florida ban the “Don’t Say Gay” law.
“Every day when I get home from work, I go online, look at the recently filed bills to see what horrors I’m in for today,” said Aaron Jennen, whose 17-year-old daughter Sabrina has been on long-term hormone therapy two years and is among families contesting the Arkansas ban. “We do that every day.”
Arkansas’ current and planned restrictions on trans youth anger Sabrina Jennen, who said they were a factor in her plans after high school where she would go to college.
“You’re just trying to paint an untrue picture of a very vulnerable group of people who are already struggling so much,” she said. “They’re just trying to make it harder for us to just be happy.”
Associated Press writers Sean Murphy in Oklahoma City and Sam Metz in Salt Lake City contributed to this report
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