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.