Trans kids face enough obstacles already.

Photographer: Paul J. Richards/AFP/Getty Images

Over a veto by the state’s Republican governor, Arkansas has passed a bill, known as the SAFE Act, prohibiting range of gender transition medical treatments for people under 18, with some minor exceptions. It covers hormone therapies known as puberty blockers that can prescribed to transgender children to inhibit the sex hormones that drive the onset of puberty.

The law is morally repugnant, overriding the decisions of medical professionals, parents, and transgender teens and kids. Nevertheless, forthcoming legal challenges, which the ACLU has said it will bring, face an uphill battle.

States ordinarily have the authority to prohibit medical treatments. There is a federal statute, Section 1557 of the Affordable Care Act, that prohibits sex-based discrimination in a healthcare program that gets federal funds. But that provision may not be enough to stop a state from outlawing treatments of which it disapproves — especially if those same treatments would not be prescribed for cisgender children.

Thus, in a weird and counterintuitive twist, state law barring transgender girls from participating girls’ sports are likely to be struck down by the courts as unlawful; but laws prohibiting giving hormone therapy to transgender kids may be upheld.

Understanding why requires some background. In 2012, California passed a law banning so-called gay conversion therapy aimed at kids under 18. The ban was challenged by supporters of the scientifically disreputable “therapy” on the ground that it violated freedom of speech and the free exercise of religion. The ban was ultimately upheld by the U.S. Court of Appeals for the Ninth Circuit, which determined that state was within its legitimate authority to prohibit a medical treatment it deemed harmful. (The Third Circuit subsequently ruled similarly, and the 11th Circuit went the other way, leading to a circuit split that the Supreme Court may ultimately address.)

In light of these rulings, courts might very well hold that Arkansas can ban any medical treatment it doesn’t like. The only limitation would be that the ban isn’t motivated by an irrational animus or hatred against one group of citizens.

The ACLU could argue that the SAFE Act can only be explained by transphobia. But Arkansas could prevail by providing non-hateful reasons for the law, such as an abundance of caution about the science of gender identity or an interest in protecting young people. The state would certainly point out that it has not banned all gender transition therapies, only gender transition therapies for people under the age of 18.

The ACLU’s next argument would likely be that prohibiting gender transition therapies constitutes discrimination on the basis of sex in violation of federal health care law. In the 2020 case of Bostock v. Clayton County, the Supreme Court interpreted the Title VII prohibition on workplace discrimination “because of sex” to cover discrimination against trans people. The ACLU’s argument would be that the SAFE Act similarly discriminates on the basis of sex by prohibiting hormone therapies for transgender people.