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The Halachic Mandate for Gender Affirming Care:
Examining the Potential Efficacy of Religious Liberty

Claims made by Jewish Health Care Providers
Daniel Block228

In the wake of Dobbs v. Jackson Women's Health Organization,
many states enacted anti-abortion statutes which could be
challenged by Jewish individuals and institutions who believe
that such laws threaten their religious liberties.229 Although a
valiant effort, it is necessary to take a precautionary approach
to challenging such laws on grounds of religious freedom, for
successfully doing so could have reeling effects on LGBTQ+,
BIPOC, and other marginalized communities. This article takes
a bottom-up approach to such claims and investigates whether
a religious liberty argument can and should be made against
anti-trans laws.230

I. Road Map

This article will begin with an exploration of religious
liberty in the United States, highlighting key cases and
critiquing the Supreme Court’s departure from secularism in
the era of Establishment cases to evangelical sectarianism in
the era of Free Exercise cases. Then, a case study will show
that Jewish legal tradition and US law increasingly sit in

230 This approach comes from black feminist thinkers who teach that
freedom comes from the liberation of those on the bottom of the social
ladder.

229 Anderson, “Synagogue Challenges Florida Abortion Law over Religion,”
2022; Hernandez, “Some Jewish Groups Blast the End of Roe as a Violation
of Their Beliefs,” 2022.

228 Brandeis University, Class of 2025; The author dedicates this piece to the
queer rabbis, scholars, community members, and co-conspirators who came
before and fought for a future that celebrates everyone b’tzelem elohim.

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conflict, raising First Amendment concerns for Jewish health
care providers across the United States. This section will argue
that Arkansas’ Health Care Ban is not generally applicable,
lacks a compelling state interest, and must provide exemptions
for Jewish doctors. Finally, this paper will analyze issues with
the aforementioned case and discuss other viable modes of
ending health care bans enforced on the basis of sex.

II. History of Religious Liberty

Throughout the first one hundred seventy-eight years of
the Supreme Court’s existence, the Court refused to rule in
favor of claimants petitioning against religiously inhibitory
statutes.231 The Court reasoned that making a citizen’s
“...religious beliefs superior to the law of the land…” would
free individuals to establish their own law, erasing the need for
government.232 Over time, however, the Court whittled away at
its historic, and often discriminatory, approach to religious
liberty in order to provide accommodations for certain religious
minorities and establish the framework for the contemporary
debate over religious exemption in the Constitution.233

The Court first granted a constitutional right to religious
exemptions from otherwise generally applicable laws in
Sherbert v. Verner (1963). The case involved the State
Employment Security Commission denying a Seventh-Day
Adventist, Adele Sherbert, unemployment benefits after she
“...failed… to accept available suitable work when offered…”
and without “good cause.”234 The Supreme Court ruled that
forcing Sherbert to work on the Sabbath would run in
opposition, not only to the clear definition of “good cause” in

234 South Carolina Unemployment Compensation Law, S.C Code §
41-35-130 (1952).

233 Oleske, “Free Exercise (Dis)Honesty,” 2019, 699.
232 Reynolds v. United States.
231 Oleske, “Free Exercise (Dis)Honesty,” 2019.

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the statute, but also to the intent of the Free Exercise Clause.
The Court borrowed lines of reasoning from a similar case
from the Supreme Court of Michigan to show that statutes with
seemingly neutral purposes can have grave implications for
religious minorities and potentially exclude them from
engaging in public and religious life, contradicting the clear
charge of the government under the Bill of Rights.235 The Court
understood that, by ruling in favor of Sherbert, it opened a
Pandora’s box of Free Exercise claims in which folks would
begin to argue religious freedom from laws which they
believed themselves to be exempted from by their religion. In
order to prevent itself from becoming the arbiter of religious
legitimacy, the Court established the Sherbert test, which
allows the government to burden religious individuals so long
as it has a “compelling state interest” to do so. In the case of
Adele Sherbert, the Court relied on a strict scrutiny test to
determine that South Carolina’s practice of denying benefits to
all rather than investigating sincere unemployment claims did
not constitute a compelling state interest.236 Although the
threshold of “compelling state interest” had already been
established for other First Amendment cases, the Court failed
to construct a consistent framework for questions of Free
Exercise.237 This failure prevented the Court from establishing
reliable jurisprudence on religious liberty and caused vague,
weak, and inconsistent understandings of Free Exercise to
dominate the Judicial Branch for nearly three decades.

