Department of Justice Says Anti-Trans Legislation in Arkansas and West Virginia Is Unconstitutional

The Department of Justice filed statements of interest in two lawsuits seeking to overturn new anti-trans laws in West Virginia and Arkansas on Thursday, calling the pieces of legislation unconstitutional. The DOJ said that both laws violate the equal protection clause of the 14th amendment, and the West Virginia law preventing trans athletes from competing in women’s sports is also in violation of Title IX. This development comes during a year where a record number of anti-trans bills have been introduced in state and local legislatures across the country attempting to limit and control the lives of trans youth.

West Virginia is one of the many states that has enacted a ban on trans athletes competing in sports, specifically prohibiting trans athletes from competing in girl’s and women’s sports at the middle school, high school, and college levels. In May, the ACLU and Lambda Legal filed a lawsuit challenging the ban on behalf of an 11-year-old trans girl who had wanted to compete on the cross-country team at her middle school. “The United States has a significant interest in ensuring that all students, including students who are transgender, can participate in an educational environment free of unlawful discrimination,” the DOJ wrote in its statement. “This includes ensuring that recipients offer equal athletic opportunities to students regardless of their sex.”

In April, Arkansas became the first state in the U.S. to pass legislation denying trans children access to basic gender-affirming medical care after the Republican-dominated legislature overrode the governor’s veto. The bill prohibits doctors from providing gender-confirming hormone treatment, puberty blockers, or surgery to anyone under 18 years old, and also bans them from referring their trans patients to other providers who can provide affirming care. Last month, the ACLU filed a lawsuit challenging the Arkansas legislation on behalf of four trans youth and their families as well as two doctors, arguing the prohibition violates the constitutional rights of trans youth in the state.

The DOJ statement on the Arkansas legislation says that under the 2010 Affordable Care Act, individuals have the right to non-discriminatory access to health care. “Rather than rely on the judgment of medical professionals and evidence-based treatment guidelines, Arkansas has inserted itself within one of the most confidential and personal of relationships: the physician-patient relationship,” wrote the DOJ.