". . . and having done all . . . stand firm." Eph. 6:13


Federal Judge Declines to Block Oklahoma SAFE Act

October 19, 2023

An Oklahoma law to protect minors from the harmful effects of gender transition procedures may go into effect, Federal District Judge John Heil, of the Northern District of Oklahoma, ruled on October 5 in Poe v. Drummond. Oklahoma Attorney General Gentner Drummond (R) had previously agreed not to enforce the law until the court ruled on its constitutionality, so Heil’s decision essentially put the law into effect. Oklahoma Governor Kevin Stitt (R) said in a statement he was “pleased with the court’s decision,” adding, “Here in Oklahoma, we protect our kids. Plain and simple.”

Oklahoma enacted the law to protect minors (SB 613) on May 1, months after approximately 150 pro-trans protestors entered the state capitol and attempted to disrupt legislative deliberations with deafening chants.

Five families with minor children who identified as transgender and one practitioner who wished to provide gender transition procedures to minors sued to block the law, arguing that it violated the Equal Protection Clause and Due Process Clause under the 14th Amendment. These same arguments have been raised against similar laws in other states. But, the judge ruled, “Plaintiffs stand little chance of prevailing on their claim under the rational basis standard.”

Those challenging SB 613 advanced four different theories to allege the law constituted discrimination against people who identify as transgender under the 14th Amendment’s Due Process Clause. They argued that it is “discriminatory on its face because it makes distinctions in ‘explicit gendered terms,’” that it “enforces sex stereotypes and gender conformity,” that it “treats transgender individuals differently than other individuals,” that it “is part of a ‘larger legislative strategy to discriminate against transgender people, including by restricting access to gender-affirming care for people of all ages,’” and that it “singles out medical care that only transgender people need or seek.”

Yet none of these theories convinced the judge, who ruled instead that Oklahoma’s law drew a distinction based on age, not sex. “Facially, the distinction made is between adults who are ready to make life-altering decisions and minors who, at least in the eyes of the legislature, are not,” he wrote.

Likewise, the judge was unconvinced by the substantive due process challenge — essentially a parental rights claim — brought under the 14th Amendment’s due process clause. While the parents who challenged the law asserted a right “to seek appropriate medical care for their minor children,” the judge said this right was “too much of a ‘vague

Generality,’” and that court precedents required him to define the right more narrowly. Instead, he said the state offered an “appropriately careful definition” of the right in question, namely the right “to choose for their children to use puberty blockers, cross-sex hormones, and surgeries for the purposes of effectuating a gender transition.”

For a court to recognize a substantive due process right, the Supreme Court has said it must be “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Yet the judge said that the law’s challengers “have not provided any historical antecedents demonstrating that a right to the Treatment Protocols is deeply rooted.”

Based on this analysis, the judge weighed both the equal protection claim and the substantive due process claim under the Rational Basis test, the lowest possible bar for the state to clear.

“Where, as here, there is robust scientific and political debate concerning a significant public-policy question,” Heil wrote, “the Court should not cut off this debate by declaring that only one side has all the answers in its corner.” He added that “It is rational for the Oklahoma Legislature to regulate the Treatment Protocols for minors while the democratic process resolves ongoing questions of safety and efficacy.”

The opinion identified, from the record, “four distinct reasons” to conclude that SB 613 was “rationally related to a legitimate state interest.” First, the gender dysphoria diagnosis was “tied to the patients’ subjective beliefs and psychological condition,” making an invasive physiological treatment “not appropriate.” Second, taking gender transition drugs for the purpose of gender transition involves higher risks, “including impaired brain development and poorer psychosocial and educational development,” than using them to treat other conditions, such as precocious puberty, which the law allows. Third, long-term use of the gender transition drugs carries higher risks than short-term use. Fourth, the legislature permits the treatments “for those who seek to align their bodies with the development they would undergo without being in a diseased or disordered state, but not for those who seek to force their bodies out of alignment with such development.”

While emphasizing the features unique to Oklahoma record, Judge Heil’s reasoning closely followed recent decisions by the U.S. Appellate Courts for the Sixth and Eleventh Circuits, which reversed lower court injunctions against similar laws in Tennessee, Kentucky, and Alabama (a district judge also reversed her injunction against Georgia’s law based upon the Eleventh Circuit’s Alabama decision). In fact, the opinion cited those other decisions at length, relying heavily on their reasoning.

In contrast with these precedents, a federal judge in the Eastern District of Arkansas struck down the Arkansas SAFE Act in June, permanently enjoining its enforcement. Arkansas has announced plans to appeal to the Eighth Circuit, which previously upheld a preliminary injunction against the law.

Oklahoma’s law protecting minors from gender transition procedures is the first to obtain a court ruling in the Tenth Circuit, which also covers Colorado, Kansas, New Mexico, Utah, and Wyoming. Of those states, only Utah has enacted legislation to protect minors from gender transition procedures, but Joseph Backholm, Family Research Council senior fellow for Biblical Worldview and Strategic Engagement, warned the bill contains “a massive loophole.”

“I am gratified this court acknowledged the nationwide discussion and debate on these issues should be decided in state houses by elected legislatures and not by judges in a courtroom,” said Oklahoma Senator Julie Daniels (R), who sponsored SB 613. “I am hopeful that the Tenth Circuit will concur.”

Joshua Arnold is a senior writer at The Washington Stand.