The War on Trans Kids Is Totally Unconstitutional

States do not have a defensible reason for denying children recommended medical care.

An illustration of a gavel, a caduceus, and male and female sex symbols
Getty / The Atlantic

About the author: Ronald J. Krotoszynski, Jr. is the John S. Stone Chair at the University of Alabama School of Law and the author of The Disappearing First Amendment.

Laws that prohibit physicians from providing treatments such as puberty blockers and cross-hormone therapy to minors are bad public policy. Their advocates claim that these are efforts to protect kids, who they argue may later change their mind, from medical treatments they characterize as irreversible. But these arguments don’t hold up to scrutiny: The laws—such as the one Arkansas just passed and those that more than a dozen other states, including Alabama, Oklahoma, South Carolina, and Texas, are actively considering—will certainly harm transgender children, denying them medical care that they need and causing them psychological pain. That should be reason enough to oppose these laws.

But even those who are skeptical of today’s gender politics should oppose these laws for another reason: They clearly violate the U.S. Constitution.

The most obvious, and compelling, constitutional objection to Arkansas’s Save Adolescents From Experimentation (SAFE) Act and laws like it arises from the Fourteenth Amendment’s guarantee of equal protection under the law. That guarantee means, among other things, that a state government may not target one group of residents for discriminatory treatment arising from animus, dislike, or irrational fear.

Since the 1970s, the Supreme Court has consistently rejected moral disapproval of a particular group of individuals as a constitutionally legitimate basis for imposing targeted legal burdens on the group. Thus, when Congress attempted to, in the Court’s assessment, “prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program,” the Supreme Court unanimously struck down the ban for otherwise eligible “hippies.” In U.S. Department of Agriculture v. Moreno, decided in 1973, Justice William J. Brennan Jr. wrote, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

This bedrock equal-protection principle has endured over time. As Justice Sandra Day O’Connor explained in her concurring opinion in Lawrence v. Texas, the landmark 2003 decision that invalidated Texas’s ban on same-sex intimacy in private, “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”

In clear contradiction of this constitutional rule, Arkansas’s SAFE Act singles out one group in need of medical care—transgender children—and makes the provision of that care within the state unlawful. No other medically necessary service is proscribed; everyone else in the state may seek and obtain medically necessary treatment. Moreover, the Arkansas law also appears to require that ongoing treatments for gender dysphoria immediately stop, even if ceasing such treatment, including hormone therapy, could cause a child serious medical harm.

Arkansas would need a reason other than mere fear or dislike of transgender children as a basis for denying them, and only them, lawful access to medical care. It does not have one. This is not about the fact that these kids are kids. Arkansas permits minors, with their parents’ consent, to obtain medically prescribed services or treatments for any other reason at all—just not this one. This is the essence of irrational discrimination, a fact not lost on Republican Governor Asa Hutchinson, who in vetoing the law called the SAFE Act a “vast government overreach” that constitutes unjustified “legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.” His veto was almost immediately overridden by the Republican-led state legislature—and by overwhelming margins.

The federal courts should hold that the SAFE Act and all similar state laws lack a legitimate government purpose, meaning that they are unconstitutional. Indeed, a court considering the constitutionality of the SAFE Act need not even decide whether transgender children as a class constitute a “discrete and insular minority” that requires more vigorous constitutional review under the equal-protection clause, because the law is self-evidently irrational, as it lacks any plausible scientific or medical basis and rests on obvious prejudice.

The law’s supporters claim that their objective is safeguarding the health and safety of kids—after all, the statute is called the SAFE Act. Advocates of laws like this contend that children should not be permitted to make a life-altering, potentially irreversible decision, even on the advice of a treating physician and with the informed consent and approval of their parents. State Representative Robin Lundstrum, the lead sponsor of the SAFE Act, has argued that “these children need to be protected.” But an outright ban on medically necessary treatments will not protect these kids or reduce their risk of harm.

In fact, Arkansas’s new law will be counterproductive and self-defeating, and many professional medical associations opposed the bill on these grounds. The rate of attempted suicide among trans kids is tragically high. A 2018 survey commissioned by the American Academy of Pediatrics found that more than half of transgender teen boys had attempted suicide, as had nearly a third of transgender girls and two-fifths of nonbinary youths. Much of the risk comes from the stigma of being trans in today’s society—something this law will only exacerbate.

