Full Eighth Circuit holds low-key arguments over Arkansas's minor trans care ban

Half of the 10 judges hearing the case asked no questions on Thursday. The medical care of transgender minors in Arkansas is on the line.

On Thursday, a federal appeals court that only has one Democratic appointee heard arguments over the constitutionality of Arkansas’s anti-transgender ban on gender-affirming medical care for minors.

With only half of the 10 judges asking questions, it’s not clear how the court will rule, but the challengers’ chance of success is slim given the court’s makeup and what we know about how the court has handled the case prior to Thursday.

The arguments were the first time a full federal appeals court has considered the constitutionality of one of the many state laws blocking gender-affirming medical care for minors.

The challengers are arguing that the bans violate equal protection guarantees by discriminating impermissibly on the basis of sex and transgender status and violate the due process liberty rights of parents to control the upbringing of their children. The state argues that the law does not discriminate on the basis of sex or transgender status at all, that if it does it does so permissibly, and that the Supreme Court’s parental rights cases do not apply here.

The arguments are, essentially, the same as they have been for the past two years — in state after state where these bans have passed and been challenged. This is, in fact, the second time the Eighth Circuit heard arguments over the ban.

A three-judge panel of the appeals court had, in August 2022, sided with the challengers — upholding a district court’s preliminary injunction against enforcement of the Arkansas law and keeping the ban blocked after agreeing that the law would likely face heightened scrutiny because of the discrimination claims. After the district court held a trial and issued a permanent injunction against the law, the Eighth Circuit later decided, in October 2023, to hear an appeal of that ruling sitting en banc, or by the full court.

That decision — from a majority of the court — signaled an interest by the court in potentially revisiting the earlier panel’s decision, as en banc review would be the only way for the court not to be bound by the earlier panel’s decision.

On Thursday, 10 judges of the 11-judge court heard that appeal. Judge Bobby Shepherd has recused himself from the case; his son is an Arkansas legislator.

Only two of the 10 judges who heard the appeal on Thursday were a part of the 2022 panel: Judge Jane Kelly — an Obama appointee, the sole Democratic appointee, and the only woman on the court — and Judge James Loken, the court’s one George H.W. Bush appointee and the oldest member of the court. (A district court judge sat on the earlier panel, by designation, so that judge is not involved in this appeal.)

Five of the 10 judges who heard the appeal — including all four Trump appointees — had previously wanted the full court to review the three-judge panel’s decision in 2022. While that November 2022 vote isn’t a sure sign of how they would rule in this appeal, their statement then — authored by one of the Trump appointees, Judge David Stras — certainly expressed skepticism of the panel’s opinion. The others joining Stras’s statement were Judge Raymond Gruender, a George W. Bush appointee, and Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes, the remaining Trump appointees.

If that skepticism remained — which, per Stras and Grasz’s questions on Thursday, it has for them — and those five judges vote against the challengers, then only one other judge would need to join them in order to reverse the district court’s decision, allowing the ban to go into effect.

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The arguments themselves were an understated affair, with two of the three key votes, Judges Lavenski Smith and Duane Benton (both George W. Bush appointees), asking no questions. Gruender, Erickson, and Kobes also asked no questions Thursday.

(Thanks much to Equality Case Files’s Kathleen Perrin, who attended arguments Thursday, for providing a helpful identification key for the judges’ questions.)

Arkansas Deputy Solicitor General Dylan Jacobs went first on Thursday.

Kelly, for her part, challenged Jacobs’s argument for the state repeatedly, questioning the state’s equal protection arguments on several fronts and whether the state, in its appeal, is treating the district court’s decision appropriately.

Loken, at the end of Jacobs’s argument, asked — rather abruptly — whether the court could rule on whether the statute would even pass muster under rational basis (as opposed to the heightened scrutiny applied by the district court and prior panel decision). When Jacobs said he was confused by the question and apparently wasn’t answering clearly or quickly enough, Loken shut him down.

Earlier in Jacobs’s argument, though, what could end up being a key question came from the final judge on the panel, Chief Judge Steven Colloton. A George W. Bush appointee, Colloton asked Jacobs whether there was any “limiting principle” to his argument, in terms of what medical care legislatures could ban for minors if the court sided with the state in this case.

Jacobs, essentially, said no, telling Colloton that “so long as there is a rational basis” for the legislature’s action, the Constitution doesn’t block them from doing so.

When Chase Strangio, from the ACLU, argued for the challengers, Stras focused initially on the law’s age limits, suggesting that “the age cutoff might be significant” to the consideration of the law.

In response, Strangio noted that none of the treatments at issue happen before the onset of puberty, at which point, the district court had found, it is rare for a person’s view of their gender identity to change.

Later, when discussing the state’s claimed concern with the risks of such treatment, Strangio highlighted the fact that the district court had specifically found that “the risks of this treatment are not categorically different than the risks of many other forms of pediatric medicine that parents routinely consent to for their children.”

Strangio added that there are also different risks for different gender-affirming medical care covered by the act and yet they are all treated the same — being banned for minors completely — with their only commonality being an aim to block transgender minors from getting needed medical care.

The lawyer arguing for the United States, Barbara Schwabauer, an appellate attorney in the Civil Rights Division of the Justice Department, was asked no questions in her brief argument time supporting the equal protection challenge to the ban.

The court gave no timeline for a decision.

While that is normal, the decision timing is relevant here because the U.S. Supreme Court has thus far repeatedly put off consideration of three petitions — including from the United States — asking the high court to review the U.S. Court of Appeals for the Sixth Circuit’s decision from September 2023 upholding the constitutionality of Tennessee and Kentucky’s similar bans.

The Supreme Court has given no reason for its inaction, but it is possible that justices could be waiting to see what happens in other circuits, including the Eighth Circuit, before acting on the Sixth Circuit petitions.