Bill allowing malpractice suits for transgender minors’ health care goes to governor's desk
A proposed law that would open the door for medical malpractice lawsuits against Arkansas doctors who provide gender-affirming care to transgender minors passed the House on Wednesday and will go to Gov. Sarah Huckabee Sanders’ desk.
Senate Bill 199 would create civil liability for a doctor who “performs a gender transition procedure on a minor … if the minor is injured, including without limitation any physical, psychological, emotional, or physiological injury, by the gender transition procedure, related treatment, or the after effects.”
A patient would be able to sue a doctor up to 15 years after turning 18. The bill originally provided a 30-year statute of limitations before it was amended in February. Current law regarding medical practice lawsuits sets a two-year timeframe for filing litigation.
The bill’s sponsors, Rep. Mary Bentley (R-Perryville) and Sen. Gary Stubblefield (R-Branch), have said the bill should prevent “irreversible harm” to the bodies of children who might grow up to regret certain medical treatments.
SB 199 passed the House with 76 of the 82 Republicans voting for it. Rep. Carol Dalby (R-Texarkana) voted present and Rep. Jeff Wardlaw (R-Hermitage) joined 16 of the 18 House Democrats in voting no. Four Republicans and two Democrats did not vote.
The bill is the latest of several legislative attacks on transgender Arkansans, House Minority Leader Tippi McCullough (D-Little Rock) told the chamber.
“You might not understand what it means to be gay or trans or a member of the LGBTQ community,” McCullough said. “I get that, but I’m standing here as the only member of that community in the entire General Assembly, a caucus of one, telling you the message this bill sends us. It denies trans kids the most affirming care they may ever receive in their lives, and that’s cruel.”
"I certainly won’t pretend to be an expert on what the best medical treatment is for trans kids, but I know for certain that I’d rather they live through the session to have a chance to find out for themselves."Rep. Ashley Hudson (D-Little Rock)
Committee and court testimony
The House Judiciary Committee approved the bill with a voice vote Tuesday following more than two hours of testimony. McCullough was in the minority that voted against the bill.
“It tells these children to leave Arkansas if they want to get the care they need to live, and it tells the parents of these kids that their love and innate desire to protect them doesn’t matter,” McCullough told the House.
Three parents of transgender minors, including Lizz Garbett of Little Rock, were among the 15 people to speak against the bill before the committee. Garbett’s 16-year-old son, Simon, was the only transgender minor to testify.
Simon and his mother both said receiving testosterone therapy has changed his life for the better.
“Passing this bill will guarantee that my future will be jeopardized,” Simon said. “Losing access to this health care will mean my blood will be on your hands.”
The Garbetts’ statements were similar to those from the families of four transgender minors who are challenging the Save Adolescents From Experimentation (SAFE) Act of 2021 in federal court. The law banned gender-affirming hormones, puberty blockers and surgeries for transgender minors.
U.S. District Judge James Moody blocked enforcement of the SAFE Act in 2021 and oversaw last year’s trial, which was the first in the U.S. over such a ban. Moody has yet to issue a ruling on whether the law is constitutional.
The parents of all four minors testified that their children’s mental health vastly improved as a result of transitioning, and they said it would be an emotional and financial burden to travel to other states for gender-affirming care.
Dylan Brandt, the lead plaintiff and the only minor to testify, told the court that the hormone therapy he has received was life-changing.
Senate Bill 199 would allow private enforcement of the SAFE Act, Michael Cantrell, an assistant solicitor general with the Arkansas Attorney General’s Office, told the Senate Judiciary Committee on Feb. 13.
The committee approved the bill twice, and the Senate passed the bill along party lines Feb. 21.
Sanders plans to sign the bill, her spokeswoman Alexa Henning said.
“The Governor has said that she supports bills that protect our kids and will support legislation like this that does just that,” Henning said. “Only in the far-Left’s woke vision of America is it not appropriate to protect children.”
Jerry Cox, founder and president of the conservative Family Council, was one of two people to speak for Senate Bill 199 in committee Tuesday. He said he believed doctors often “rush to judgment” and need to take more time before administering gender-affirming medical care to transgender youth.
His statements echoed those of a former employee of the Washington University Transgender Center at St. Louis Children’s Hospital in February. Former case manager Jamie Reed alleged that the clinic’s medical professionals were not honest with transgender minors’ parents about the side effects of gender-affirming care and rushed those minors into medical treatment without taking their mental health into account.
Bentley told both the Judiciary Committee and the full House about Reed’s allegations.
But Reed’s claims were false, families whose transgender children were treated at the St. Louis clinic told the Missouri Independent. They said the clinic only administered gender-affirming medical treatments after much discussion with doctors and mental health professionals.
Social worker Courtney Frierson said this is the case in Arkansas as well, and she refuted Bentley’s statements that gender-affirming care is “irreversible.”
Puberty blockers are a reversible “placeholder” for transgender youth who have not yet experienced puberty, and hormone replacement therapy is partially reversible and not administered until after a transgender minor has reached puberty and received mental health care, Frierson said.
“Just like Mr. Cox said, it slows the rush to judgment,” she said.
Transgender children who come out before puberty should be allowed to socially transition and be acknowledged by their correct pronouns and name, Frierson said.
Being acknowledged as a boy allowed Simon to “blossom and thrive and smile again” after he had been “actively suicidal,” Garbett said. All this happened long before he received his first testosterone shot, which “was years in the making,” she said.
Both Garbetts said they were fully informed about the effects of hormone treatments before consenting to them.