In the 1980s, the Employment Division of the Oregon
Department of Human Resources denied unemployment
compensation to a member of the Native American Church
under a law disqualifying employees discharged for
work-related “misconduct.” The man, Alfred Leo Smith, was

237 Nelson, “A Textual Approach to Harmonizing Sherbert and Smith on
Free Exercise Accommodations,” 2008.

236 Sherbert v. Verner.
235Swenson v. Employment Security Comm.

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fired from his job at a private drug rehabilitation center for
consuming peyote in a ceremonial context. Smith subsequently
filed suit against the department for violating his religious
liberties guaranteed under the Free Exercise Clause.238 The case
came before the Supreme Court twice to decide whether an
individual’s religious beliefs provide them an exemption from
the disqualification. At the first appearance, the justices
vacated the lower court’s ruling and instructed it to determine
whether peyote fell under the State’s controlled substance
law.239 On remand, the lower courts held that, although peyote
did fall within the controlled substance law, the lack of a
religious exemption for the drug violated the Free Exercise
Clause.240 Overruling the lower court, the Supreme Court
issued a 6-3 decision that the First Amendment permits Oregon
to ban the religious use of peyote and deny benefits. The Court
reasoned that the Framers did not write the First Amendment to
allow personal beliefs to take priority over otherwise valid laws
which the State is free to establish. The notorious Smith ruling
highlights the Court’s shifting understanding of the concept of
compelling state interest initially determined in Sherbert to one
that would prevent the courting of anarchy by religious
claims.241 Smith significantly limited the scope of the Free
Exercise Clause, effectively throwing out the strict scrutiny test
applied to Free Exercise cases under Sherbert unless a law
purposefully burdened religious practices.242

The new threshold, later solidified in Church of Lukumi
Babalu Aye Inc. v. City of Hialeah, carved two paths for cases

242 Marin, “Employment Division v. Smith,” 1990.

241 Employment Division, Department of Human Resources of Oregon v.
Smith et al, 1990.

240 Smith v. Employment Division, 1988.

239 Employment Division, Department of Human Resources v. Smith, et al,
1988.

238 Smith v. Employment Division, 301 Or. 209, 721 P.2d 445.

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of religious liberty.243 Both paths begin with Smith, asking
whether the regulation in question is generally applicable.244 If
the Court determines that the regulation is not generally
applicable under Smith, then it applies the Sherbert test of
compelling interest to determine whether the issue targeting
religious activity is necessary to achieve the goals of the
governing body. As in Lukumi, federal courts frequently hold
that regulations targeting specific religious practices do not
pass the strict scrutiny test.245 Despite this, the ruling in Smith
created an alternative path for the majority of policies in which
facially neutral laws can burden religious practitioners.
Following this path of reasoning, courts evaluate the
circumstance by applying rationally based scrutiny to statutes
“written and applied neutrally” but which incidentally burden
religious folks. This leads courts to conclude that, so long as
the infringement was incidental or facially neutral, it likely
does not violate the Free Exercise Clause under Smith.246

In the wake of Smith, and to a lesser extent Lukumi,
Congress, the Executive, and myriad religious organizations,
made attempts at strengthening Free Exercise by adopting the
Religious Freedom Restoration Act (RFRA) and the 1994
amendments to the American Indian Religious Freedom Act
(AIRFA).247 Despite this, the Supreme Court prevented the
Federal Government from broadly reinstating the “compelling
interest” test as set forth in Sherbert on state and local levels,
leaving such regulations subject to Smith.248 This ruling forced
federal courts to uphold facially neutral state and local laws

248 See City of Boerne v. Flores, 521 U.S. 507 (1997).
247 42 U.S.C § 2000 bb; 42 U.S.C § 1996.
246 Gautsche, “Neutral Discrimination,” 2014.
245 Winkler, “Fatal in Theory and Strict in Fact,” 2019.

244 Regulation in this context is broadly defined as any government
implementation with impacts for the public.

243 See Church of Lukumi Babalu Aye Inc. v. City of Hialeah 508 U.S. 520
(1993).

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which injured religious practitioners unless petitioners could
prove that the regulation contained secular exemptions,
codified or not.249 Although this may seem like a reasonable
compromise for a judicial system weighing issues of minority
religions against that of majority rule, it paved the way for the
Supreme Court’s 2022 adoption of the “Most Favorite Nation”
approach to Free Exercise in Tandon v. Newsom.250 This
framework bestows disproportionate power to evangelical
Christian plaintiffs who use religious liberty as a means of
weakening detested policies.251

The Court’s recent and callous eagerness to provide
amnesty for evangelicals running afoul of anti-discrimination
ordinances and the Establishment Clause, discussed further
below, leads many progressive religious minorities to see the
Court’s current stance on religious exemptions as an affront to
the original goals of the Free Exercise Clause.252

In 2014, the Supreme Court shifted further away from
the traditional view of the Free Exercise Clause as a protection
for religious minorities from discriminatory laws and toward a
weapon for fundamentalists to wield against the LGBTQ
community and people in need of reproductive care.253 In
Burwell v. Hobby Lobby, the Court ruled that a for-profit entity

253 Gillman and Chemerinsky, “The Weaponization of the Free-Exercise
Clause,” 2020.

252 See Anti-Defamation League, Orthodox Church in America, The Sikh
Coalition, et al. Brief of Amici Curiae in Support of Respondent in Fulton v.
City of Philadelphia, 593 US_ (2021); John Corvino, Ryan T. Anderson,
and Sherif Girgis, Debating Religious Liberty and Discrimination (New
York, NY: Oxford University Press, 2017).

