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America’s Future Files Brief in Support of the SAFE Act To Protect Children

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On Tuesday, November 14, 2023, America’s Future filed an Amicus brief in the United States Court of Appeals for the Eighth Circuit in Brandt, et al., v Tim Griffin, in his official capacity as Arkansas Attorney General (AG), et al., Dkt. No. 23-2681, a case regarding the constitutionality of Arkansas’s Save Adolescents from Experimentation (SAFE) Act.

The SAFE ACT prohibits physicians and other licensed professionals from rendering gender transition medical treatment to any individual under 18 years old, including disfiguring gender-altering surgeries.  It also forbids prescribing cross-hormone drugs to minors that are used to artificially draw out physical features of the opposite gender, as well hormone-blocking drugs used to prevent the onset of puberty. It was codified into law in April 2021, after the Arkansas state legislature voted to override a veto by then Governor Asa Hutchinson.

As discussed in the brief, almost immediately after passage, the SAFE Act was challenged in federal court by “a coalition of plaintiffs, including physicians wishing to perform ‘gender transition’ procedures for profit, and minor plaintiffs believing themselves to be ‘transgender,’ whose parents sued on their behalf as ‘first friends.’” The lower court held in favor of the plaintiffs – appellees, ruling that the Act violates the Fourteenth Amendment Equal Protection Clause for discriminating on the basis of sex and discriminating against transgender people; that the Act violates due process of law for infringing on the “fundamental liberty interest” of the minor plaintiffs’ parents in directing the medical treatment of their children; and it violates the First Amendment Free Speech Clause by preventing doctors from giving referrals.

The lower court wrongly decreed that the SAFE Act is unconstitutional and its reasoning, as described in the brief, was “schizophrenic,” “hostile to religion,” “inconsistent,” “unscientific,” and in pursuit of a political agenda, 

In accord with the dominant political narrative of the cult of ‘transgenderism,’ the district court found no constitutionally permissible justification for Arkansas to protect its children, none of whom are capable of giving their informed consent, from radical treatments from monetarily incentivized physicians. The district court sought to build on a handful of narrow, hotly disputed judicial decisions to break new constitutional ground, oblivious to the way in which its decision would result in both the destruction of the lives of individual children and the undermining of the foundations of our nation. 

Our brief makes clear that the lower court’s holding is untenable and plainly incompatible with the law, not to mention science and morality.  Not only does the lower court aim to usurp the authority of the duly elected state legislative branch, but it also calls for “federal courts [to] believe that, whenever a case raises any issue related to ‘sex’ or ‘gender,’ the equal protection and due process clauses are sufficiently elastic to provide them constitutional cover to reach whatever outcome that they may personally prefer. They do not.”

To provide additional insight for this court to consider when reviewing the lower court’s decision, we frame the issues, as follow:

Did the Framers and ratifiers of the Fourteenth Amendment in 1868 craft the equal protection and due process clauses to empower federal judges to override state legislatures acting to prevent physicians from enriching themselves by impairing the sexual and physical development of boys and girls through the normal endocrine maturation process, as well as by castrating boys and removing the healthy breasts of girls, and in other ways by permanently mutilating, disfiguring, and rendering untold numbers of children reproductively sterile? 

We, at America’s Future, urge the Eighth Circuit to reverse the lower court’s decision and confirm that Arkansas’s SAFE Act is lawful, just as the duly elected state legislators intended.

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