Simon said he hopes to receive gender-affirming surgeries as an adult. He and other witnesses, including Frierson, said minors are not receiving or even being offered these surgeries in Arkansas.
The bill’s supporters have cited studies from Sweden, Finland and the United Kingdom that claim gender-affirming surgeries do not resolve transgender people’s mental health concerns. The text of the bill includes this information.
However, the studies are from decades ago and only pertain to transgender adults who have received surgeries, not minors who have received other forms of care in the recent past, witnesses against the bill pointed out Tuesday.
Rep. Nicole Clowney (D-Fayetteville) asked chief deputy attorney general Bob Brooks if any Arkansas doctors were consulted in the drafting of the bill.
“Not to my knowledge,” Brooks said.
Legal and safety concerns
One of the current criteria for medical malpractice liability is proof that a healthcare professional was aware of standards of care and did not meet them, Rep. Ashley Hudson (D-Little Rock) told the House, but SB 199 would remove this requirement specifically for doctors who provide gender-affirming care to transgender minors and put them at risk of litigation simply for providing this care at all.
This means the proposed law will lead to a chilling effect, both on doctors providing this care to this population and on medical malpractice insurance providers writing policies that cover certain medical procedures, Hudson said. She added that puberty blockers and hormones are sometimes prescribed to children who are not transgender and need them for other medical reasons.
Hudson said she is “still haunted” by doctors at Arkansas Children’s Hospital telling legislators during the 2021 session that transgender children were experiencing increased suicidal tendencies because of legislative decisions. Some witnesses against Senate Bill 199 and other bills that would affect transgender Arkansans have said the same thing this year.
“I certainly won’t pretend to be an expert on what the best medical treatment is for trans kids, but I know for certain that I’d rather they live through the session to have a chance to find out for themselves,” said Hudson, who also voted against the bill in Tuesday’s committee hearing.
Several of Tuesday’s witnesses reiterated that gender dysphoria creates a suicide risk, especially for children.
“Every day without gender-affirming care was spent in fear of what I would do to myself,” said Carter Kirby, a transgender 18-year-old.
Braelyn Smith said he did not transition until adulthood and retains “uncomfortable and melancholy” childhood memories. He said it hurts to look at photos of himself before transitioning.
“Getting timely care matters,” Smith said. “No one deserves to look back at their childhood the way that I do.”
Garbett said the rhetoric from supporters of Senate Bill 199 is “fearmongering” and “a scare tactic.”
“I’ve got five kids,” she said. “We don’t have a ‘trans agenda.’ … I drive my children all over the world, doing homework and activities. We’re not indoctrinating people. We’re just being regular people.”
Two other parents of transgender children, Michael Gallup and Marie Mainard O’Connell, spoke to the committee. Both are Christian pastors in Little Rock.
Gallup said he was initially confused about the concept of gender dysphoria but learned everything he could from doctors and members of the transgender community.
Gender-affirming health care has created “a marked difference” in his child’s well-being, Gallup said.
“They feel confidence and joy,” he said. “They are alive and thriving in ways I did not think possible just a few years prior.”
"Passing this bill will guarantee that my future will be jeopardized. Losing access to this health care will mean my blood will be on your hands."Simon Garbett, a 16-year-old transgender resident of Little Rock
O’Connell took issue with the bill’s defense for doctors to provide gender-affirming care to minors. The bill requires the minor patient to have “no other mental health concerns,” such as autism, depression, eating disorders or attention deficit hyperactivity disorder.
This would exclude O’Connell’s child from gender-affirming care, she said. She asked the sponsors at past committee meetings to remove the clause, to no avail.
Clowney asked O’Connell how transgender Arkansans react to the state’s legislation concerning them, and O’Connell said her child is struggling to choose where to attend college.
“Here in Arkansas it’s affordable, but in other states it’s safe,” O’Connell said.
School bathroom bill advances
O’Connell and her transgender 16-year-old, Kaymo, both testified against House Bill 1156 before the Senate Education Committee on Wednesday morning.
The bill would restrict bathroom use in Arkansas public and charter schools based on students’ gender assigned at birth. It would apply to multiple-occupancy restrooms and locker rooms, as well as rooms for students on overnight trips.
The bill passed on a voice vote with dissent from the committee’s two Democrats, Senate Minority Leader Greg Leding (D-Fayetteville) and Senate Minority Whip Linda Chesterfield (D-Little Rock).
The committee heard the bill for the second time after it was pulled from the Senate floor Feb. 16 for amendments. It will be heard again on the Senate floor and return to the House if it passes.
House Bill 1156 requires schools to “provide a reasonable accommodation” to anyone “unwilling or unable to use a multiple occupancy restroom or changing area” based on their biological sex, such as a single-occupancy gender-neutral restroom.
Bentley said single-occupancy restrooms are reasonable and safe. However, not all schools have enough of these restrooms or the money to build new ones, said Sarah Everett, policy director with the American Civil Liberties Union of Arkansas.
Everett made the same statement to the committee Feb. 15 before the bill was amended. The bill passed that day with the same vote.
The Little Rock high school that Kaymo attends only has one single-occupancy restroom, and it is only accessible with permission from the school nurse.
“There are too many trans, gender-nonconforming and intersex people at my school to use that one bathroom,” Kaymo said.
Kaymo testified to being bullied and harassed for being transgender, including in school bathrooms.
“I’ve already had another minor try to look down my shirt because he found out I was trans,” Kaymo said. “We don’t need to out more people so that people who want to hurt others can see them.”