251 Epstein and Posner, “The Roberts Court and the Transformation of
Constitutional Protections for Religion,” 2021; Melissa Murray, discussion
with Micah Schwartzman and Nelson Tebbe, 2022.

250 Ritesh Tandon, et al. v. Gavin Newsom 593 U.S. __ (2021), Justice Kagan
writing for the dissent.

249 See Fraternal Order of Police v. City of Newark, 170 F.3d 359 (1999);
and Tenafly Eruv Association Inc. v. The Borough of Tenafly 309 F.3d 144
(2002).

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run according to religious principles could deny its employees
coverage for contraceptive care.254 The Affordable Care Act
(ACA) mandated that for-profit companies provide health care
plans covering certain types of FDA-approved contraceptives,
but Hobby Lobby Stores Inc. successfully argued that the
mandate imposed a substantial burden on its honest Christian
convictions.255 Writing on behalf of the majority, Justice
Samuel Alito reasoned that a multi-billion dollar corporation
could hold religious beliefs protected under the Free Exercise
Clause and Federal RFRA. Justice Alito’s line of reasoning
partially relied on a conjured fiction connecting the Jewish
merchants whose religious freedoms were denied in Braunfeld
v. Brown (1961) and the Hobby Lobby Stores.256 This false
analogy posited that if the five merchants in Braunfeld
incorporated their businesses and lived in a time in which
RFRA existed, the federal government would
unconstitutionally force them to open on Saturdays and close
on Sundays solely because they operated as a corporation.257 In
replacing key issues of the 1961 case, the Justice rewrote
Jewish American legal history and co-opted discrimination
against Jews across the country in the name of the conservative
majority’s metastasizing evangelical agenda. By comparing the
oppression of Jewish Americans to the financial inconvenience
of Hobby Lobby, the Court justified endowing for-profit
organizations with the ability to exercise religious beliefs on
behalf of their owners. This ruling empowered evangelical
shareholders to mobilize their corporations, hiding their
prejudices and frugality behind a facade of religious zeal. The
ruling also muddled the line between owner and entity by
equating the beliefs of the former to that of the latter as

257Burwell v. Hobby Lobby Stores Inc. 573 US 682 (2014).
256 Braunfeld v. Brown, 366 US 599 (1961).

255 42 U. S. C. §300gg–13(a)(4), (2010); Burwell v. Hobby Lobby Stores Inc.
573 US 682 (2014).

254 Burwell v. Hobby Lobby Stores Inc. 573 US 682 (2014).

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corporations litigate not to maximize profits, but to advance
other mundane objectives.258

Three years after Hobby Lobby, the Court overlooked
major issues of entanglement when a church charged Missouri
with infringing on its rights to Free Exercise. When the
Missouri Department of Natural Resources denied the Trinity
Church of Columbia (Trinity) from receiving public funds for
purchasing recycled tires to resurface its playgrounds, Trinity
sued, suggesting that the state’s constitutional obligation to
deny it the grant violated the Church’s rights to Free
Exercise.259 Ignoring Missouri’s argument that its strict
anti-entanglement state Constitution and the Federal
Establishment Clause commanded the Department of Natural
resources to deny Trinity the grant, the majority of the Court
sided with Trinity.260 The Court figured that the rejection of
otherwise-qualified applicants based solely on the presence of
religion triggered a strict scrutiny test under Smith which the
state could not pass.261 This framing positioned the Court
greatly in favor of state-sponsored religion, whereby it would
become unconstitutional for states to deny institutions secular
aid when Missouri has “no viable Establishment Clause
claims.”262 The case, alongside other recent Establishment-Free

262 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US __ (2017).
It is important to note that despite the question of the case seemingly
voiding the state of an Establishment claim, Respondents continued to make
Establishment claims in their brief.

261 Drawing from Smith, Chief Justice Roberts wrote in the opinion that “the
Free Exercise Clause protects against laws that “impose special disabilities
on the basis of… religious status.”

260 American Civil Liberties Union Foundation et al. Brief of Amici Curiae
in Support of Respondent in Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 US __ (2017); MO. Const. Art. I, § 7 (1875).

259 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US __ (2017);
Brief for Petitioner in Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 US __ (2017).

