Arkansas state officials (collectively, Arkansas or the State) appeal the order of the district court
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preliminarily enjoining Act 626 of the 93rd General Assembly 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 governors 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 physicians 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 individuals biological sex” or “[i]nstill or create physiological or anatomical characteristics that resemble a sex different from the individuals biological sex.” Id. § 20-9-1501(6)(A). Specifically identified services include “puberty-blocking drugs, cross-sex 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 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 plaintiffs favor. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 States invitation to modify well-established constitutional standing principles to require that a plaintiff demonstrate an injury traceable to every possible application of the challenged statute in order to satisfy the constitutional standing requirement.
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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 Engrs, 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).
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 individuals biological sex.” Ark. Code Ann. § 20-9-1501(6)(A). The statute defines “biological sex” as the persons sex “at birth, without regard to an individuals 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 minors 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.
Arkansass 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 states 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, 104 S.Ct. 1387, 79 L.Ed.2d 646 (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 Districts 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 students birth certificate,” the policy “is inherently based upon a sex-classification and heightened review applies”) (abrogation on other grounds recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020)).
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Statutes that discriminate based on sex must be supported by an “exceedingly persuasive justification.” United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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, 116 S.Ct. 2264. 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 dont agree, and I get that. Thats part of the deal.” We find no clear error in the district courts weighing of the competing evidence. See Med. Shoppe Intl, 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 courts institutional advantages in evaluating witness credibility and weighing evidence.”).
Furthermore, substantial evidence in the record supports the district courts factual findings, despite the contrary assertions of the States experts. For example, while Arkansass 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 courts 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 councils 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 experiencing persistent gender dysphoria, other mental health conditions are well-managed, and the minor is able to meet the standards to consent to the treatment.
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In sum, having reviewed the evidence as a whole, we are not left with the “definite and firm conviction” that the district courts 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 Arkansass 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 partys constitutional rights.” D.M. ex rel. Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019) (quoting Awad v. Ziriax, 670 F.3d 1111, 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
Arkansass 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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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, 135 S.Ct. 2443, 192 L.Ed.2d 435 (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 States challenges to Plaintiffs other claims. The decision of the district court is affirmed.
FOOTNOTES
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. The Honorable James M. Moody, Jr., United States District Judge for the Eastern District of Arkansas.
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. 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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. 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 courts 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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. 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.
KELLY, Circuit Judge.