Bills banning gender-affirming health care advance across the nation

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LGBT Health rainbow cross with doctors

States are being challenged on new anti-LGBTQ laws

A record amount of anti-LGBTQ legislation has been introduced in the U.S. this year. And at the forefront of the legal confrontation is a battle on gender-affirming care. 

The American Civil Liberties Union (ACLU) has been “mapping attacks” on LGBTQ rights in the state legislatures. As of May 10, 2023, the U.S. has 474 anti-LGBTQ bills, 125 of which are targeting health care that affects transgender and nonbinary youth. 

Over half of the states in the country — 33 in particular — have introduced at least one anti-LGBTQ bill focused on health care. Sixteen have been officially passed into law. 

Although these bills, as they advance, continue to receive governors’ signatures of approval, they are receiving push back from a large portion of the population. Parents, doctors, families of LGBTQ youth, and even the Federal Government are challenging some of these laws in court, claiming the laws to be unjust and discriminatory. 

On April 26, the Justice Department filed a federal lawsuit against Tennessee Senate bill SB1, which makes it unlawful to provide or offer to provide certain types of medical care for transgender minors who are diagnosed with gender dysphoria. The lawsuit claims SB1 violates the Fourteenth Amendment’s Equal Protection Clause. 

“SB1 violates the constitutional rights of some of Tennessee’s most vulnerable citizens,” U.S. Attorney Henry Leventis for the Middle District of Tennessee said. “Left unchallenged, it would prohibit transgender children from receiving health care that their medical providers and their parents have determined to be medically necessary. In doing so, the law seeks to substitute the judgment of trained medical professionals and parents with that of elected officials and codifies discrimination against children who already face far too many obstacles.”

On a state level, similar legal battles are brewing.

In Oklahoma, Montana, and Florida, LGBTQ families and doctors have banded together with organizations such as the ACLU and The Human Rights Campaign (HRC) to challenge identical laws. 

In Montana, the ACLU, the ACLU of Montana, Lambda Legal, Perkins Coie, two families with transgender youth, and two medical providers who work with transgender youth have teamed up in filing a lawsuit that challenges the state’s Senate bill SB99, which was signed into law by Governor Gianforte this April. The plaintiffs charge the law with violating their rights under the Montana Constitution, including the right to equal protection and the right of parents to direct the upbringing of their children.

Plaintiffs include Jessica and Ewout van Garderen and their 16-year-old transgender daughter Scarlet, Molly and Paul Cross and their 15-year-old transgender son Phoebe, Dr. Juanita Hodax of Community Medical Center, and Dr. Katy Mistretta of Bozeman Creek Family Health.

“I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” plaintiff Phoebe Cross, a 15-year-old transgender boy said. “Just living as a trans teenager is difficult enough; the last thing me and my peers need is to have our rights taken away. There were many things I hoped my elected officials would achieve; this regression in human rights is not one of those things. The blatant disrespect for my humanity and existence is deeply unsettling.”

Transgender youths and their families in Oklahoma are feeling similar upsets. In a lawsuit filed by the ACLU, the ACLU of Oklahoma, Lambda Legal, the law firm Jenner & Block LLP, a group of families with transgender adolescents, and medical providers who support trans youth assert that the state’s Senate bill SB613 unjustly and unfairly targets them. Like Tennessee’s federal lawsuit, these Oklahomans claim SB613 violates their rights under the Equal Protection Clause of the 14th Amendment. 

“Based on nothing but animus towards transgender people and a campaign of misinformation and disinformation, Oklahoma officials have decided to prohibit the provision of necessary, safe, and effective evidence-based medical care for trans adolescents in Oklahoma. These actions risk the health, well-being, and very lives of trans youth in the Sooner State,” Omar Gonzalez-Pagan, Counsel and Health Care Strategist at Lambda Legal said. “We will not stand idly by as discriminatory laws endanger our community. Trans youth in Oklahoma and elsewhere deserve no less. We are proud to represent, alongside our co-counsel, these five courageous families and a caring doctor who together are standing up for their rights.”

SB613 bans all forms of gender-affirming medical treatment for transgender youth and threatens providers who violate the law with a felony conviction and discipline from their professional licensing boards. Deeming this unconstitutional, the plaintiffs are asking the court to block the law’s enforcement. 

“SB613 is an unconstitutional law that singles out transgender adolescents and discriminates against them and their families by banning necessary medical care and treatment,” Laurie Edelstein, a partner at Jenner & Block said. “We are asking the court to block enforcement of SB613 and protect the fundamental rights of transgender adolescents and their families to access appropriate medical treatment so that transgender adolescents have the same opportunity as their peers to thrive in their families, with their friends, in school, and in their communities.”

Florida families also filed a motion asking courts to halt the enforcement of their state’s medical bans, which were adopted by Florida’s Boards of Medicine and Osteopathic Medicine. But unlike Oklahoma and other states that are asking courts to block laws before they are enacted, these Florida families are seeking to halt the already enacted gender-affirming care ban while their case proceeds. 

The plaintiffs are already facing repercussions of Florida’s health care ban.

Parents told the federal district court in their motion for a preliminary injunction that the ban, which went into effect in March, is causing their children significant harm through canceled doctors appointments and denials of treatment.

“All I want as a parent is to make sure my son is as healthy and happy as he can be. I can’t understand why the state would interfere with that by making it impossible for me to get him the medical care he needs,” Gloria Goe, who is challenging the ban on behalf of herself and her son Gavin, said. “Gavin has known he is a boy from a young age. While it took us time to understand what that meant, consulting with our trusted pediatrician helped us to be able to support him. That was absolutely the right path as we’ve watched Gavin grow into a bright, social, and happy child.”

“Our pediatrician has now recommended that Gavin meet with a pediatric endocrinologist to evaluate next steps, but the appointment I made for him was canceled.”

Goe continued, “Our pediatrician has now recommended that Gavin meet with a pediatric endocrinologist to evaluate next steps, but the appointment I made for him was canceled and this ban keeps anyone in the state from ensuring he gets all the medical care he needs. The state’s policy banning the care my son needs has taken away my right to make the best, most informed decision for him and his health.”

Other families involved in the lawsuit are also being denied medical treatment recommended by children’s doctors. The denial is leaving plaintiff parents feeling stuck.  

“As a parent, it’s my job to protect my daughter from harm and make sure she has everything she needs to live a healthy life. But I feel powerless in the face of this ban, which has taken away my ability to get her the healthcare she needs,” Linda Loe, who is challenging the ban on behalf of herself and her daughter Lisa, said. “Our pediatric endocrinologist confirmed in March that Lisa needs to start puberty blocking medication to maintain her health, but the clinic has told us they can’t provide it because of the state’s ban.”

Loe continued, “Lisa was such a happy-go-lucky kid, but I have seen the devastating toll her gender dysphoria has taken on her health and know that she desperately needs to begin treatment. I feel as if we are racing against the clock to find a way to get her the care she needs.”

In addition to the motion for a preliminary injunction, plaintiffs filed an amended complaint adding three additional families to the lawsuit. The now seven parents challenging the ban on behalf of themselves and their children argue that the policy unlawfully strips them of the right to make informed decisions about their children’s medical treatment and violates the equal protection rights of transgender youth by denying them medically necessary, doctor-recommended healthcare.

“Florida has crossed a dangerous line by letting this ban go into effect,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “Parents, not the government, should be in charge of directing their children’s healthcare. The state of Florida is interfering with family privacy and decision-making, and children and parents are suffering because of it.”