This is the epitome of an irrational, and hence unconstitutional, law. After the legislature’s almost instant override of his veto, Hutchinson quite properly denounced the legislature’s action as “a step way too far” that “puts a very vulnerable population in a more difficult position” and “sends the wrong signal to them.” (It also bears noting that the bills currently pending in many states, including those in Alabama and Oklahoma, are even worse than the SAFE Act, because, if enacted, they would threaten physicians with felony criminal charges for providing treatment to transgender minors or referring them for treatment. They would also render parents who seek and obtain such treatment for their children potential felons, in some cases directly under the proposed law and in others indirectly, for aiding and abetting the commission of a felony.)

Arkansas law contains plenty of other concessions to minors. Arkansas currently permits minors to seek full emancipation at 17, to lawfully engage in sexual intercourse with adults at 16 (and at 14, under a “Romeo and Juliet” law, with persons between 14 and 17), and to marry at 17. In other words, Arkansas permits minors to make important, potentially life-altering decisions before they reach the age of 18, including living independently of their parents or guardians and engaging in behaviors that could lead to parenthood. Arkansas’s flat denial of a minor’s ability, with their parents’ consent, to make basic decisions about gender identity simply cannot be reconciled with these other state policies.

The SAFE Act and pending state laws like it suffer from other serious constitutional infirmities as well—any or all of which should lead the federal courts to void them with alacrity.

For starters, the U.S. Supreme Court has held repeatedly that the due-process clause of the Fourteenth Amendment protects the right of fit custodial parents to oversee the upbringing of their children. Meyer v. Nebraska and Pierce v. Society of Sisters, reaffirmed recently in Troxel v. Granville, require the government to respect, rather than displace, parents’ reasonable decisions regarding how best to advance the welfare of their children. As the Supreme Court explained in Pierce, “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” The SAFE Act tramples this fundamental constitutional principle. In Arkansas today, fit custodial parents are now legally powerless to seek and obtain medically necessary care for their offspring.

Criminalizing a person’s medical status is also patently unconstitutional. In 1962, the Supreme Court invalidated a misguided California law that made it a crime to be “addicted to the use of narcotics.” In Robinson v. California, Justice Potter Stewart observed that “we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense.” The justices invalidated the law because “narcotic addiction is an illness,” not a crime. Condemning as felons physicians and parents who secure access to recommended treatment for trans kids comes perilously close to directly criminalizing the mere status of being a transgender minor—and is therefore unconstitutional under Robinson’s reasoning that a state cannot legitimately punish medical status.

Finally, although the Supreme Court has never squarely held that the Constitution guarantees a right to a medically necessary service or treatment (save for abortion and birth control), the Constitution’s guarantee of personal liberty encompasses protection for the security, integrity, and dignity of a person. Denying access to a medically necessary therapy compromises both the health and happiness of an individual.

As the Court stated in 1992’s Planned Parenthood v. Casey, matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” The ability to seek and obtain medical advice and treatment directly related to one’s gender identity plainly falls within the constitutionally protected zone of “choices central to personal dignity and autonomy,” and, accordingly, a state government cannot constitutionally deny access to medically necessary treatments for gender dysphoria.

The clear constitutional invalidity of laws like the SAFE Act should lead a constitutionally conscientious legislator, of whatever partisan or ideological stripe, to oppose those laws. Even if constitutional fealty isn’t a sufficient motivator, a prudent fiscal steward of scarce state funds should think twice before supporting a blatantly unconstitutional measure, because the Civil Rights Attorney’s Fees Award Act of 1976 requires a state government that loses a civil-rights case to pay both the attorney’s fees and court costs of the prevailing plaintiff. Futile efforts to defend anti-trans laws in federal court will drain a state’s treasury.

The Greek playwright Euripides sagely observed that “a bad beginning makes a bad ending.” State legislators should avoid a bad ending—invalidation of an unconstitutional state law, with the state’s taxpayers footing the entire bill for the federal-court litigation—by avoiding a bad beginning. Smart state governments should take care to avoid following Arkansas’s unconstitutional example.