ACT

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Fordham Undergraduate Law Review

Volume V, Issue 1, Fall 2021

undergradlawreview.blog.fordham.edu

NOTE

WHEN LEGISLATORS PLAY DOCTOR: ARKANSAS’S BAN ON GENDER-AFFIRMING HEALTHCARE FOR TRANSGENDER YOUTH

Ahan Dhar* 1

Gender-affirming healthcare is a medically accepted and lifesaving process for transgender people, but it’s legality in the United States, especially for transgender youth, remains uncertain. In April of 2021, Arkansas passed the Save Adolescents from Experimentation (SAFE) Act that outlawed gender-affirming healthcare for transgender minors, arguing that its risks outweigh its benefits. This Note examines the feasibility of a genderaffirming healthcare ban using the SAFE Act. Specifically, this Note reviews the Act in the context of the United States Constitution and the Affordable Care Act (ACA). This Note will first determine the key components of the Act and its central argument. This will be followed by an examination of Brandt v. Rutledge (2021), a District Court case brought by the American Civil Liberties Union in opposition to the SAFE Act. This Note will analyze its counts against the Act in reference to the First and Fourteenth Amendments to the Constitution. This Note will then discuss the antidiscrimination clause of the Affordable Care Act and its implications for the SAFE Act. This Note will address Bostock v. Clayton County (2020), a United States Supreme Court case that established the protection of transgender identities under the term “sex” in the Civil Rights Act, and how that could render the SAFE Act discriminatory under the ACA. Ultimately, this Note argues that the SAFE Act is unlawful under both the U.S. Constitution and the ACA, which should lead to the revocation of the Act and the protection of gender-affirming healthcare for transgender youth.

I. INTRODUCTION....................................................................................2 II. ACT 626OVERVIEW............................................................................3 III. LAWSUIT OVERVIEW...........................................................................4 A. Count One: The Fourteenth Amendment ...............................5 B. Count Two: The First Amendment .........................................6

1* B.A. Candidate for Communication and Culture and French Studies, Fordham College at Rose Hill, Class of 2023.

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