In the current legislative session, the first bill about transgender kids Republican Rep. Mary Bentley tried to pass didn't live a day past the committee.
She pulled it after hearing testimony from Arkansas Assistant Attorney General Justin Brasher. He said, Rep. Bentley, we agree with you, but if the state gets sued, the AG'S office isn't going to bat over this one.
“We have facial constitutional concerns with this bill,” he said.
The problem with the initial draft of the bill, also called the Vulnerable Youth Protection Act, is that it was too broad. Draft one could have encompassed speech protected in the Constitution: the right to cut your hair the way you want to, the right to wear what you want, the right to be called the name of your choice.
Under the bill, anyone who affirmed a child's gender, cut their hair short or called them by a new name, could be sued by anyone else for up to 15 years.
Brasher said: “We're not going to defend a piece of legislation we can’t make a good argument in court for.”
So, Bentley came back in the last days of the session with a new version of the Vulnerable Youth Protection Act. This one more defensible, more watered down.
In round two, Bentley gave a speech advocating for the bill almost identical to her speech on the first draft. Her argument was this: she's a nurse, and she can see a tidal wave of change in the way we discuss children with “gender confusion.” This is a possible “crisis.” Doctors, she says, need to go back to an older approach.
“If you'll do no harm,” she said. “If you say, we understand the feelings you're having, but they're not real, and let me understand why you are having those feelings.”
What does this new bill do? It expands a law passed two years ago allowing someone to sue a doctor who provides gender affirming care.
The 2023 bill limits surgeries, something not performed on children in Arkansas anyway. Meanwhile, the legality of puberty blockers and cross sex hormones is tied up in the courts.
All the evidence says, in Arkansas, very few kids have ever taken these drugs.
Several years ago, a lawsuit over gender affirming care revealed only about 300 Arkansas kids in history have taken cross sex hormones or puberty blockers. And these drugs aren't new; they were available to patients in the 70s and 80s.
When they were available, these drugs were so hard to get, doctors at Arkansas Children's Hospital’s gender clinic said in sworn testimony that the "regret rate" was zero.
Bentley didn't respond to Little Rock Public Radio's request for an interview. But told a committee she’s “disheartened” by the current state of gender care.
“Double mastectomies are being done on young girls,” she said.
Democratic Rep. Ashley Hudson pushed back on this claim.
“I know there is not a single doctor in the state now or in history who was doing elective surgeries for double mastectomies or other gender related surgeries on minors,” Hudson said.
“I personally know of 20 year old girls that have double mastectomies done because of this, and twenty year old's are just barley over 18,” Bentley said.
Another argument Bentley makes is that minors have limited access to privileges normally reserved for adults. She made this argument more than once.
“We don't allow minors to get a tattoo,” she said. “We don't allow minors to get a lot of things, because they are minors they are still developing.”
This isn't quite true; in Arkansas, you can get a tattoo starting at age 16 even without parental permission.
Bentley acknowledges that there are children struggling with gender incongruence. But instead of affirmation, she wants to promote self-acceptance. She wants kids with gender dysphoria to look at their biological sex and come to peace with it.
Jack Turban, a leading psychologist in the field of transgender children says this sounds a lot like conversion therapy.
“On the other end of the spectrum there are these talk therapies where they try to convince the person that their trans identity is a result of something else,” he said. “Like your transness is a result of your trauma or your transness is the result of internalized homophobia.”
Conversion therapy is now widely considered pseudoscientific, and research, including studies Turban has conducted, correlates the practice with high rates of suicide.
When prescribing hormones and blockers, Turban follows the Endocrine Society’s guidelines. You can't get puberty blockers or hormones without extensive therapy ruling out other issues the patient could be having. You don't need and you can't get these drugs in early youth, the requirements Arkansas was following when these drugs were available to kids under 18.
He says he has never seen a child with gender dysphoria come to accept their biological gender, and he specializes in transgender kids.
The closest was a patient who decided to stop social transitioning after they were bullied.
“You know the other thing you need to consider with these de transition experiences is what is really going on for the person,” he said. “Did they really wake up and say ‘oh my initial thoughts about myself being trans were wrong or are they facing so much harassment and stigma?”
And the data he has says when you control for social stigma, the studies showing negative effects from social transitioning flip the other direction.
This ties into one of the big arguments Bentley made: that the stigma from gender transitioning is more harmful than the transition itself.
Bentley brought along therapist Rebecca Smith to the legislature who made this point. Smith specializes in children, and sees parents as the most important figure in a child's world.
“Because no one is going to love our kids like we do,” she said. “As a mom or a dad we only want to be able to promote what's going on in the family and what the parents, and promote whatever is going on in the family and what the parents values and beliefs are.”
She said kids who transition may not keep their relationship with their parents. She's seen this in her day job, families scattered when their child's gender identity conflicts with the beliefs of their family.
“Research consistently shows that those who experience alienation from a parent or family suffer significant psychological distress,” she said in the legislature. “Including an increase risk of depression suicidal ideation and confusion about their identity.”
She says many of her patients have confusion about their gender, but they rarely stick to it. This is her talking to Little Rock Public Radio about a facility where she works:
“We had a young lady that was at one of our events,” she said. “And she's down on the ground. We have a service animal. This is one young lady who wanted to have preferred pronouns. So we really just honored her preferred name and whenever we saw her later she had shifted back to being female.”
She acknowledged to the legislature that her approach to gender dysphoria is unique. It is not described in most medical textbooks, where affirmation is still considered best practices.
And experts like Jack Turban say lawmakers should work to change the culture and not the medicine.
If this new law passes, you wouldn't be able to sue someone willy-nilly. A person would have to demonstrate that a child experienced: “irreputable harm.”
But that still could have many interpretations.
Democratic Rep. Andrew Collins said, when he voted against the bill, that it could “chill access”
“Whether you favor this type of thing or not,” he said. “You're just not going to have people willing to take on a client and they wont get any healthcare weather its helpful or not.”
So, what if this made doctors scared, scared to speak or offer treatment, scared to call patients what they want to be called?
Turban says often what these bills do is create a negative vibe, a bad feeling in the heart of the people they target.
“A lot of the patients I've taken care of, they’re horrified,” he said. “They are hearing politicians say that they are mentally ill and that they are dangerous. If you hear negative messages about your demographic all the time you start to internalize them where you start to say maybe I am a bad person, maybe I am dangerous, maybe I am mentally ill.”
The new version of the Vulnerable Youth Protection Act is moving through the legislature still.
