United States Court of Appeals

For the Eighth Circuit 

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No. 21-2875

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Dylan Brandt, by and through his mother Joanna Brandt; Joanna Brandt; Sabrina 

Jennen, by and through her parents Lacey and Aaron Jennen; Lacey Jennen; Aaron 

Jennen; Brooke Dennis, by and through her parents Amanda and Shayne Dennis; 

Amanda Dennis; Shayne Dennis; Parker Saxton, by and through his father Donnie 

Saxton; Donnie Saxton; Michele Hutchison, on behalf of herself and parents; 

Kathryn Stambough, on behalf of herself and her parents

 Plaintiffs - Appellees

v.

Leslie Rutledge, in her official capacity as the Arkansas Attorney General; Amy E. 

Embry, in her official capacity as the Executive Director of the Arkansas State 

Medical Board; Sylvia D. Simon, in official capacity as member of the Arkansas 

State Medical Board; Robert Breving, Jr., in official capacity as member of the 

Arkansas State Medical Board; John H. Scribner, in official capacity as member of 

the Arkansas State Medical Board; Elizabeth Anderson, in official capacity as 

member of the Arkansas State Medical Board; Rhys L. Branman, in official 

capacity as member of the Arkansas State Medical Board; Edward Gardner, 

"Ward"; in official capacity as member of the Arkansas State Medical Board; 

Rodney Griffin, in official capacity as member of the Arkansas State Medical 

Board; Betty Guhman, in official capacity as member of the Arkansas State 

Medical Board; Brian T. Hyatt, in official capacity as member of the Arkansas 

State Medical Board; Timothy C. Paden, in official capacity as member of the 

Arkansas State Medical Board; Don R. Philips, in official capacity as member of 

the Arkansas State Medical Board; William L. Rutledge, in official capacity as 

member of the Arkansas State Medical Board; David L. Staggs, in official capacity 

as member of the Arkansas State Medical Board; Veryl D. Hodges, in official 

capacity as member of the Arkansas State Medical Board

 Defendants - Appellants
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Keira Bell; Laura Becker; Sinead Watson; Kathy Grace Duncan; Laura Reynolds; 

Carol Freitas; Yaacov Sheinfeld; Jeanne Crowley; Ted Hudacko; Lauren W.; 

Martha S.; Kellie C.; Kristine W.; Bri Miller; Helen S.; Barbara F.; State of 

Alabama; State of Alaska; State of Arizona; State of Georgia; State of Idaho; State 

of Indiana; State of Kansas; State of Kentucky; State of Louisiana; State of 

Mississippi; State of Missouri; State of Montana; State of Nebraska; State of South 

Carolina; State of South Dakota; State of Tennessee; State of Texas; State of Utah; 

State of West Virginia; Family Research Council; Women's Liberation Front; 

Quentin L. Van Meter, MD; Michael K. Laidlaw, MD; Andre Van Mol, MD; 

Jeffrey E. Hansen, Ph. D.

 Amici on Behalf of Appellant(s)

Lambda Legal Defense and Education Fund; National Women's Law Center; 

Equality South Dakota; Family Equality; Freedom for All Americans; Gender 

Justice; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; 

Intransitive (Mabelvale, Arkansas); Legal Voice; Lucie's Place (Little Rock, 

Arkansas); National Center for Lesbian Rights; National Center for Transgender 

Equality; National LGBTQ Task Force; One Iowa; OutNebraska; PFLAG; 

SisterReach; South Dakota Transformation Project; Southwest Women's Law 

Center; Transformation Project Advocacy Network; Women's Law Project; 

American Academy of Pediatrics; Academic Pediatric Association; American 

Academy of Child and Adolescent Psychiatry; American Association of Physicians 

for Human Rights, Inc.; American College of Osteopathic Pediatricians; American 

Medical Association; American Pediatric Society; American Psychiatric 

Association; Arkansas Chapter of the American Academy of Pediatrics; Arkansas 

Council on Child and Adolescent Psychiatry; Arkansas Medical Society; Arkansas 

Psychiatric Society; Association of Medical School Pediatric Department Chairs; 

Endocrine Society; National Association of Pediatric Nurse Practitioners; Pediatric 

Endocrine Society; Society for Adolescent Health and Medicine; Society for 

Pediatric Research; Society of Pediatric Nurses; Societies for Pediatric Urology; 

