Federal Judge Strikes Down Arkansas SAFE Act as Unconstitutional

Federal Judge James Moody, Jr., of the Eastern District of Arkansas, struck down the 2021 Arkansas SAFE Act Tuesday, finding that it violated the 14th and First Amendments of the Constitution. Moody temporarily enjoined state officials from enforcing the law in 2021 and has now made the injunction permanent. Arkansas was the first of now 20 states to enact legislation protecting minors from harmful, irreversible gender transition procedures to which they cannot consent. This is the first lawsuit to reach a verdict on the merits, although lawsuits are in process in multiple other states.

In an 80-page opinion, Moody ruled that the Arkansas SAFE Act (Act 626) violated the equal protection clause and substantive due process under the 14th Amendment and the free speech clause under the First Amendment.

In his Equal Protection analysis, Moody applied heightened scrutiny, instead of the easier rational basis test, because he said the law discriminated based upon sex. First, “Act 626 discriminates on the basis of sex because a minor’s sex at birth determines whether the minor can receive certain types of medical care under the law.” This claim depends entirely on a narrow definition of “medical care” — that is, if “medical care” is defined, for example, not as cross-sex hormones for both sexes, but rather as estrogen for males and testosterone for females. Second, Moody argued that the SAFE Act discriminated on the basis of sex because it “discriminates against transgender people.” To support this, Moody cited the way the Supreme Court’s 2020 Bostock opinion has been extrapolated beyond employment law by multiple circuit courts.

Under heightened scrutiny, Moody said Arkansas had to “show that the statute is substantially related to a sufficiently important government interest.” The state argued it had two government interests, which were not only “sufficiently important” but “compelling” (the terminology for strict scrutiny). Arkansas claimed a “compelling government interest in protecting the health and safety of its citizens, particularly ‘vulnerable’ children” and “in ensuring the ethical standards of the healthcare profession.” Moody’s verdict basically amounted to his judgment that Arkansas did not prove its case.

Said Moody:

“Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions.”

The substantive due process — which was really an argument about the fundamental right of parents to direct the medical care of their children — followed roughly the same logic. Moody held the state to a standard of strict scrutiny. He concluded, “As explained, the State has failed to present evidence that the gender-affirming procedures banned by Act 626 jeopardize the physical or psychological well-being of a minor with gender dysphoria.”

The free speech issue regarded the SAFE Act’s prohibition on doctors referring a patient for gender transition procedures. Arkansas argued that the prohibition “targets conduct, not communication,” namely writing a treatment order, which “is professional conduct subject to regulation by the State, even if it incidentally involves speech,” appealing to a definition of “refer” from Healthcare.gov. Moody was “not persuaded” by the state’s definition because “The Act does not define the word ‘refer.’” Instead, he chose to believe that it “clearly regulates speech and not conduct” by prohibiting health care workers from telling minors, unofficially, where to obtain gender transition procedures. It’s standard practice for courts to construe a law so that it complies with constitutional constraints, instead of construing it so that it violates the constitution.

Moody’s legal analysis was largely valid, although questionable at key moments. However, his bias showed through most clearly in the “findings of fact,” which comprised nearly three-quarters of his entire opinion.

Moody began by articulating the tenets of transgender ideology as facts — not theories.

“1. ‘Gender identity’ refers to a person’s deeply felt internal sense of belonging to a particular gender. … It is a ‘core part of who you are.’ …

“2. Most people are ‘cisgender’ and have a gender identity that aligns with their sex assigned at birth—the sex placed on their birth certificate at birth based on their external genitalia. …

“3. Transgender people have a gender identity that does not align with their birth-assigned sex. …

“4. ‘Gender incongruence’ is a condition where a person’s gender identity does not align with their birth-assigned sex.” (References to trial notes deleted)

The Arkansas SAFE Act defines “biological sex” scientifically, with regard to “reproductive potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth.” It specifically defines it “without regard to an individual’s psychological, chosen, or subjective experience of gender.” Instead of deferring to the legislature and working within the definition provided by the law he was tasked with analyzing, Judge Moody degraded sex from an objective, biological reality to something “assigned at birth.” Whereas the law holds biological sex to be more real than gender identity, the judge held gender identity to a “core part of who you are” — implying sex was not.

Moody asserted as a fact that “most people are ‘cisgender’” — a proposition that is not only debatable but is in fact only espoused by the extreme Left. In fact, a number of prominent figures who are hardly social conservatives consider the terminology ideological or downright offensive. Tech billionaire and Twitter owner Elon Musk tweeted Wednesday, “the words ‘cis’ or ‘cisgender’ are considered slurs on this platform.” Hours later, feminist author J.K. Rowling tweeted, “‘Cis’ is ideological language, signifying belief in the unfalsifiable concept of gender identity. You have a perfect right to believe in unprovable essences that may or may not match the sexed body, but the rest of us have a right to disagree, and to refuse to adopt your jargon.” But to Judge Moody, this is an unquestionable fact.

