“SAFE” Act Laws Protecting Children Upheld in Two States

Aug 8, 2023

CINCINATTI, OH – The U.S. Sixth Circuit Court of Appeals recently ruled the laws of two states banning puberty blockers, hormone treatments, and medical mutilation for minors were constitutional and could remain in effect. The legislatures of Tennessee and Kentucky overwhelming voted to enact the “Save Adolescents from Experimentation (SAFE) Act” earlier this year and the laws, which have only minor differences, are the first of their kind to be upheld in federal court. 

The Appeals Court ruled 2-1 on July 8, 2023, in Tennessee’s case, and ruled 2-1 again on July 31, in Kentucky’s case, to remove the preliminary injunctions of lower courts finding that the legal challenges to both laws were likely lacking enough merit to win. Tennessee’s case will proceed to trial with a final ruling expected in late September.   

The American Civil Liberties Union challenged both SAFE laws on behalf of at least 10 families alleging the laws violate U.S Constitution’s due process and equal protection guarantees. They asserted that parents have a due process right to make medical decisions for their children and that the SAFE acts commit sex-based discrimination violating equal protection rights. The Appeals Court flatly rejected each claim.

Chief Judge Jeffery Sutton wrote the majority opinion in Tennessee’s case, an opinion that carried over to Kentucky’s case, acknowledging that parents have the right to make decisions about their children. However, he noted there was no consensus in the medical field regarding treatments for gender dysphoria and the U.S. Constitution does not take over the “field” in absence of any consensus. 

Judge Sutton wrote, “The challengers have not shown that a right to new medical treatments is ‘deeply rooted in our history and traditions’ and thus beyond the democratic process to regulate.” He further stated that since the Food and Drug Administration has not approved hormone drugs for these purposes, it was difficult to “constitutionalize” their use as a guarantee and it was “well within a State’s police power to ban off-label uses of certain drugs.” 

The Sixth Circuit was also skeptical about violations of equal protection. The Court cited the U.S. Supreme Court’s historic June 2022 Dobbs decision that overturned Roe v. Wade

Judge Sutton stated, “The [SAFE] Act bans ‘gender-affirming care’ for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other. If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs, a law equally appliable to all minors, no matter their sex at birth, does not require such scrutiny either.” 

Circuit Judge Helene White, who partially dissented in both cases, stated that while she believes that both laws discriminate who can get “cross-sex hormones” based on sex, she concurs with allowing Tennessee’s law to take effect because the lower court “abused its discretion” applying the injunction to all people in the state rather than just to the plaintiffs in the case. 

While Tennessee’s SAFE Act requires minors undergoing hormone treatments to stop by March 31, 2024, Kentucky’s version, one of the most protective in the nation, requires minors to begin weaning off current treatments immediately. Judge White would have kept the injunction against Kentucky in place due to believing the stricter timeline would cause “harm” to those already undergoing treatments at the time the law took effect. 

At least 21 states have passed laws protecting children from medically mutilating procedures. Arkansas 2021 SAFE Act was ruled unconstitutional in June 2023 after a full trial and is under a permanent injunction. Currently, SAFE Act-style laws in Alabama, Florida, Indiana, and Oklahoma have also been challenged and are on hold while their lawsuits are adjudicated.   

In the Tennessee opinion, Judge Sutton pointed out this “recent proliferation” of legislation and explained the “crux” of these cases lie within judicial restraint to keep policy making and debate within the confines of elected legislatures. 

Judge Sutton wrote, “Leaving the preliminary injunction in place starts to grind these all-over-the-map gears to a halt…What makes it bearable to choose between the two sides is the realization that not every choice is for judges to make. In this instance, elected representatives made these precise cost-benefit decisions…As for the public interest, Tennessee’s interests in applying the law to its residents and in being permitted to protect its children from health risks weigh heavily in favor of the State at this juncture.” 

The U.S. State Department notes that Female Genital Mutilation or Cutting (FMG/C), also called “Female Circumcision” in some parts of the world, is unlawful. 

“It is against U.S. law to perform FGM/C on a girl under the age of 18, or to send or attempt to send her outside the United States so FGM/C can be performed. Violation of the law is punishable by up to 5 years in prison, fines, or both. There is no exception for performing FGM/C because of tradition or culture. Cutting and other procedures that injure the female genital organs of a girl under 18 are prohibited under U.S. law.” 

If Female Genital Mutilation is unlawful, how much more should other forms of genital mutilation be unlawful? 

Liberty Counsel Founder and Chairman Mat Staver said, “There is no constitutional right to mutilate children. Puberty blockers, cross-sex hormones, and mutilating surgeries are often irreversible. There is little difference between female genital mutilation, which is unlawful, and these harmful genital mutilations. The Constitution’s language does not protect these barbaric procedures.” 

For more information about state laws protecting against gender ideology, visit Liberty Counsel’s website here

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