Keeping Score on SAFE Acts

One of the hottest policy questions of 2023 is what actions states should take to prohibit, regulate, or encourage the provision of gender transition drugs and surgeries to minors. “States are indeed engaged in thoughtful debates over this issue,” the Court of Appeals for the Sixth Circuit wrote in a September opinion, in which court wisely declined to “limit accountable elected officials from sorting out these medical, social, and policy challenges.” After a year-long flurry of activity, it’s time to check the score.

The Pre-Game Show

The nation was primed for change back in 2022, as investigations by independent, conservative media, including The Washington Stand, revealed that more than 13 hospitals carried out gender transition surgeries on minors. This included Boston Children’s Hospital bending the rules to carry out gender transition surgeries on children as young as 13. This gruesome profiteering occurred all across the country, even at Vanderbilt University Children’s Hospital, a state-funded institution in ruby-red Tennessee. Hospitals were rapidly opening new gender centers to cash in on these lucrative procedures, often without consulting all the evidence or the best interests of children.

However, before this year, only four state legislatures had passed any legislation to restrain the new Wild West of gender identity.

In 2021, the Arkansas legislature passed the Save Adolescents from Experimentation (SAFE) Act over the veto of Republican then-Governor Asa Hutchinson, a first-of-its kind bill that prohibited doctors from prescribing puberty blockers or cross-sex hormones to minors, or carrying out gender transition surgeries on minors, for the purpose of gender transition. (Hence, “SAFE Acts” as a label for bills that fall into this category, although many good bills have borne other titles, such as “Help not Harm.”)

Alabama passed a bill similar to Arkansas’s in 2022, while Arizona and Tennessee passed weaker versions. Arizona’s bill lacked any enforcement mechanism, while Tennessee’s was a stub that was inadequate to prevent hospitals like Vanderbilt’s from continuing to pursue these lucrative practices (even the legislature recognized this, since they passed a new version this year).

Federal district courts blocked Arkansas’s law in July 2021 and Alabama’s law in May 2022.

From Kickoff to Final Whistle

In 2023, 19 state legislatures (including Tennessee) have enacted bills to protect minors from gender transition procedures (generally called “SAFE Acts” here). That brings the total number of state legislatures that have enacted such bills over the past three years to 22, a major acceleration. The breadth of that success disguises the difficulties state legislatures had to overcome in the process.

Elected officials had to endure demonization by left-wing groups and their mouthpieces in the mainstream media, who slandered these bills as an “attack on trans rights” or “denying health care to LGBTQ kids.” They had to stick to the facts, even as the opposition lined up a string of medical “experts” who insisted that dooming children to a lifetime of drug dependency and infertility was best medical practice, and all the professional associations agreed. They had to endure pitiful tales designed to pull their heartstrings, as youth who identified as transgender and their parents testified at state capitols.

Elected officials had to endure harassment by armies of left-wing activists, who mobbed state capitols day after day by the hundreds and thousands, demonstrating a level of zeal and persistence that would make any uninterested observer wonder who was organizing and financing these circuses. In Kentucky, Florida, Montana, and Nebraska, protestors in the gallery disrupted either debate or votes on these bills by loud chanting or throwing things on the legislators below, forcing the chambers to briefly recess while state police made arrests. Protestors in North Carolina, Oklahoma, Texas, West Virginia all caused disturbances by loud chanting or so-called “die-ins,” while an estimated 2,000 protestors descended on Iowa’s state capitol during a chilly, Midwest March.

Elected officials even had to navigate around opposition from other elected officials. In Kentucky, Louisiana, and North Carolina, Democratic governors vetoed SAFE Acts, forcing Republican-controlled legislatures to override the vetoes. That was after a Republican in the Louisiana Senate killed the bill in a committee, prompting the Senate to take the extraordinary step of resuscitating the bill by moving it to another committee. In Montana, a state legislator egged on disruptive protestors from the floor and accused fellow members who voted for the bill of having “blood on your hands;” when he refused to apologize, the legislature censured him and revoked his speaking privileges. In the most unprecedented move, a Nebraska senator filibustered every bill in the legislative session over a SAFE Act-style bill.

Plays under Review

Unfortunately, America’s overly litigious activist class commands far too many financial resources, so for the duly elected representatives of the people to enact a bill is not the final step of a law’s life cycle. Next comes the inevitable, post-political courtroom stage, in which activist lawyers ask judges to constitutionalize everything, and judges — after testing the wind of public opinion — too often comply. More than half a dozen SAFE Acts have been challenged in court and, at some point this year, blocked by judges.

There are currently five SAFE Acts (including two passed in 2021 and 2022) currently blocked due to legal challenges, according to the pro-LGBT Movement Advancement Project (MAP). Three lost in federal court (although the block against one is narrow), one lost in a state court, and one won in a federal court but is currently inactive due to timing.

In June, a federal judge for the Eastern District of Arkansas permanently enjoined the 2021 Arkansas SAFE Act, finding that it violated the First and Fourteenth Amendments of the U.S. Constitution. Arkansas is appealing the decision to the U.S. Court of Appeals for the Eighth Circuit. A federal district judge temporarily blocked Indiana’s law in June, and a state district judge temporarily blocked Montana’s law in September.

Alabama and Florida also made the list, although they belong to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit vacated a preliminary injunction against Alabama’s 2022 SAFE Act-style bill, but that injunction remains in effect during a window of time for appeal. In Florida, the district court issued a June preliminary injunction that only applies to the parties who participated in the lawsuit.

There are currently nine SAFE Acts that have been challenged but remain fully in effect. Four won in federal court, four won in state court (one on procedural grounds), and one has not yet been ruled upon.