World Professional Association for Transgender Health; Biomedical Ethics and 

Public Health Scholars; United States; LiveRamp Holdings, Inc.; Acxiom LLC; 

Kinesso, LLC; The Walton Family Foundation, Inc.; Arkansas State Chamber of 

Commerce; Northwest Arkansas Council; Asana, Inc.; Xperi Holding Corp.; 

Interpublic Group of Companies, Inc.; Winthrop Rockefeller Foundation; 

Acoustic, L.P.; CYCLQ LLC, doing business as Blue Star Business Services; 

Institute for Justice; State of California; State of Colorado; State of Connecticut; 
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State of Delaware; State of Hawaii; State of Illinois; State of Maine; State of 

Maryland; State of Massachusetts; State of Michigan; State of Minnesota; State of 

Nevada; State of New Jersey; State of New Mexico; State of New York; State of 

North Carolina; State of Oregon; State of Rhode Island; State of Vermont; State of 

Washington; District of Columbia; Stonewall UK; Swedish Federation for Lesbian, 

Gay, Bisexual, Transgender, Queer and Intersex Rights; Australian Professional 

Association for Trans Health; Professional Association for Transgender Health 

Aotearoa New Zealand; LGBT+ Denmark; Bundesverband Trans e.V.; Federacion 

Estatal de Lesbianas, Gais, Trans, Bisexuales, Intersexuales y mas; Fundacion 

Colectivo Hombres XX, AC; Norwegian Organization for Sexual and Gender 

Diversity; The Trevor Project, Inc.; Elliot Page and 57 Other Individuals; Families 

with Transgender Children

 Amici on Behalf of Appellee(s)

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Appeal from United States District Court 

for the Eastern District of Arkansas - Central

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Submitted: June 15, 2022

Filed: August 25, 2022

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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.1

 

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KELLY, Circuit Judge.

Arkansas state officials (collectively, Arkansas or the State) appeal the order 

of the district court2 preliminarily enjoining Act 626 of the 93rd General Assembly 

1

The Honorable Katherine M. Menendez, United States District Judge for the 

District of Minnesota, sitting by designation.

2

The Honorable James M. Moody, Jr., United States District Judge for the 

Eastern District of Arkansas.
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of Arkansas. This court has jurisdiction under 28 U.S.C. § 1292(a)(1) to review an 

interlocutory order granting a preliminary injunction, and we affirm.

I. Background

On April 6, 2021, the Arkansas state legislature overrode the governor’s veto 

and enacted Act 626. The Act prohibits a healthcare professional from “provid[ing]

gender transition procedures to any individual under eighteen (18) years of age” or 

“refer[ring] any individual under eighteen (18) years of age to any healthcare 

professional for gender transition procedures.” Ark. Code Ann. § 20-9-1502(a), (b). 

“Gender transition procedures” is defined to include “any medical or surgical 

service, including without limitation physician’s services, inpatient and outpatient 

hospital services, or prescribed drugs” that are intended to “[a]lter or remove 

physical or anatomical characteristics or features that are typical for the individual’s 

biological sex” or “[i]nstill or create physiological or anatomical characteristics that 

resemble a sex different from the individual’s biological sex.” Id. § 20-9-

1501(6)(A). Specifically identified services include “puberty-blocking drugs, crosssex hormones, or other mechanisms to promote the development of feminizing or 

masculinizing features in the opposite biological sex, or genital or nongenital gender 

reassignment surgery performed for the purpose of assisting an individual with a 

gender transition.” Id. “Gender transition procedures” specifically does not include 

“[s]ervices to persons born with a medically verifiable disorder of sex development.” 

Id. § 20-9-1501(6)(B). 

Act 626 was set to take effect on July 28, 2021. In May, Plaintiffs in this 

matter—transgender youth (Minor Plaintiffs), their parents (Parent Plaintiffs), and 

two healthcare professionals (Physician Plaintiffs)—filed a complaint seeking 

declaratory and injunctive relief. Plaintiffs allege that Act 626 violates the Equal 

Protection Clause of the Fourteenth Amendment because it discriminates against 

Minor Plaintiffs and Physician Plaintiffs’ minor patients on the basis of sex and 

transgender status. Parent Plaintiffs further allege the Act violates the Due Process 

Clause of the Fourteenth Amendment by limiting their fundamental right to seek and 
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follow medical advice for their children. Finally, Plaintiffs allege that, by banning 

referrals, Act 626 violates their First Amendment rights by limiting what Physician 

Plaintiffs can say and what Minor and Parent Plaintiffs can hear. 

