As Democratic-led states try to enact safeguards on treatments for gender dysphoria, policy analysts predict that families seeking gender-affirming care for their children will likely encounter a fractured legal and health-care system in 2024.
According to the Movement Advancement Project, states have increased their bans on hormone therapy, puberty-blocking medications, and other treatments for transgender minors this year, with 22 states then outlawing at least one type of gender-affirming treatment.
Similar to the movements of patients seeking abortion care despite state restrictions on the procedure, the restrictions have forced people to travel to different states to access treatment. According to the Williams Institute at the University of California, Los Angeles Law School, there are laws protecting gender-affirming treatment in nine different states as well as California and Massachusetts.
States like Minnesota and New York passed laws in 2023 restricting the ability of other states to use child security law enforcement actions to bar residents from receiving gender-affirming treatment there. A law prohibiting companies in Washington State from “complying with a lawsuit, subpoena, court order, or another civil or criminal legal process” related to gender-affirming care or any other health care that is permitted in the state.
A federal conflict has already been sparked by the Washington rules. In response to a request for details on potential gender-affirming treatment for Texas children in Washington, the Seattle Children’s Hospital sued the Texas attorney general on December 7.
Political parties want to strengthen their outposts before the election year, so analysts, researchers, and advocacy groups with a focus on transgender policy predict that more states will seek protection statutes in 2024. However, they also claim that the extent to which states participate in the effort depends largely on how the legal process turns out as well as whether or not states are willing to pass legislation that could result in additional jurisdictional disputes over states’ right to regulate medical procedures.
Heron Greenesmith, assistant director of policy at the Transgender Law Center and an adjunct law faculty member at Boston University, said that because this is so new, states are actually working to see what will really work to protect the people who live there as well as those who need to travel or move to access care.
Considering Defenses
According to analysts and experts, there will be significant discussion about gender-affirming care for minors in 2023, and it will undoubtedly continue in the following months.
In the 2024 legislative session, typically Democratic states that have not yet adopted a policy stance on gender-affirming care will do so, according to Sandy Dornsife, policy analyst at MultiState, an organization that tracks policy changes among state and local governments.
Whether more “purple” or “swing” states, such as Michigan, Pennsylvania, Virginia, and Wisconsin, “choose to act or wait to see how the courtroom challenges turn out,” according to Dornsife, is an excellent question.
The Sixth and Eleventh circuits of the US Court of Appeals have permitted Kentucky, Tennessee, and Alabama to impose treatment restrictions on children under the age of 18, despite the American Medical Association and American Academy of Pediatrics defending the provision of gender-affirming health care for younger people. An en banc hearing from an order that completely blocked Arkansas’ moratorium has been approved by the Eighth Circuit.
In response, some Democratic-led states have passed legislation enacting safeguards for gender-affirming care. For instance, laws requiring specific programs to offer comprehensive coverage for procedures were passed in Maine, Maryland, and Nevada.
If a parent or guardian permitted that child to receive gender-affirming health care, the governors of Minnesota and New York each signed into law rules prohibiting compliance with another state’s order to remove the child from the state.
A similar law passed this year in Oregon states that, in part, any legislation from another state is against Oregon law if it “authorizes someone to take a civil or criminal action against someone” who has received, provided, or assisted in providing gender-affirming solutions or reproductive health care.
This comes as Republican-led states, including Florida, have passed laws governing disputes over child custody that show preference for parents who object to a minor receiving gender-affirming care, even if that care is being provided outside of the state.
Some states “may seek to enshrine new rights within their own state law to protect themselves from any federal actions on this issue” as the 2024 elections draw near, according to Dornsife.
“Unknown Territory”
Interstate legal disputes are raised by laws that protect one state from another state’s enforcement actions, according to policy analysts, and they may ultimately end up before the US Supreme Court.
According to Elana Redfield, national policy director at the Williams Institute, states may gain a better understanding of how these federal conflicts might develop if the Supreme Court rules on any of the state restrictions that are already up for judicial issue.
It will be crucial to see, according to Redfield, “how the courts will handle the vast body of evidence supporting access to gender-affirming care and contrasting that with the pretty limited evidence the states are using.”
However, state laws that forbid adherence to the law enforcement actions of another state have the potential to “set a bad precedent,” according to Thomas Jipping, senior legal fellow at the conservative think tank Heritage Foundation.
Jipping said, “We’re kind of in unknown territory here.” States should respect one another’s legal systems and fully support the legal actions of other states.
Alejandra Caraballo, a clinical instructor at Harvard Law School’s Cyberlaw Clinic who has experience litigating LGBTQ+ cases, acknowledges that the shield laws passed by states so far “are not entirely ideal.”
According to Caraballo, in cases conducted under express child welfare rules, the child’s physical location determines the jurisdiction, making it possible for them to bring legal action against children even if they leave the state.
“Flow of Care”
Increasing pressure on health providers in states where gender-affirming treatment is protected is the overall result of litigation within or between states, according to analysts, which ultimately slows treatment for transgender children and adults.
Human Rights Campaign spokesperson Delphine Luneau stated, “We know of many families in states that have enacted bans in the past two years who are struggling with the question of whether they need to move,” even though there aren’t yet any comprehensive data on the number of transgender individuals traveling to other states to receive care.
According to statistics from the Williams Institute, more than 105,000 transgender children between the ages of 13 and 17 lived in states that forbid access to gender-affirming treatment.
In Massachusetts, where Caraballo, a trans woman, had to wait up to six months to see her primary care provider, this increased demand had an effect on her.
A large part of it is caused by a large influx of transgender individuals leaving many of these red states, according to Caraballo.
States may increase funding for community health clinics and others that provide this treatment in addition to shield laws, according to Caraballo. For health personnel moving from various states that have outlawed abortion care or gender-affirming care, or both, state medical boards can also “potentially speed or make a more streamlined process,” according to Caraballo.
“If the treatment is even remotely difficult to access due to the excessive demand, the legal protections are meaningless,” according to Caraballo.
