Arkansas became the first state in the nation to pass a Save Adolescents From Experimentation (SAFE) Act in 2021, shielding children from harmful gender transition procedures. The law was challenged almost immediately and struck down by the U.S. District Court for the Eastern District of Arkansas. This week, however, the full U.S. Court of Appeals for the Eighth Circuit reversed the lower court’s ruling, upholding the law and allowing the state’s attorney general to enforce it.

“Because the district court rested its permanent injunction on incorrect conclusions of law, it abused its discretion,” Judge Duane Benton wrote in the majority’s opinion. He added, “The judgment is reversed and the case remanded for proceedings consistent with this opinion.”

The challenge against the SAFE Act, and the district court’s subsequent ruling against the law, rested on alleged violations of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause and Due Process

Clause. The transgender-identifying minors and their families who challenged the law argue that the SAFE Act discriminates “based on sex in violation of the Equal Protection Clause. They argue that a minor’s sex determines whether he or she can receive certain medical treatments.” Benton explained, “According to the minors, a male minor can receive testosterone to masculinize his appearance, but a female minor cannot. … The minors’ reason that because a minor’s sex determines whether he or she may receive certain medical treatments, the Act classifies based on sex.”

Citing the U.S. Supreme Court’s recent decision in United States v. Skrmetti, which upheld Tennessee’s almost-identical SAFE Act, the circuit court concluded that Arkansas’s SAFE Act discriminates “based only on age and medical procedure.” The law does not bar adults from accessing gender transition procedures and thus does not discriminate on the basis of sex, but neither does it bar minors from access to hormone drugs and the like on the basis of sex, only on the basis of whether or not those drugs are being used for the purposes of a gender transition procedure.

“The Act does not classify based on sex. A minor male who receives testosterone in order to masculinize his appearance receives a different procedure than a minor female who receives testosterone as a gender transition procedure,” Benton wrote for the majority. He observed, “Because ‘no minor may be administered puberty blockers or hormones’ as gender transition procedures, but ‘minors of any sex may be administered puberty blockers or hormones for other purposes,’ the Act does not classify based on sex.”

Benton also addressed the challenge that the SAFE Act “discriminates based on transgender status.” The judge wrote, “To the contrary, the Act does not classify based on transgender status. Like the Tennessee law upheld by the Supreme Court, the Act effectively divides minors into two groups.” He explained, “In one group are minors seeking drugs or surgeries for the purposes that the Act prohibits. In the other group are minors seeking drugs or surgeries for purposes the Act does not prohibit.” Benton continued, “Although the first group may include only minors with transgender status, the second group ‘encompasses both transgender and nontransgender individuals.’ … Thus, there is a ‘lack of identity’ between transgender status and the prohibited class of medical procedures.” He concluded, “The Act, like the Tennessee law, regulates a class of procedures, not people.”

The parents of the transgender-identifying minors also argued that the SAFE Act infringes on their parental rights to make medical decisions for their children. “Parents do not have unlimited authority to make medical decisions for their children,” Benton responded. He continued, “The question is whether this Nation’s history and tradition, as well as its historical understanding of ordered liberty, support the right of a parent to obtain for his or her child a medical treatment that, although the child desires it and a doctor approves, the state legislature deems inappropriate for minors.” Benton observed, “This court finds no such right in this Nation’s history and tradition. The Supreme Court has long recognized the power of a state to regulate the medical profession to ‘provide for the general welfare of its people.’”

The judge continued, “Given the two parallel currents in this Nation’s history and tradition — first, states can prohibit medical treatments for adults and children, and second, parents cannot automatically exempt their children from regulations — this court does not find a deeply rooted right of parents to exempt their children from regulations reasonably prohibiting gender transition procedures.”

Benton’s opinion was joined by Chief Judge Steven Colloton and Judges Lavenski Smith, Raymond Gruender, Ralph Erickson, L. Steven Grasz, David Stras, and Jonathan Kobes. The former four were appointed to the bench by George W. Bush, while the latter four were appointed by President Donald Trump. Judges Jane Kelly, appointed by Barack Obama, and James Loken, appointed by George H.W. Bush, concurred in part and dissented in part, criticizing the majority’s treatment of “facts” in the case. The two judges disagreed with the majority’s conclusions concerning the Equal Protection and Due Process claims.

Arkansas Attorney General Tim Griffin (R), who appealed the district court’s decision to the circuit court, hailed the ruling in a statement. “I applaud the court’s decision recognizing that Arkansas has a compelling interest in protecting the physical and psychological health of children and am pleased that children in Arkansas will be protected from risky, experimental procedures with lifelong consequences,” he said. “Today’s decision is the culmination of many years of tireless and skillful legal work by this office.”

Jill Simons, executive director of the American College of Pediatricians, told The Washington Stand, “The American College of Pediatricians applauds the U.S. Court of Appeals for the Eighth Circuit’s decision to uphold the state of Arkansas’s SAFE Act that protects children from harmful chemical and surgical interventions for gender dysphoria.” She added, “The evidence shows that most of these children will outgrow gender dysphoria when supported, when underlying mental health and neurodevelopmental health issues are addressed, and when they are allowed to go through natural puberty.”

“The tide is turning and we are also seeing the closures of gender clinics at hospitals,” Simons continued. “We urge other states and courts who haven’t done so, to put children first, and safeguard them from these destructive and often irreversible interventions.”