In June, Plaintiffs moved for a preliminary injunction to stop Act 626 from 

going into effect. Arkansas moved to dismiss the complaint pursuant to Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). After a hearing on the motions, the 

district court denied the motion to dismiss and granted the motion for preliminary 

injunction, concluding that Plaintiffs had standing and showed a likelihood of 

success on the merits of each of their claims and a likelihood of irreparable harm. 

Arkansas appeals. 

II. Standing

As an initial matter, the State challenges Plaintiffs’ standing to seek an 

injunction of specific aspects of the Act. Constitutional standing requires that at 

least one plaintiff demonstrate they have suffered a concrete and particularized 

injury that is fairly traceable to the challenged action and is likely to be redressed by 

a court ruling in the plaintiff’s favor. See Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560–61 (1992). Arkansas argues that because no Minor Plaintiff has declared 

an intent to undergo gender-reassignment surgery as a minor, no Plaintiff has 

established standing to challenge the ban as to that type of gender transition 

procedure. The State also argues that Plaintiffs lack standing to challenge the section 

of the statute that provides for private enforcement because no defendant is involved 

in enforcement of the Act by private right of action. But Arkansas does not contest 

that Plaintiffs have met their burden under Lujan to challenge other parts of the Act, 

and this court declines the State’s invitation to modify well-established 

constitutional standing principles to require that a plaintiff demonstrate an injury
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traceable to every possible application of the challenged statute in order to satisfy 

the constitutional standing requirement.3

III. Preliminary Injunction

A. Legal Standard

“In reviewing the issuance of a preliminary injunction, we consider the threat 

of irreparable harm to the movant, the likelihood that the movant will succeed on the 

merits, the balance between the harm to the movant and injury that an injunction 

would inflict on other parties, and the public interest.” Brakebill v. Jaeger, 932 F.3d 

671, 676 (8th Cir. 2019) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 

113 (8th Cir. 1981) (en banc)). A party challenging a state statute must show that 

she is likely to prevail on the merits. See Planned Parenthood Minn., N.D., S.D. v. 

Rounds, 530 F.3d 724, 730 (8th Cir. 2008). “The plaintiff[s] need only establish a 

likelihood of succeeding on the merits of any one of [their] claims.” 

Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs, 826 F.3d 1030, 

1040 (8th Cir. 2016) (quotation omitted). 

We review the decision to grant a preliminary injunction for abuse of 

discretion. See Rodgers v. Bryant, 942 F.3d 451, 456 (8th Cir. 2019). “An abuse of 

discretion occurs where the district court rests its conclusion on clearly erroneous 

factual findings or erroneous legal conclusions.” Rounds, 530 F.3d at 733 (quotation 

omitted). “If a factual finding is supported by substantial evidence on the record, it 

is not clearly erroneous.” Dixon v. Crete Med. Clinic, P.C., 498 F.3d 837, 847 (8th 

Cir. 2007). “Clear error exists when despite evidence supporting the finding, the 

evidence as a whole leaves us with a definite and firm conviction that the finding is 

a mistake.” Richland/Wilkin, 826 F.3d at 1036 (quotation omitted).

3

The State also argues that Physician Plaintiffs lack third-party standing to sue 

on behalf of their minor patients. But since there is at least one plaintiff with 

standing to bring each of Plaintiffs’ claims, we need not address this argument at this 

juncture.
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B. Likelihood of Success on the Merits

To evaluate Plaintiffs’ likelihood of success on the merits of their equal 

protection claim, we must first determine the appropriate level of scrutiny. Cf. 

Libertarian Party of Ark. v. Thurston, 962 F.3d 390, 399 (8th Cir. 2020)

(determining as a threshold matter what level of scrutiny applied to the challenged

statute governing ballot access). Act 626 prohibits “gender transition procedures,” 

which are defined as procedures or medications that are intended to change “the 

individual’s biological sex.” Ark. Code Ann. § 20-9-1501(6)(A). The statute 

defines “biological sex” as the person’s sex “at birth, without regard to an 

individual’s psychological, chosen, or subjective experience of gender.” Id. § 20-9-

1501(1). Thus, under the Act, medical procedures that are permitted for a minor of 

one sex are prohibited for a minor of another sex. A minor born as a male may be 

prescribed testosterone or have breast tissue surgically removed, for example, but a 

minor born as a female is not permitted to seek the same medical treatment. Because 

the minor’s sex at birth determines whether or not the minor can receive certain types 

of medical care under the law, Act 626 discriminates on the basis of sex. 