258 Garrett, “The Constitutional Standing of Corporations,” 2014.

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Exercise battles, signals a growing willingness by conservative
justices to narrow the Establishment Clause in a post-Lemon
era and expand the Free Exercise Clause in a post-Smith era.263

The question remains, however, to whom such rights will be
extended and to what extent the Establishment Clause will be
sacrificed. Will everyone be granted the same levels of
religious liberties as evangelicals were in Hobby Lobby,
Bremerton, and Trinity, or will the hopes of conservative legal
theorists win out and allow them to deny religious minorities
the right to Free Exercise?264

III. Gender Affirming Care

A. Introduction to the Case

To explore the incongruencies between anti-trans laws
and halachic tradition, this section will apply Jewish legal
reasoning and American religious liberty jurisprudence to Act
626 of the Arkansas 93rd General Assembly, hereafter referred
to as the Health Care Ban, which was the first state law
explicitly criminalizing gender affirming care.265 Beginning
with a thought experiment on the halachic obligations of

265 Conron, O’Neill, Vasquez, and Mallory, “Prohibiting Gender-Affirming
Medical Care For Youth,” 2020; Defendants in Brandt v. Rutledge the 8th
Circuit Court upheld the lower court’s injunction of the Health Care Ban.
For the sake of argument, this article acts as if Brandt never happened.

264 Burwell v. Hobby Lobby Stores Inc. 573 US 682 (2014); Kennedy v.
Bremerton School District, 597 US__ (2022) effectively overturned Lemon
by reasoning that the government cannot suppress religious expression,
even when Establishment concerns exist; Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 US __ (2017); Blackman, et al, “Tentative
Thoughts on the Jewish Claim to a “Religious Abortion,’” 2022.

263 England, “Justices Answer Coach Kennedy’s Prayer with Play in the
Joints Audible,” 2020; Lemon v. Kurtzman was a major Establishment
Clause case and provided a three-pronged test to determine whether statutes
are secular, advance or inhibit religion, or excessively entangle the
government in religious matters.

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Jewish medical providers and then applying it to the current
predicament of Jewish physicians in Arkansas, this section will
prove that mounting anti-trans laws in conservative states,
predominantly supported by Evangelical Christians, violate the
Free Exercise rights of Jewish providers.266 This section calls
on Jewish healthcare providers to unite with LGBTQ+
communities and lawyers to fight the rising denial of science
and medicine in states like Arkansas, whose governments are
controlled by theocratic extremists, by bringing halacha and
the Free Exercise Clause into court.

B. Foundations of the Case and Halacha

Let us begin this thought experiment by positing that a
transgender eleven-year-old in Little Rock asks his
pediatrician, with the full support of his parents and long-term
therapist, to prescribe puberty blockers. The pediatrician,
anxious about the legal repercussions she could face for
providing treatment or recommendations, tells the family that
she will call back with a definite answer by the end of the
week.267

During that week, the doctor reaches out to her rabbi to
ask what she should do given the circumstances. Her rabbi tells
her to come to his office to discuss the doctor's worries about
providing gender affirming care to a child wishing to transition.
Upon arrival, the doctor explains that although she thinks the
Health Care Ban is abhorrent, she feels as though it leaves her
with nothing to do but to let her patient suffer.

267 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch. 9 §
1502 (2021).

266 For more on evangelicalism and anti-trans laws/culture see Sex and
Uncertainty in the Body of Christ: Intersex Conditions and Christian
Theology, 2010, by Susannah Cornwall and OtherWise Christian: A
Guidebook for Transgender Liberation, 2019, by Chris Paige.

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Responding to the internal conflict in his congregant,
the rabbi recounts the story of the wicked Turnus Rufus and
Rabbi Akiva to explain that the disparities in the world exist
for the children of God to change, not to enjoy as
predetermined.268 He further explains that God makes no
mistakes in putting trans folk in the wrong body, just as God
makes no mistakes in allowing people to develop inflamed
appendices or heart defects.269 God creates these situations to
allow doctors and their patients to work in collaboration,
building a compassionate society through learning and care.270

To ignore the cries of trans children who beg their doctors to
help them materialize their identity would be a crime akin to
murder, no different from denying care to a patient with the flu
or Crohn’s Disease.271

The doctor responds by saying that she knows that she
should offer the boy care, but even to make a medical
recommendation would put her medical license in jeopardy,
preventing her from providing care for sick children in the
future.272 The rabbi first responds by reminding the doctor that
one who destroys a soul is considered to have destroyed the
entire world, and to deny her current patient the care he needs
would be to deny him of his existence, sentencing him to years
of trauma that could end in suicide.273 Addressing her concern
for future patients, the rabbi reminds the doctor that the boy’s

273 Mishnah Sanhedrin 4:5; Yerushalmi Talmud 4:9; Hayward, “Don’t
Exist,” 2017, 191-194;  Van der Miesen, et al., “Psychological Functioning
in Transgender Adolescents before and after Gender-Affirmative Care
Compared with Cisgender General Population Peers,” 2020), 699-704.

