By Chloe Reichel
State legislation blocking trans youth from accessing gender-affirming care puts kids at risk, thwarts physician autonomy, and potentially violates a number of federal laws, write Jack L. Turban, Katherine L. Kraschel, and I. Glenn Cohen in a viewpoint published today in JAMA.
So far this year, 15 states have proposed bills that would limit access to gender-affirming care. One of these bills, Arkansas’ HB1570/SB347, already has become law.
This legislative trend should be troubling to all, explained Cohen, Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. In an email interview, he highlighted “how exceptionally restrictive these proposed laws are,” adding that they are “out of step with usual medical, ethical, and legal rules regarding discretion of the medical profession and space for parental decision-making.”
Turban, child and adolescent psychiatry fellow at Stanford University School of Medicine also offered further insight as to the medical and legal concerns these bills raise over email.
Chloe Reichel: Can you give a brief overview of the current rise in legislation targeting gender-affirming care for trans youth?
Jack L. Turban: Over the past several years, politicians have introduced a range of unscientific bills targeting transgender people. Many may remember the “bathroom bills” that would have prohibited transgender people from using restrooms that match their gender identity, on the false premise that trans-inclusive bathroom policies would increase sexual assault rates. In reality, research has linked trans-inclusive bathroom policies to lower rates of sexual assault against transgender people and no increase in sexual assault against the general population.
This year, politicians have offered two different types of bills targeting transgender people: those that aim to ban transgender students from competing on sports teams that match their gender identity, and bills that aim to criminalize the provision of gender-affirming medical care for transgender adolescents (despite opposition from all relevant major medical organizations, including the American Medical Association, the American Academy of Pediatrics, the American Psychiatric Association, and the American Academy of Child & Adolescent Psychiatry). These bills targeting medical care for transgender adolescents have been introduced in at least 15 states.
Many of these healthcare bills are extreme. Alabama’s HB1, for example, proposed punishing physicians with up to 10 years in prison if they were to provide gender-affirming healthcare to transgender adolescents. It also would have forced school personnel to out transgender youth to their parents against their will, which could result in homelessness and physical assault victimization among transgender youth with unaccepting families.
CR: From a medical perspective, what issues do these bills raise? What effects will they have on medical professionals providing gender-affirming care?
JLT: Gender-affirming medical care for transgender adolescents has been consistently linked to better mental health outcomes, including lower odds of suicidality. It’s vital that physicians be able to work with young people and their families to decide what type of medical care is most likely to set them up for happy, healthy lives. For many families, taking away gender-affirming medical care can be extraordinarily dangerous and even life-threatening. A recent qualitative study asked parents about how these bills would impact them, and one parent put it plainly, “this could mean death for my child.”
Prior to the introduction of these bills, access to gender-affirming medical care was already difficult for families. Many clinics have waiting lists that are a year or longer. A recent study from our team published in the journal Pediatrics found that only 2.5% of transgender people who wanted pubertal suppression, for instance, were able to access this intervention. These bills, whether they pass or not, are likely to intimidate physicians into not providing gender-affirming healthcare, making access to care even more difficult for families.
In addition to the direct impact of these bills (i.e., loss of healthcare), research also shows that the national conversations we have around these bills impact mental health. Transgender young people are hearing powerful politicians tell them that they’re confused and that their identities are invalid. At the same time, they’re being told that they’re a risk to other people in bathrooms, and that they’re a threat to their peers in school sports. These transphobic and stigmatizing messages impact kids dramatically and lead to anxiety and depression. As someone who sits with these young people, I can tell you that the negative impacts on mental health and self-esteem are often pervasive and difficult to undo.
CR: From a legal perspective, what laws might these bills violate?
I. Glenn Cohen: We should expect to see a number of challenges to these laws.
The most assured, I think, is that they violate Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), age, or disability in covered health programs or activities. The Biden administration has taken the position, which also accords to the best reading of the text, in my opinion, that this protects transgender people from discrimination.
Second, there may be arguments that they violate the Equal Protection Clause of the 14th Amendment of the United States Constitution. The Supreme Court held in Bostock v. Clayton County that the language “because of such individual’s … sex” in Title VII, governing employment, protects transgender individuals. They have not yet determined whether the Equal Protection clause, which has been read to provide constitutional protection on the basis of sex, similarly applies to transgender individuals
Third, in states with state constitutional equal protection clauses, challenges may be brought under those clauses.
Finally, some litigants have argued that individuals with gender dysphoria qualify as disabled within the meaning of the Americans with Disabilities Act and the Rehabilitation Act. These challenges have thus far had a mixed track record in terms of success, but some transgender individuals might challenge these laws on the disability theory.
There may be other theories.
CR: How can health care professionals influence these legislative debates and support transgender youth?
JLT: The legislative debates around these bills have been full of misinformation. Politicians have made false claims ranging from gender-affirming care leading to worse mental health outcomes (research consistently shows care is linked to better mental health outcomes) to the incorrect assertion that most transgender adolescents will grow up to identify as cisgender if not provided with gender-affirming care (all existing research suggests it’s rare for transgender adolescents who have reached puberty to later identify as cisgender).
We desperately need physicians and experts in the health of transgender adolescents to reach out to state lawmakers and provide them with accurate information. Somewhat astonishingly, the evidence showing that gender-affirming medical care improves mental health has been largely missing from many of these debates, and many politicians don’t seem to be aware that all major medical organizations oppose these bills.
CR: How can legal professionals influence these legislative debates and support transgender youth?
IGC: One way is through litigation, perhaps under the theories discussed above. Another is just by highlighting how exceptionally restrictive these proposed laws are and out of step with usual medical, ethical, and legal rules regarding discretion of the medical profession and space for parental decision-making.
For example, Oklahoma’s Senate Bill 676 would make it a “felony punishable by imprisonment” for a parent to obtain what the statute calls “gender reassignment medical treatment” for a person under the age of 18, for a physician to perform it for someone under age 21, or to undergo it yourself if you are under the age of 21.
It seems strange to me that someone committed to conservative principles, that typically endorse significant discretion on the parts of parents in rearing decisions as well as control of one’s body should champion such a regressive law. This strikes me as a kind of “moral panic” and/or playing games to gin up an electorate than a coherent reflection of true principles. Liberals and conservatives alike should be aghast at these laws.