Arkansas’s characterization of the Act as creating a distinction on the basis of 

medical procedure rather than sex is unpersuasive. Arkansas argues that 

administering testosterone to a male should be considered a different procedure than 

administering it to a female because the “procedure allows a boy to develop 

normally” whereas for a girl it has the effect of “disrupting normal development.” 

But this conflates the classifications drawn by the law with the state’s justification 

for it. The biological sex of the minor patient is the basis on which the law 

distinguishes between those who may receive certain types of medical care and those 

who may not. The Act is therefore subject to heightened scrutiny. See Heckler v. 

Mathews, 465 U.S. 728, 744 (1984). Cf. Whitaker ex rel. Whitaker v. Kenosha 

Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017) (holding 

that where “the School District’s policy cannot be stated without referencing sex, as 

the School District decides which bathroom a student may use based upon the sex 

listed on the student’s birth certificate,” the policy “is inherently based upon a sex-
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classification and heightened review applies”) (abrogation on other grounds 

recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020)).4

Statutes that discriminate based on sex must be supported by an “exceedingly 

persuasive justification.” United States v. Virginia, 518 U.S. 515, 531 (1996). The 

government meets this burden if it can show that the statute is substantially related 

to a sufficiently important government interest. Id. at 533. Arkansas relies on its 

interest in protecting children from experimental medical treatment and regulating 

ethics in the medical profession to justify Act 626. 

The district court found that the Act prohibits medical treatment that conforms 

with “the recognized standard of care for adolescent gender dysphoria,” that such 

treatment “is supported by medical evidence that has been subject to rigorous study,” 

and that the purpose of the Act is “not to ban a treatment [but] to ban an outcome 

that the State deems undesirable.” The record at this stage provides substantial 

evidence to support these factual findings. 

Arkansas complains the district court failed to consider the medical evidence 

it submitted. Both parties provided scientific literature and declarations from 

medical experts and discussed the expert opinions in their briefs and at the motion 

hearing. The district court acknowledged at the hearing that “experts [on both] sides 

of this case don’t agree, and I get that. That’s part of the deal.” We find no clear 

error in the district court’s weighing of the competing evidence. See Med. Shoppe 

Int’l, Inc. v. S.B.S. Pill Dr., Inc., 336 F.3d 801, 803 (8th Cir. 2003) (“Our deferential 

review [of preliminary injunctions] arises from the district court’s institutional 

advantages in evaluating witness credibility and weighing evidence.”). 

4

The district court also concluded that heightened scrutiny was appropriate 

because the Act facially discriminates against transgender people, who constitute a 

quasi-suspect class. We discern no clear error in the district court’s factual findings

underlying this legal conclusion, but we need not rely on it to apply heightened 

scrutiny because the Act also discriminates on the basis of sex.
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Furthermore, substantial evidence in the record supports the district court’s 

factual findings, despite the contrary assertions of the State’s experts. For example, 

while Arkansas’s experts criticize the structure and scale of research on hormone 

therapies for adolescents with gender dysphoria, study design is only one factor 

among many that medical professionals properly consider when they review 

research and determine what course of action to recommend to a patient. And there 

is evidence in the record that these hormone treatments have been evaluated in the 

same manner as many other medical innovations. According to surveys of the 

research on hormone treatment for adolescents done by the British National Institute 

for Health & Care Excellence, several studies have shown statistically significant 

positive effects of hormone treatment on the mental health, suicidality, and quality 

of life of adolescents with gender dysphoria. None has shown negative effects. 