272 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch. 9 §
1504 (2021).

271 Beit Yosef, Yoreh Deah 336:2.
270 Sefer HaChinuch 66:2.

269 Moskowitz and Safer, “Advancing the Rabbinic Prescription for
Transgender Health Care,” 2019.

268 Bava Batra 10a:4.

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life is not a hypothetical, unlike the lives of future patients.274

The doctor’s inclination to shed the blood of one child in
exchange for her career and the lives of future patients is an act
of violence that violates her sacred duties as a qualified Jewish
medical professional.275 According to halacha, the doctor must
show compassion, knowing that neither she nor the State of
Arkansas could ever completely comprehend the boy’s
experience, and she must provide gender affirming care.276

With this information, the doctor realizes that,
according to Jewish law, she must provide the boy with gender
affirming care. Following the conversation with her rabbi, the
doctor calls the patient’s family to inform them that she will
prescribe the off-label usage of gonadotropin-releasing
hormone (GnRH) injections to suppress the boy’s natural
releasing sex hormones. After three rounds of safe injections,
consistent monitoring, and thousands of dollars in
out-of-pocket payments from the family, the Arkansas State
Medical Board learns of the doctor’s actions and calls a
disciplinary hearing in accordance with the Health Care Ban.277

The Medical Board revokes the doctor’s license under charges
of “unprofessional conduct,” forcing her to appeal.278

C. The Case

We continue the imagined case of the Jewish doctor to
evaluate the efficacy of predominantly conservative legal
methods of reasoning as a means of protecting gender
affirming care. We will first apply the Most Favorite Nation

278 Medical Practices Act, A.R. Code Title 17, Ch. 95 § 409 (2) (2020).

277 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch. 9 §
1504 (a) (2021).

276 Yoma 83a:2.
275 Shulchan Arukh, Yoreh De’ah 336:1.

274 Rabbi Mike Moskowitz, interviewed by Daniel Block, virtual, May 24,
2022.

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Doctrine to show that the Health Care Ban violates the Federal
Constitution’s guarantee to Free Exercise. Then, we will show
a plain and historical reading of the Free Exercise Clause and
how it allows the Jewish physician to continue prescribing
hormone replacement therapy (HRT). We will end with a
critique of the case below, examining pitfalls and shortcomings
that a Jewish petitioner and their legal team may expect when
making such religious liberty claims.

D. Most Favored Nation Doctrine

The invention of the Most Favorite Nation Doctrine
highlights the asymmetric treatment of religious exemptions
demanded by zealots appearing before courts. As solidified in
Fulton v. Philadelphia, the Supreme Court understands that the
existence of any individual and secular exemption written into
statute renders the policy not generally applicable, thereby
triggering the strict scrutiny test under Sherbert.279 When
evaluating the permissibility of a law not generally applicable,
courts must question whether the denial of religious exemption
relies on the compelling interest of the governing body.280 As
previously stated, the denial of religious exemption seldom
passes the strict scrutiny test in courts. Before arriving at this
test, we must ask two questions: (1) does the statute provide
any individualized exemptions? (2) If so, does the government
take into consideration the particular reason behind the conduct
in question? The following evaluation will show that the
answer to both questions is yes, triggering a strict scrutiny test
of compelling state interest that the Ban will surely fail.

Upon answering the first question, one would see that
the Health Care Ban excludes the treatment of those with a
“medically verifiable disorder or sex development” or an

280 Church of Lukumi Babalu Aye Inc. v. City of Hialeah 508 U.S. 520
(1993).

279 Fulton et al. v. City of Philadelphia, 593 U.S. __ (2021).

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“infection, disease, or physical disorder, injury, or illness” from
its definition of “gender transitioning procedures”.281Although
one might argue that the categorical exclusion of certain classes
of health conditions is not the same as an individualized
exemption from the law, it is clear that, by applying the
definition of “gender transitioning procedures” to all pediatric
prescriptions of HRT and Gonadotropin-Releasing Hormones
(GnRH) except those with the aforementioned “medically
verifiable conditions” the Ban does in fact create an exemption.
For example, a pediatrician treating children with
hypogonadism would not have to worry about being sanctioned
for prescribing HRT because a categorical exclusion exists in
the Health Care Ban for doctors treating children with such
ailments.282 However, the same doctor would be barred by the
Health Care Ban from prescribing HRT to patients who seek
the treatment as gender affirming care.283 The ban’s exclusion
of gender affirming care from its definition provides doctors
treating gender conforming patients with a secular exemption
under the law. The existence of a secular exemption for
individual doctors providing care to children with “medically
verifiable conditions” parallels the exemptions ruled
unconstitutional in Supreme Court religious liberty cases.