Given his own blatant ideology, it’s rich that Moody discounted most of the state’s expert witnesses because he claimed their comments “grounded in ideology rather than science,” even when they pointed out the low quality of studies and appealed to the experience of European countries like Sweden, Finland, and the United Kingdom. Specifically, Moody suggested that they were “testifying more from a religious doctrinal standpoint” because they had been recruited by Alliance Defending Freedom, “a Christian-based legal advocacy group.” Moody discounted three of the state’s four expert witness (including a pediatric endocrinologist and a plastic surgeon) as “unqualified to offer relevant expert testimony” because they had not personally provided gender transition procedures. The fourth expert witness called by Arkansas to testify actually blasted the law’s enforcement mechanism as “draconian.”

These easy dismissals demonstrate that the fix was in all along. Judge Moody ruled that Arkansas failed to prove gender transition procedures for minors were unsafe and unethical after disqualifying its expert witnesses for a lack of personal experience providing these procedures. Apparently, Moody would have only accepted testimony that these procedures are unsafe and unethical from those who actively provide them to minors.

Once he dismissed the state’s expert witnesses, the rest of Moody’s factual findings weighed heavily towards the testimony of the witnesses supplied by the ACLU. Among the “facts” he compiled, Moody claimed that, “for many adolescents, gender-affirming medical care significantly alleviates the distress of gender dysphoria, improves their mental health, and enables them to engage in school and social activities.” But the scientific evidence for this is sparse and of low quality. Rather, a substantial majority of gender dysphoric youth suffer from other mental health issues that are often the true cause of their psychological distress; when young people are placed on puberty blockers or cross-sex hormones, these other mental health issues often go unaddressed or even undiagnosed.

Moody claimed that “not all adolescents with gender dysphoria will live to age 18 if they are unable to get gender-affirming medical treatment” — clever wording that insinuates the suicide myth without quite claiming that gender transition procedures will improve their chance of survival. Dr. Jennifer Bauwens, director of Family Research Council’s Center for Family Studies, testified earlier this year, “Scientifically, based on the research methods alone, it is impossible to establish a causal relationship between the absence of gender-affirming procedures and suicide.”

Moody claimed that “regret over a medical procedure is not unique to gender-affirming medical care and is common in medicine.” While technically true, many medical procedures do not “surgically alter or remove healthy physical or anatomical characteristics,” as the SAFE Act puts it.

Nor are irreversible medical procedures lightly performed on children. Moody claimed that, “in general, adolescents are able to understand the risks, benefits, and alternatives to a medical intervention.” WPATH-affiliated pediatric endocrinologist Dr. Daniel Metzger has admitted, “We try to talk about it, but most of the kids are nowhere in any kind of a brain space to really, really, really talk about [reproductive regret] in a serious way. That’s always bothered me, but, you know, we still want the kids to be happy. Happier in the moment, right?” Detransitioner Chloe Cole testified that it is “irresponsible to expect a kid to fully understand what these treatments throughout life will entail.”

Worst of all, Moody claimed that “the risks of gender-affirming medical care are not categorically different than the types of risks that other types of pediatric healthcare pose” and that “for many adolescents the benefits of treatment greatly outweigh the risks.” To justify this ridiculous assertion, he euphemized the actual effects of treatments such as cross-sex hormones. Instead of telling the truth, that they will certainly result in permanent sterilization, he merely suggested they “can impact fertility.”

“This is a sad day for the children of Arkansas that a judge would choose to push the goals of a radical political movement instead of science,” Arkansas Rep. Robin Lundstrum (R), who originally sponsored the SAFE Act, said in a statement obtained by The Washington Stand. “There is nothing healthy or affirming about chemical or surgical castration of gender dysphoric minors who are unable to give consent nor have the ability to understand the long-term health consequences.”

Lundstrum added, “I’ve met many who as minors were permanently disfigured and sterilized. These procedures never brought long-term happiness. Instead, they mourn the loss not only of a part of their childhood but their future as well; mothers who will never breastfeed, and men with permanently altered bodies.”

In response to the ruling, Arkansas Attorney General Tim Griffin (R) said his office plans to appeal the decision to the Eighth Circuit. “Unfortunately, Judge Moody misses what is widely understood across the United States and in the United Kingdom and European countries: There is no scientific evidence that any child will benefit from these procedures, while the consequences are harmful and often permanent,” said Griffin. “I will continue fighting as long as it takes to stop providers from sterilizing children.”