Additionally, there is substantial evidence to support the district court’s 

conclusion that the Act prohibits medical treatment that conforms with the 

recognized standard of care. Even international bodies that consider hormone 

treatment for adolescents to be “experimental” have not banned the care covered by 

Act 626. For example, Arkansas submitted to the district court a report from the 

Council for Choices in Health Care in Finland in which the council concluded that 

“[i]n light of available evidence, gender reassignment of minors is an experimental 

practice,” but the report still recommends that gender-affirming care be available to 

minors under appropriate circumstances. In fact, the Finnish council’s

recommendations for treatment closely mirror the standards of care laid out by the 

World Professional Association for Transgender Health (WPATH) and the 

Endocrine Society, two organizations the State repeatedly criticizes. Like WPATH, 

the Finnish council concluded that puberty-suppressing hormones might be 

appropriate for adolescents at the onset of puberty who have exhibited persistent 

gender nonconformity and who are already addressing any coexisting psychological 

issues. Similarly, the WPATH Standards of Care and the Finnish council both 

recommend that cross-sex hormones be considered only where the adolescent is 
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experiencing persistent gender dysphoria, other mental health conditions are wellmanaged, and the minor is able to meet the standards to consent to the treatment.5

In sum, having reviewed the evidence as a whole, we are not left with the 

“definite and firm conviction” that the district court’s factual findings are clearly 

erroneous. Rather, substantial evidence in the record supports its factual findings. 

In light of those findings, the district court did not err in concluding Act 626 is not 

substantially related to Arkansas’s interests in protecting children from experimental 

medical treatment and regulating medical ethics, and Plaintiffs have demonstrated a 

likelihood of success on the merits of their equal protection claim.

C. Balance of the Equities

In considering the risk of irreparable harm to the Plaintiffs, the district court 

found that if Act 626 went into effect, Minor Plaintiffs would be denied access to 

hormone treatment (including needing to stop treatment already underway), undergo 

endogenous puberty—a process that cannot be reversed—and suffer heightened 

gender dysphoria. These factual findings are supported by Minor Plaintiffs’

affidavits and are not clearly erroneous. The findings support the conclusion that 

Plaintiffs will suffer irreparable harm absent a preliminary injunction. 

Additionally, it is “always in the public interest to prevent the violation of a

party’s constitutional rights.” Bao Xiong ex rel. D.M. v. Minn. State High Sch. 

League, 917 F.3d 994, 1004 (8th Cir. 2019) (quoting Awad v. Ziriax, 670 F.3d 1111, 

5

The State also emphasized the judicial decision in Bell v. Tavistock & 

Portman NHS Foundation Trust, 2020 EWHC (Admin) 3274, in the United 

Kingdom, in which the court decided that minors under 16 years old could not

consent to receive hormone therapies and required court approval because it is “a 

very unusual treatment” with “limited evidence as to its efficacy.” Id. at ¶ 134. That 

judgment has since been reversed, however, with the court of appeals concluding 

that “[n]othing about the nature or implications of the treatment with puberty 

blockers allows for a real distinction to be made” from other medical treatment an 

adolescent might seek. 2021 EWCA (Civ) 1363, at ¶ 76. 
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1132 (10th Cir. 2012)). These interests, weighed against the potential harm to 

Arkansas of not enforcing Act 626 between now and a final ruling on the merits of 

the litigation, convince us that the district court did not abuse its discretion in 

granting Plaintiffs’ motion for preliminary injunction.

D. Scope of the Injunction

Arkansas’s final argument is that the district court abused its discretion by 

granting a facial injunction. It is true, as the State points out, that some minors 

experiencing gender dysphoria may choose not to pursue the gender transition

procedures covered by the Act and therefore would not be harmed by its 

enforcement. A party bringing a facial challenge must “establish that no set of 

circumstances exists under which the Act would be valid,” United States v. Salerno, 

481 U.S. 739, 745 (1987), but the State describes minors for whom the Act simply 

would have no application, see City of Los Angeles v. Patel, 576 U.S. 409, 418–19 

(2015) (“The proper focus of the [facial] constitutional inquiry is the group for whom 

the law is a restriction, not the group for whom the law is irrelevant.” (quotation 

omitted)). Moreover, Arkansas has failed to offer a more narrowly tailored 

injunction that would remedy Plaintiffs’ injuries. The district court did not abuse its 

discretion by granting a facial injunction. 

IV. Conclusion

Because we conclude the district court did not abuse its discretion in granting 

a preliminary injunction based on Plaintiffs’ equal protection claim, we need not 

address the State’s challenges to Plaintiffs’ other claims. The decision of the district 

court is affirmed. 

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