To evaluate whether the Ban invites a governing body
to consider the reason for the conduct, we turn to Fulton v. City
of Philadelphia. In Fulton, the Court held that the
Commissioner of the Department of Human Services’ refusal
to contract Catholic Social Services (CSS) unless it certifies

283 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch9 §
1502 (a) (2021).

282 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch9 §
1501-6B(ii) (2021); Save Adolescent From Experimentation Act, A.R.
Code Title 20, Ch9 § 1501-6B (iv) (2021).

281 Save Adolescent From Experimentation Act, A.R. Code Title 20, Ch9 §
1501-6B(i) (2021); Save Adolescent From Experimentation Act, A.R. Code
Title 20, Ch9 § 1501-6B(iii) (2021).

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same-sex couples as foster parents violated the Free Exercise
Clause.284 The Court relied on its rulings in Smith and Bowen v.
Roy (1986) to determine that laws which create a system of
individual exemption cannot prevail unless they extend such a
system to issues of religious hardship.285 The Arkansas General
Assembly created a system similar to that in Fulton when it
empowered the Arkansas State Medical Board (ASMB) to
investigate claims of unprofessional conduct and categorical
exemptions.286 During its investigation and hearing
proceedings, the ASMB must “accord the person against whom
charges are preferred a full and fair opportunity to be heard in
his or her defense.”287 However, by opening the door to a “full
and fair” hearing of the defending health care provider, the
ASMB is forced to consider the particular reason for the
provider’s decision to violate the law. It must do so, not only to
give a “full and fair” hearing to the accused, but to determine
why the treatment was prescribed. For instance, if a doctor
were accused of illegally prescribing HRT for the purpose of
gender affirmation, they may seek dismissal because they
prescribed HRT to treat a “medically verifiable condition”.
Upon hearing this reason for prescription, the ASMB would
surely deem the provider not guilty and dismiss the case.
However, if the ASMB were to ask the Jewish doctor in the
case above why she prescribed GnRH, the doctor would
undoubtedly explain that she administered the treatment
because she deeply believes her religion commands her to do
so. Despite holding serious religious convictions that informed
her decision, the ASMB would still deny the doctor an
exemption, even though it would do so for a doctor prescribing
HRT for non-gender affirming reasons.

287 Medical Practices Act, A.R. Code Title 17, Ch. 95 § 410(d).
286 Medical Practices Act, A.R. Code Title 17, Ch. 95 § 410.
285 Bowen v. Roy, 476 U.S. 693 (1986).
284 Fulton et al. v. City of Philadelphia, 593 U.S. __ (2021).

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The consideration of the doctor’s reason for violating
the law, a consideration the ASMB is mandated to undertake
during its proceedings, renders the law not generally applicable
and triggers strict scrutiny.288 The ASMB not only hears the
defendant’s case to understand the reasoning behind the action,
but to determine whether the conduct truly was in violation of
the Health Care Ban. If the ASMB determines that the accused
medical provider was acting in accordance with the law and
providing HRT for someone with a “medically verifiable
condition”, it will recognize the categorical exemption and
dismiss the charges.289 Because the exemption is predicated on
the reason for treatment, and doctors accused of violating the
law must demonstrate that the care they prescribed falls within
the Ban’s listed exemptions, the ASMB must provide
individualized exemptions to doctors. The provision of
individualized exemptions enumerated in the Ban and executed
by the ASMB’s interrogation of a doctor’s particular motive for
prescribing care infringes upon the Jewish doctor’s right to free
exercise and “can be justified only by a compelling state
interest.”290

E. Compelling State Interest

Finally arriving at the question of compelling state
interest, we ask if the State of Arkansas maintains a compelling
interest in preventing the Jewish doctor from fulfilling her
halachic obligation to provide medical care to trans children.

The Court held in Trinity v. Comer and solidified in
Espinoza v. Montana Department of Revenue that state laws
generally providing funding for social programs while
prohibiting funding for religious organizations “impose special
disabilities on the basis of religious status” and violate the Free

290 Fulton et al. v. City of Philadelphia, 593 U.S. __ (2021).
289 Medical Practices Act, A.R. Code Title 17, Ch. 95 § 410(e)(2).
288 Bowen v. Roy, 476 U.S. 693 (1986).

