A judge blocked a transgender health care law in Arkansas. How does NC’s bill compare?
A bill restricting access to certain medical procedures for transgender minors is on its way back to state lawmakers after Democratic Gov. Roy Cooper vetoed it Wednesday. But some predict the bill may end up somewhere else: court.
Opponents of the bill — lawmakers and members of the public — have repeatedly voiced concern along its legislative journey that litigation against the state may be an inevitable reality. The basis for their argument is connected to one recent case in which a federal judge struck down an Arkansas law restricting gender-affirming care for minors last month.
Two years ago, Arkansas became the first state to place restrictions on gender-affirming care for transgender minors. The law never had a chance to go into effect, though, as it was temporarily blocked by a federal judge before being permanently struck down June 20.
U.S. District Judge James Moody Jr. highlighted violations of the First and Fourteenth Amendments as among the reasons for the law’s unconstitutionality. The act discriminated against transgender people and broke the equal protection clause, the judge said, as it specifically prohibited “medical care that only transgender people choose to undergo.”
“The Court finds the State has failed to prove that its interests in the safety of Arkansas adolescents from gender transition procedures or the medical community’s ethical decline are compelling, genuine, or even rational,” Moody wrote in his ruling.
Another ruling against gender-affirming care restrictions for minors came out of Florida a day later, with a federal judge knocking down a ban on Medicaid coverage for certain gender transition procedures. That ruling added to warnings of litigation from North Carolina Democrats like Sen. Lisa Grafstein, who said during a committee hearing that the bill here could lead to similar conflicts with Medicaid law as in Florida.
House Bill 808 would shut down access to gender-affirming care such as gender transition surgeries or puberty blockers for transgender minors. It also would bar public funds or governmental insurance policies from being used for certain gender-affirming care on minors.
While there is likely to be litigation over HB 808, Tami Fitzgerald, NC Values Coalition executive director, said North Carolina’s bill has some key differences from Arkansas’, such as a longer statute of limitations, a continuing care clause for transgender minors already medically transitioning, and no provisions barring physicians from referring patients elsewhere for gender-affirming care.
As for the finding that the Arkansas law violated the Fourteenth Amendment’s equal protection clause, Fitzgerald said the judge was “just wrong.”
“North Carolina’s bill bans a procedure, it does not treat individuals that are similarly situated differently,” she said.
But similarities between HB 808 and Arkansas’ Act 626 — could pose trouble for Republican lawmakers determined to see the legislation take effect. We compared key provisions of the two bills.
Restrictions on access to gender-affirming care for transgender minors
Comparison: Both laws prohibit medical professionals from performing certain gender transition procedures on minors, with exceptions.
Arkansas’ law bans “gender transition procedures” for minors, which includes “any medical or surgical services” as well as “prescribed drugs.” North Carolina’s bill distinguishes that a “surgical gender transition procedure” would be outlawed, in addition to “puberty-blocking drugs or cross-sex hormones” for minors.
One key difference between the two states is an additional ban on Arkansas physicians referring patients to other health care providers for gender-affirming care. This provision was referenced in Moody’s ruling against the law for violating the First Amendment. HB 808 does not have a similar clause.
In both states’ legislation, exceptions include:
Medical services for minors with sex development disorders
Treatment of infection or injuries caused by previous gender transition procedures
Any instance in which a physical illness may lead to the death or permanent injury of the minor
In North Carolina, exceptions would also include:
Breast reduction procedures for girls with physical disorders
Surgical procedures that are medically essential to treat a physiological condition
North Carolina’s bill, unlike Arkansas’, has a clause to address continuing medical care of transgender minors. If gender-affirming care began before Aug. 1, a doctor is permitted to complete the treatment with parental consent.
Barring public funds and health care facilities for gender transition procedures
Comparison: Both laws explicitly outline that no state funds can be used for certain gender transition procedures, whether directly or indirectly.
The Arkansas law specifies that public funds cannot be “used, granted, paid or distributed to any entity” that performs gender transition surgeries. North Carolina uses similar language, but specifies that it cannot be used for the “furtherance of surgical gender transition procedures or to provide puberty-blocking drugs or cross-sex hormones to a minor.”
In Arkansas, the law bars health care facilities owned by a state, county or local government or medical professionals who work for those organizations from providing those procedures to minors.
Another bill sitting in the North Carolina Senate, Senate Bill 631, denotes a long list of public health care facilities that fall under a gender-affirming care for minors ban, including:
The UNC Health Care System
Any medical entities that have an affiliate agreement with UNC or UNC Health
Facilities that belong to the Division of State Operated Healthcare Facilities in the N.C. Department of Health and Human Services
Any local health departments in North Carolina
SB 631 is not expected to move forward, as the more all-encompassing HB 808 has provisions in it to limit government involvement in gender transition procedures for minors.
The impact on government-supplied insurance is addressed by Act 626 and HB 808. Arkansas’ Medicaid program was banned from providing coverage for minors’ gender transition procedures. North Carolina’s bill seeks to bar the use of “any governmental health plan or government-offered insurance policy” from offering certain gender-affirming care, which could seemingly affect Medicaid.
HB 808 distinguishes that the insurance limitations do not apply to the state health plan for teachers or state employees.
Enforcement of transgender health care laws
Comparison: The laws have similar penalties that doctors could face as part of lawsuits, but North Carolina would have more severe disciplinary penalties for doctors.
Any medical professional who provides outlawed gender transition procedures on minors in North Carolina would have their medical license revoked, according to HB 808. In Arkansas, however, violating the law makes a physician “subject to discipline by the appropriate licensing entity or disciplinary review board.”
A legal course of action for people looking to sue medical professionals for providing gender transition procedures is also outlined in Act 626 and HB 808. If a person asserts an “actual or threatened violation” of the bill, a physician can be sued, according to Act 626. North Carolina’s HB 808 allows a medical professional to be liable to a minor for “any physical, psychological, emotional, or physiological harms” due to their treatment.
Arkansas’ and North Carolina’s bills indicate what doctors can be sued for in a civil suit, such as compensatory damages, attorneys’ fees, injunctive relief, declaratory relief or any other “appropriate relief.” North Carolina’s HB 808 also includes punitive damages.
The main difference in civil lawsuits under the bills is the statute of limitations in which a minor can sue a medical professional. In Arkansas, a minor has up to 20 years after turning 18 to sue. But in North Carolina, that time limit to sue is up to 25 years after the minor turns 18.
Impacts on insurance coverage
Comparison: Arkansas outlines tighter restrictions on insurance coverage.
Unlike North Carolina’s bill, the Arkansas act placed a blanket ban on insurance policies within the state being used for gender transition treatments for minors. At the same time, it clarified that insurance policies are “not required to provide coverage for gender transition procedures” in the state.
North Carolina’s insurance restrictions are limited to governmental health plans.
