Federal court hears oral arguments in SAFE Act appeal

ST. LOUIS — Federal appeals court judges here on Thursday heard legal counsel for the national ACLU and the U.S. Department of Justice argue that transgender minors have a constitutional right to gender-affirming care, while Arkansas’ deputy solicitor general said a state law prohibiting such care was in the best interest of youth and not discriminatory.

At issue is the 2021 Save Adolescents from Experimentation (SAFE) Act, which bans physicians from providing gender transition treatments like hormones, puberty blockers and sex reassignment surgeries to individuals under age 18.

Four Arkansas families and two physicians, represented by the American Civil Liberties Union of Arkansas, challenged the SAFE Act in federal court, where U.S. District Judge James Moody struck down the law in June 2023, saying, among other things, that the SAFE Act discriminated against transgender people and violated the U.S. Constitution’s First and Fourteenth Amendments. 

Arkansas Attorney General Tim Griffin appealed that decision in July 2023 to the 8th U.S. Circuit Court of Appeals. The state has argued there is no scientific evidence that children benefit from gender-affirming care and that the consequences can be harmful and often permanent for them.

Asked by the appeals judges whether the state law would ban health care providers from prescribing testosterone for conditions other than gender-affirming care treatment, Dylan Jacobs, Arkansas deputy solicitor general, said, “The statute does not prohibit that. The legislature wasn’t saying it has problems with testosterone.”

Regarding the district court’s ruling to strike down the ban on transgender care in Arkansas, Jacobs said “there are certainly risks, including sterilization” in the treatment, and noted it was not up to the district court to impose its own policy judgments.

ACLU attorney Chase Strangio, deputy director for the organization’s LGBTQ & HIV Project, told the appeals court Thursday they should uphold Moody’s ruling, noting, in part, that the state law undermines constitutional guarantees of equal protection and “supplants the judgment of parents and their abilities to determine medical care.”

Arkansas AG Griffin asks full appeals court to reverse ruling on transgender care for minors

Griffin has said his office “is fighting to protect our state’s children from dangerous medical experimentation. Moody, in his 80-page ruling striking the Arkansas law, affirmed the testimony of medical experts who said in their testimony for the plaintiffs that gender-affirming care is safe for minors. 

The State of Arkansas, Moody wrote, “failed to prove that its interests in the safety of Arkansas adolescents from gender transitioning procedures or the medical community’s ethical decline are compelling, genuine, or even rational.”

In 2021, a letter from the American Medical Association to the National Governors Association referenced the Arkansas SAFE Act and said, in part: “Arkansas recently enacted SAFE Act and similar bills pending in several other states would insert the government into clinical decision-making and force physicians to disregard clinical guidelines.” 

Gender-affirming care for minors, the AMA said, “must be sensitive to the child’s clinical situation, nurture the child’s short and long-term development, and balance the need to preserve the child’s opportunity to make important life choices autonomously in the future.”

The 8th Circuit Court of Appeals did not indicate when it might rule on the Arkansas law.

As of last November, similar laws had been enacted in 22 states, and legal challenges have been mounted in several of them. The U.S. Supreme Court has not yet taken up any of those cases.