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Exercise Clause’s prohibition of unequal treatment of religious
folk.291 Although the disputed elements in the case do not
involve the distribution of public funds, it is clear that the Ban
similarly burdens Jewish healthcare providers by allowing
doctors prescribing HRT and GnRH for non-gender affirming
reasons to continue their practice. It thus “effectively penalizes
the Free Exercise” of the Jewish doctor’s constitutional
liberties to practice her faith, which deeply informs her medical
practice.292 Some may argue that the Ban does not qualify as a
“special disability,” because it prevents all doctors from
prescribing gender affirming treatment, not just Jewish doctors.
However, the fact that no provider can prescribe gender
affirming care is not what qualifies the above case as a “special
disability”. The crux of the constitutional violation rests on the
fact that the doctor is obligated by halacha to validate the trans
child through medicine, and the State of Arkansas punishes her
for doing so. This indirect coercion forces the physician to
“surrender” her “religiously impelled” actions or suffer the
penalty dealt by the ASMB.293

By framing the case in terms of coercion, we see that
the state’s desire to restrict access to gender affirming care does
not provide a compelling enough interest for preventing Jewish
health care providers from fulfilling their religious
obligations.294 This assertion is buttressed by the fact that
Arkansas lacks any sort of “historic and substantial” interest in
forbidding Jewish doctors from fulfilling their religious need to
care for their patients.295 In fact, the State’s historical and
substantial interest in preserving the rights of religious
individuals who violate local statute far outweighs the State’s

295 Locke v. Davey, 540 U.S. 712 (2004).
294 Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988).
293 McDaniel v. Paty, 435 U. S. 618 (1978).
292 Sherbert v. Verner, 374 U.S. 398 (1963).

291 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US __ (2017);
Espinoza v. Montana Department of Revenue, 591 U.S. __ (2020).

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recent interest in policing gender affirming care.296 By
weighing these two interests against one another, it becomes
clear that Arkansas and its people throughout history have
maintained higher regard for the protection of religious
exercise than it has for the restriction of gender affirming care.
Clearly, the Ban fails the strict scrutiny test on these grounds.

F. Issues with the Case and Further Considerations

Although this article proved that the State of Arkansas
fails the strict scrutiny test and that the ASMB must provide
religious exemptions for Jewish doctors prescribing gender
affirming care to minors, the strategy taken in the above case
should only be utilized as a desperate last resort. If a lawyer
were to argue that a Jewish doctor who lost their license due to
providing gender affirming care should receive an exemption
on the basis of religion, they would probably succeed on the
merits. However, three critical issues arise from succeeding in
the above case: (1) It would further legitimize the “Most
Favorite Nation” Doctrine and strengthen arguments raised by
conservatives wishing to be exempt from non-discrimination
ordinances; (2) It would only empower Jewish medical
providers to prescribe gender affirming care to minors, a small
population in Arkansas; (3) It ignores the more convincing
Civil Rights argument which Justice Neil Gorsuch made
available to liberal attorneys in Bostock v. Clayton County. This

296 Millar, “What makes Arkansas’ ‘Religious Freedom’ Bill Different from
Other States?,'' 2015;  The passage of Ark Code Title 12, Subtitle 5, Ch. 75
§ 134 (2021) highlights Arkansas’ interest in protecting “soul-sustaining”
religious activities, despite the advice of select medical professionals;  For
an example of Arkansas’ historic interest in defending religious
practitioners from government interference see Ernest Valachovic, “Faubus
Opens Home to Children of Cude; Assails Ruling as Too Drastic On Simple
Law.” Arkansas Gazette, April 8,1964. p.1A-2A. Although the request for
religious exemption was denied in Cude, Governor Faubus and many
Arkansans voiced support for Mr. Cude during the early 1960s.

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final section will explain why each of these flaws must be
seriously considered before any attorney makes a religious
liberty claim to practice medicine.

As previously discussed, the “Most Favorite Nation”
Doctrine has only appeared in one Supreme Court ruling and
one shadow docket decision, both of which occurred in the past
two years.297 The newness of this Doctrine not only shows the
maximalist tendencies of the recently anointed
ultraconservative Supreme Court, but also its willingness to
disregard the Establishment Clause’s prohibition against the
government showing preference toward religion. If a liberal
attorney were to utilize the Doctrine to secure the right for a
Jewish medical provider to prescribe gender affirming care to a
minor, they open the door for plaintiffs of other beliefs to
attack similar statutes. For example, if the Court validated the
above argument and granted the Jewish doctor an exemption
from the Ban, evangelical psychiatrists living in other states
could challenge statewide bans against conversion “therapy”
on similar grounds. To remedy this, attorneys could make the
potentially problematic argument that the Jewish physician is
commanded by a rich history of oral and written laws, whereas
no parallel tradition encourages the abuse of queer youth in
Evangelicalism.298 In suggesting that the Jewish doctor is
explicitly commanded by her religion to provide health care for
those in need, as opposed to the psychiatrist who sees
queerness as an abomination, a lawyer could demarcate the
boundaries of what it means to exercise religion. This argument
would rely on a differentiation between religious
commandments and what a religious person views as
“endorsing” or “promoting” unholy behavior. Such a claim
would rest on the fact that Talmudic tradition commands the
Jewish physician to provide medical care, but the Bible does

