Conservative state lawmakers want to make it even harder for trans youth to access gender-affirming health care.
Lawmakers have introduced 11 new bills restricting gender-affirming health care for transgender minors in eight states so far this year, according to the American Civil Liberties Union's tracking of legislation that affects LGBTQ rights. Many of the bills allow families of trans minors, along with trans adults who received such care as minors, to sue health care workers for damages. Some of the bills' provisions also prohibit health insurance or public funds being used to pay for such care.
Gender-affirming care for transgender people can include surgery, hormone treatments, with more or less permanent results, and puberty blockers, which are reversible. All are included in many of the bills, even though surgery for transgender minors is very uncommon.
Dr. Stephanie Ho, a physician in Fayetteville, Arkansas, provides hormone treatments to trans youth. She told ABC News in 2021, "This is not done lightly on the patient or the parent side. This is not done lightly on the provider side." The American Medical Association's Journal of Ethics said in 2016 that hormone therapy is a "safe and effective way to improve quality of life and mental health outcomes for transgender adolescents."
Dr. Jack Turban, currently a fellow at Stanford University, said in an op-ed in the New York Times in 2020:
Just last month, our research team from Harvard Medical School and the Fenway Institute published a study showing that access to puberty blockers during adolescence is associated with lower odds of transgender young adults considering suicide. Despite fearmongering, these are safe medications that doctors have been using for decades for cisgender children who go through puberty too early. They also are reversible — if the medication is stopped, puberty will progress.
It is already challenging for transgender people of all ages to access gender-affirming care in the United States. A 2018 study found that the third most commonly reported barrier to such care was a lack of providers, often requiring people to travel many hours to one outside their area. In some cases, trans youth are placed on very long wait lists.
But lawmakers continue to suggest that such treatments are widespread and in need of serious regulation. Although bills introduced in previous years focused more on criminal penalties and inaccurately labeled parents' support for transition by their minor children "abuse," the anti-trans health care legislation of 2022 takes a different approach, experts say.
"I think the language has evolved in accordance with their experience, and I do think that may be why we're seeing less of the language that's about 'child abuse'," said Cathryn Oakley, senior counsel at the Human Rights Campaign. "I think that feels too shocking, particularly as it has been applied to parents, but also as it's applied to practicing medicine consistent with best practices and standards of care, that it just feels too far even for folks who would otherwise be sympathetic."
She added, "I think that's why they have taken a turn into seeing what they can do about public funding and what they can do about allowing litigation and how they can move this into a private cause of action and away from that idea of criminal penalties."
Lambda Legal senior attorney Sasha Buchert sees what the LGBTQ rights organization calls the "sue the doctor" approach in many of the bills introduced this year.
This includes Iowa bill H.B. 193, which contains a section on "judicial relief" that says someone harmed by a violation of prohibitions against gender-affirming care for minors can bring a civil action seeking damages "against any person responsible for the violation" for alleged psychological, physical, and emotional harm, as well as for attorney fees and other financial relief.
Under Kentucky's H.B. 253, punitive damages for violating the ban on care for minors can be based on pain and suffering, loss of reputation, loss of income, and loss of a marriage and shared parenthood.
Oklahoma bill H.B. 3240 prohibits physicians from providing gender-affirming care to trans youth under age 18 as well as from referring them for such care. It provides that a person can seek financial relief in court for violations up to two years after the alleged violation. A trans minor can bring an action through a parent or friend or as an adult up to 20 years after reaching age 18.
The Kentucky and Oklahoma bills also include provisions regarding insurance coverage of gender-affirming care.
The Kentucky legislation requires that no public funds be used to cover gender-affirming care and that any amount paid by an entity or person not be exempt from taxation. No facility owned by the county, local, or state government can provide such care. It also has a provision on Medicaid that reads, "The Department for Medicaid Services and any managed care organization contracted to provide Medicaid benefits pursuant to this chapter shall not reimburse or provide coverage for gender transition."
Oklahoma's bill prohibits insurance coverage of transition care for people under age 18; no health benefit plan in the state may reimburse the cost of any such treatments.
Mississippi's S.B. 2728 also prohibits the use of public funds to pay for gender-affirming care, including reimbursement through the state's Medicaid program. It states, "A person may assert an actual or threatened violation of this act as a claim or defense in a judicial or administrative proceeding and obtain compensatory damages, injunctive relief, declaratory relief or any other appropriate relief."
Lambda Legal's Buchert said the myriad requirements and methods of enforcement are probably intended to score as many ideological points as possible but also make it harder for lawyers to bring lawsuits against the bills should they pass.
"You're arguing that it's unconstitutional on all points. It does make it more difficult ... I do think these bills are put together with an eye towards litigation," she said.
Halfway through 2021, the Human Rights Campaign released a report with a headline that highlighted the "Unprecedented Number of States Enact[ing] Record-Shattering Number of Anti-LGBTQ Measures Into Law," making the year worst on record for anti-LGBTQ bills in "recent history." At least 35 of the bills that had been introduced by that point would have stopped transgender young people from receiving gender-affirming care; only one, in Arkansas, was enacted, after the Legislature overrode Republican Gov. Asa Hutchinson's veto in April. A federal judge halted it from going into effect in July.
Buchert said that the bills introduced in 2022 are clearly unconstitutional: "To deny the same care that other folks are able to access — people need hormone care for all kinds of reasons and other care for all kinds of reasons — and to choose to single out trans people specifically for disfavored treatment is unconstitutional."
Published with permission of The American Independent Foundation.