On September 28, the U.S. Court of Appeals for the Sixth Circuit reversed preliminary injunctions against SAFE Acts in Tennessee and Kentucky. On September 5, a federal judge for the Northern District of Georgia stayed her own preliminary injunction against Georgia’s law after the Eleventh Circuit — which covers Alabama, Florida, and Georgia — vacated a preliminary injunction against Alabama’s law. On October 5, a federal judge for the Northern District of Oklahoma upheld Oklahoma’s law. Pro-trans activist groups sued to block North Carolina’s law in the federal District Court for the Middle District of North Carolina on October 11, but the court had not yet ruled on the law.

As to challenges in state courts, a Texas district court blocked that state’s law on August 25, but the state Supreme Court reversed the decision on August 31, allowing it to take effect on September 1. In Missouri, Circuit Court of Cole County Judge Steven Ohmer denied a preliminary injunction against the law on August 23. In North Dakota, South Central District Judge Jackson Lofgren denied a temporary restraining order against the law on November 13; a hearing for a preliminary injunction is scheduled for January 19. In Nebraska, Lancaster County District Court Judge Lori Maret dismissed a lawsuit that challenged the law’s constitutionality on procedural grounds.

SAFE Acts in Idaho, Louisiana, and West Virginia are not yet in effect; they go into effect on January 1, 2024.

That leaves five SAFE Acts in effect with no legal challenges against them, although one is functionally inoperable. The ACLU chose not to challenge South Dakota’s law (or Iowa’s) as a matter of strategy, preferring to go all-in before the Eighth Circuit (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) against Arkansas, where they already received a favorable ruling. The ACLU initially promised to challenge Utah’s law in January, but has not done so. Arizona’s and Mississippi’s law are also unchallenged. However, Arizona’s 2022 law had its enforcement provisions removed prior to passage, and the new governor, Katie Hobbs (D), has indicated her position by signing two executive orders that aligns the state with those who protect these procedures.

All told, SAFE Acts are currently leading their opponents 13 (in effect) to six (not in effect).

Postseason Predictions

So far, so good for the 2023 season, but what comes next? In future legislative sessions, some states can improve their laws, while other states, which failed to pass laws this year protecting children from gender transition procedures, can do so. In some states, voters might have to express their wills before the legislatures will act.

The top candidates to enact SAFE Acts in 2024 or future legislative sessions are: Alaska, New Hampshire, Ohio, South Carolina, and Wyoming. In these five states, Republicans control both legislative chambers and the governor’s mansion. While some Democrats have voted for SAFE Acts, the weight of the party, particularly its lobbying and activism apparatuses, militate against them. So, these are the states most likely to pass them. In 2023, bills to protect minors from gender transition procedures actually passed the Ohio House and Senate,only to be vetoed by Governor Mike DeWine (R), and the Wyoming Senate (only to be voted down in a House committee), but they never made it out of committee in New Hampshire and South Carolina.

The state legislatures on the bubble to potentially pass a SAFE Act in upcoming years are Kansas and Wisconsin. In these states, Republicans control both legislative chambers while a Democrat sits in the governor’s mansion. In Kansas, a SAFE Act passed the House this year, while a similar bill passed both chambers of the Wisconsin legislature but was vetoed on December 6 by the governor. State legislatures have already enacted four SAFE Acts — Arkansas (2021), Kentucky (2023), Louisiana (2023), and North Carolina (2023) — over a governor’s veto. It is possible to do so again.

In a few states, passing a SAFE Act currently seems unlikely, but not impossible, and a swing election could improve the chances of success. According to the National Conference of State Legislatures, the parties share control of state governments in Michigan, Nevada, Pennsylvania, Virginia, and Vermont, besides those already mentioned. A swing election, particularly in a purplish battleground state, could put at least some of these state governments in a mood to protect kids.

Meanwhile, some states that already enacted SAFE Act-style laws could make their current legislation even better. At the risk of oversimplification, in 2023, six states passed extra-strong bills, seven states passed strong bills, and six states passed weaker bills. There’s quite a bit of nuance, and these lines are tricky to draw, so let me define the categories.

I define weaker bills as those which include an exception that essentially grandfathers-in any minor currently taking gender transition hormones, for an indefinite period of time — Georgia, North Dakota, Tennessee, Utah, and West Virginia. The “weaker bills” category also includes those that include no enforcement mechanisms (West Virginia) or which apply only to surgeries (Nebraska).

Strong bills are those which protect minors from surgeries and hormones and have at least some meaningful enforcement provisions, such as professional discipline, civil liability to private or public lawsuits, or criminal charges. They may allow minors currently taking hormones to continue on hormones, but only for a limited time, in order to wean them off the hormones.

I define the strongest bills as those which added additional salutary provisions to this basic protection and enforcement. These include prohibiting the use of taxpayer dollars for gender transition procedures on minors (Florida, Mississippi, Missouri, Montana, North Carolina, and Texas), preventing insurance from covering gender transition procedures for minors (Mississippi, Missouri, Montana, and Texas), and preventing people from counting gender transition procedures as a tax deduction (Mississippi and Montana).

These are good ideas, and other states could follow suit. At the very least, prohibiting the use of taxpayer dollars for gender transition procedures on minors seems like an easy lift, akin to prohibiting taxpayer dollars for abortion. One benefit of a federal system is that states can test out different ideas, learn from each other, and imitate the most successful policies.

The state legislative season in 2023 saw immense progress in the movement to protect minors from the harmful effects of experimental, irreversible gender transition procedures, to which they are not old enough to meaningfully consent. This progress was good to see, but there is plenty more to do to protect children. Additionally, this movement has created an inevitable backlash from the Left, and those who would protect children must be vigilant to resist their encroachments.

This is a live, developing controversy with moral, medical, and political implications. There could be surprises around every corner throughout 2024.