The judge held the law discriminated based on sex, denied parents their liberty interest in caring for their children, and restricted physicians’ speech.
Judge James Moody Jr of the United States District Court for the Eastern District of Arkansas – Central Division in Arkansas struck down the Save Adolescents from Experiment (SAFE) Act, which banned “gender transition procedures” and medical referrals for those procedures. The judge found the law unconstitutional as a violation of the First and Fourteenth Amendments to the U.S. Constitution.
The judge’s decision included extensive findings of fact, including that “[t]ransgender care is not experimental care,” that gender transition procedures reduce depression and suicide rates, and that “[g]enital surgeries for adolescents are extremely rare.”
UPDATE 6/27/23: “Some medical practitioners subject minors to procedures that are unproven and experimental in this context,” Arkansas Attorney General Tim Griffin told Legal Insurrection. “These include puberty blockers, cross-sex hormones, double mastectomies and surgeries to create simulated genitalia. There are no scientific studies establishing any mental health benefits for minors as a result of undergoing these procedures.”
The SAFE Act asserted “a compelling government interest in protecting the health and safety of its citizens, especially vulnerable children,” as justification for banning procedures on minors that
(i) Alter or remove physical or anatomical characteristics or features that are typical for the individual’s biological sex; or
(ii) Instill or create physiological or anatomical characteristics that resemble a sex different from the individual’s biological sex. . . .
The SAFE Act also amended the professional standards for physicians to provide that
Any referral for or provision of gender transition procedures to an individual under eighteen (18) year of age is unprofessional conduct and is subject to discipline by the appropriate licensing entity or disciplinary review board with competent jurisdiction in this state.
The SAFE Act violated the Equal Protection Clause of the Fourteenth Amendment
The judge found the law discriminated on the basis of sex, for example, because a male would not be prohibited from “receiving testosterone or surgical procedures . . . for the purpose of aligning himself with his biological sex.” However, a female could not receive testosterone or the same surgical procedures to align herself with the opposite biological sex.
The judge also found the SAFE Act discriminated against transgender people, which, in light of Bostock v. Clayton County, entailed discrimination on the basis of sex because transgender status is intrinsically linked to sex.
Finding discrimination based on sex, the judge applied the intermediate scrutiny test. Under that test, a law discriminating based on sex must “further an important government interest and must do so by means that are substantially related to that interest.” The judge found Arkansas could not carry this burden.
The judge’s findings of fact included determinations that the banned care was effective, no more dangerous than many procedures legal to perform on minors, associated with little risk of regret and detransitioning, and based on proper evaluation and informed consent.
The SAFE Act violated the Due Process Clause of the Fourteenth Amendment
The judge found the law denied parents “the oldest of the fundamental liberty interests,” namely the right to care for one’s children. He found parents “have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.”
According to the judge, “[t]he Arkansas Medical Board is the best option for regulating the ethical considerations as well as the duties of the healthcare community in circumstances like the treatment of gender dysphoria.”
The SAFE Act violated the Free Speech Clause of the First Amendment
The judge rejected the state’s argument that the SAFE Act regulates professional conduct, not speech, because the law barred physicians from even telling patients about treatment options available elsewhere.
Finding the law regulated speech, the judge evaluated it as “a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for ‘gender transition procedures’ only, not for other purposes.”
Based on this finding, the judge applied the more stringent strict scrutiny test. Under that test, a law making content- or viewpoint-based distinctions must advance a “compelling governmental interest” in a manner “narrowly tailored” to achieving that interest.
The judge found Arkansas did not have a compelling governmental interest in restricting physician speech to keep children from gender transition procedures: “The problem with this argument is that the State has failed to prove that gender-affirming care for minors with gender dysphoria is ineffective or riskier than other medical care provided to minors.”
The judge granted a permanent injunction barring enforcement of the SAFE Act.
The judge’s opinion:
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