State Affairs: AR HB 1570 Update | LBGTQIA Health Care

April 15, 2021

By Dominique Marsalek

Biden Administration issued an Executive Order on January 20, 2021, reaffirming the United States Supreme Court’s decisive conclusion that Title VII’s prohibition on discrimination 'because of sex' covers discrimination based on both gender identity and sexual orientation in Bostock v. Clayton County, Georgia. Notably, Supreme Court Justice Neil Gorsuch wrote for the majority, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

The standing Executive Order directs the head of each agency to "review all existing orders, regulations, guidance documents, policies, programs, or other agency actions" that "were promulgated or are administered by the agency under Title VII or any other statute or regulation that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations" and "are or may be inconsistent with the policy set forth in ... this order."

On account of a record number of proposed state bills targeting the LBGTQIA community this year, particularly focused on trans healthcare and education, the U.S. Department of Justice's Civil Rights Division released a memorandum on March 26. The memo further instructs federal agencies that Title IX of the Education Amendments of 1972, the federal civil rights law that bars discrimination based on sex in schools and education programs that receive federal funds, applies to LGBTQ youth.

On Tuesday, April 6, 2021, Arkansas became the first state in United States history to ban gender-affirming health care for minors. Yet, there are more than a dozen proposed bills in state legislatures intended to enact the same changes pending this legislative session. Casting the bill as an example of extreme government overreach, Arkansas HB 1570, was originally vetoed by Governor Hutchinson on April 5, prior to a legislative override. In this regard and in related matters concerning the healthcare profession, Governor Hutchinson is correct.

AR HB 1570 is the most extreme anti-trans care bill to successfully pass-through state legislatures in our nation’s history. The bill, which is set to go into effect in July 2021, prohibits physicians from providing gender-affirming treatment for youth under 18 in the state of Arkansas. The legislation defines gender affirming to include restricting access to puberty-blockers and banning cross-hormone therapy. HB 1570 does provide an exception for certain intersex people and those with difficulties resulting from previous gender-affirming treatments.

While this legislation sets a disturbing precedent for the health care industry, federal actions taken by the Biden Administration and SCOTUS all but ensure this new law will be overturned by litigation. The American Civil Liberties Union has already released several public statements declaring their intention to pursue aggressive litigation targeting the Arkansas bill and other similar proposals. The American Counseling Association supports state branches in their efforts to uphold LBGTQIA rights and the integrity of the counseling profession within their communities. ACA will continue to monitor pending legislation and litigation for our members. Please continue to follow and subscribe here for updates and recent developments.