298 Neumann, “‘A Definitive but Unsatisfying Answer,’” 2022, 108-147.

297 Fulton et al. v. City of Philadelphia, 593 U.S. __ (2021); Tandon v.
Newsom, 593 U.S. __ (2021).

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not command its followers to let children suffer. Furthermore,
evangelical leaders have explicitly condemned the practice of
conversion therapy, a fact which could potentially weaken a
religious liberty claim to administer the conversion
“treatment.”299 Still, attorneys should explore the possibilities
and risks of arguing that only those explicitly commanded to
act a certain way can receive religious exemptions under the
“Most Favorite Nation” Doctrine. Before making a religious
liberty claim to prescribe gender affirming care, lawyers must
ascertain a clear understanding of “exercise” in the First
Amendment so that they do not incidentally burden religious
minorities living in states such as Arkansas’.

The fact that the above argument would only empower
Jewish doctors with the ability to prescribe gender affirming
care needs little discussion. Because the above case argues for
individualized religious exemptions for Jewish doctors, it
leaves no room to include physicians of other faiths who are
similarly commanded to provide treatment for trans youth.
Although physicians could form a coalition of complainants in
the above case, doing so might dilute the sincerity of the claim
for individual exemptions, leading them to potentially be
accused of using religion as a means of advancing a political
agenda. Additionally, providing religious exemption to Jewish
practitioners in Arkansas does nothing in actuality to alleviate
the pain inflicted by the Ban. Only one practicing Jewish
general pediatrician currently lives in central Arkansas, and
there is no Jewish endocrinologist in the state to actually
monitor healthy hormone levels in children.300 Clearly, the
above case exists in a world where there are enough Jewish
health care providers to treat all of the trans children in

300 Rabbi Barry Block, interviewed by Daniel Block, virtual, August 26,
2022.

299 Bailey, “Evangelical Leader Russell Moore Denounces Ex-Gay
Therapy,” 2014.

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Arkansas, but no such world actually exists, which is why the
case is a thought experiment.301

The last issue for lawyers to consider before
implementing the strategy in the above case is Justice
Gorsuch’s understanding that the LGBTQ+ community sits as
a protected class in the Civil Rights Act of 1964.302 An attorney
could point out that the Health Care Ban makes testosterone
illegal for trans boys because they were born in a female body,
but it still allows cisgender boys to receive testosterone
because they were born in a male body. This argument would
push the idea that Arkansas violated the Civil Rights Act when
it identified the sex of the child as the only qualifying factor in
considering whether they can receive HRT, GnRH, or other
gender affirming treatments. This qualifying factor forces the
entire Arkansan medical field to deny trans people a certain
level of care, which it otherwise offers to cisgender patients,
entirely on the basis of sex.303 The sex-based discrimination,
mandated by the Ban, violates the Civil Rights Act and cannot
be upheld in court.304 This claim is likely the most persuasive.
If successful, the Civil Rights claim would also have the
greatest impact for trans people and their doctors in Arkansas.
It would allow doctors to administer gender affirming care,
regardless of religion, and would recognize that the rights come
from that of the trans individual and do not depend on a
relationship with a Jewish physician.

304Bostock v. Clayton County, 590 U.S. __ (2020).

303 Note the difference between sex and gender. Sex is determined by the
last two chromosomes in a human’s genome. It by no means makes
someone a man or woman. Gender can only be articulated by the individual.

302 Bostock v. Clayton County, 590 U.S. __ (2020).

301 Of course, this ignores the fact that a Jewish doctor living in a bordering
state could be licensed in Arkansas and travel for the sole purpose of
providing gender affirming care.

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IV. Conclusion

This paper examined religious liberty jurisprudence and
the efficacy of making a Free Exercise claim to prescribe
gender affirming care to minors in Arkansas. Although the
claim would be a noble effort made by a Jewish doctor, and it
highlights religious coercion forcing Jewish Arkansans to
choose between their religion and other cherished rights, it
would not extend sufficient access to care for trans kids and
would only legitimize the religious claims made by
fundamentalists looking to defy non-discrimination statutes.
Lawyers could add a Free Exercise claim to a case primarily
concerning the Civil Rights issues of the ban, but the health
care provider’s religion should not be the center of the case.
Despite the issues with the Free Exercise claim, it is still
crucial for Jewish health care providers in Arkansas and across
the country to enthusiastically fight for the right of trans
children and their families to receive gender affirming care.
Only by joining hands with the trans community can Jewish
health care providers ensure a more just and joyous world for
their patients, regardless of identity.

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Smith v. Employment Division, 307 Or. 68, 763 P.2d 146
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Save Adolescent From Experimentation Act, A.R. Code Title
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