“Gender-Affirming Care is Life-Saving Care”: Anti-Trans Legislation Endangers Youth

Thumbnail image description: A woman with purple hair holds up a sign saying “Trans & GNC Youth: We Love You. We See You. We Stand with You.” The sign has a glittery gold border. /end image description

The last year has seen a “torrent” of anti-trans legislation in the US, with over 100 bills introduced or passed in at least 41 states seeking to limit the rights and liberties of transgender people, particularly trans youth. A lot of legislation seeks to exclude trans youth from athletics. Some bills limit access to public restrooms, changing rooms, or showers; restrict updates to gender markers on identity documents; or mandate anti-LGBTQ school curricula.

Other bills would criminalize gender-affirming health care for minors, and discourage insurance companies from covering such care for adults. Last March, Arkansas passed HB 1570 (now Act 626), and similar bills are currently under consideration in other states. Families who can afford the expense are preparing to flee their homes in Arkansas, or other states considering laws like Act 626. 

However, many trans people lack the means to relocate or receive out-of-state treatment. Statistically, transgender people of color (especially Black people) are disproportionately likely to experience unemployment, extreme poverty, and homelessness, compared to their white or cisgender counterparts. Now, because of Act 626, most trans people in Arkansas have lost access gender-affirming health care.

If gender-affirming health care is available, pubescent trans children will often take “puberty blocker” medications to delay changes for a few years – medications that cisgender children have been safely using for decades. Older teens might take estrogen or testosterone, but nearly all must wait until adulthood for any surgical interventions. Before puberty, trans children only transition “socially,” with gender-affirming clothing and language, but no hormones or blockers. 

For teens who have struggled with gender dysphoria, like 15-year-old Sabrina Jennen, accessing gender-affirming health care has enabled them to thrive. Sabrina says that receiving gender-affirming care made her “happy for the first time since I can remember. I started playing the acoustic guitar, and I’m looking forward to college. I know first-hand that gender-affirming care is life-saving care. I can’t imagine going back, or being denied care that my doctors and parents agree that I need.”

Sabrina is one of several plaintiffs in Brandt et al. v. Rutledge challenging the constitutionality of Arkansas HB 1570/Act 626.The complaint alleges that the health care ban violates the Fourteenth Amendment’s Equal Protection Clause because it prohibits “certain medical treatments only for transgender patients and only when the care is ‘related to gender transition,’” thereby discriminating “on the basis of sex and transgender status.” 

Plaintiffs further allege that, “by preventing parents from seeking appropriate medical care for their children when the course of treatment is supported by the child and their doctor, the Health Care Ban interferes with the right to parental autonomy guaranteed by the Due Process Clause.” In addition, the Ban allegedly “violates the First Amendment by prohibiting healthcare providers from referring their patients for medical treatments that are in accordance with the accepted medical standards of care to treat gender dysphoria.”

Now a new subchapter in the Arkansas Code (at §§ 20-9-1501 et seq.), Act 626 prohibits medical professionals from providing the same treatments to trans youth that cisgender youth receive, or referring trans youth to receive gender-affirming care out of state. The act bans all state funding or insurance coverage for gender-affirming health care for trans (but not cis) minors, and allows private insurers to refuse to cover gender-affirming care for trans adults. 

Act 626 also eliminates tax deductions for any premiums paid for health insurance that covers gender transition, or for the provision of gender-affirming health care. See AR Code § 20-9-1502-3 (forthcoming). The act’s enforcement operates by creating a cause for professional discipline, and by empowering parties in judicial or administrative proceedings to assert “an actual or threatened violation” of § 20-9-1501 et seq. as a defense or claim for relief. See AR Code § 20-9-1504 (forthcoming).

HB 1570/Act 626 claims, contrary to empirical data, that the “risks of gender transition procedures far outweigh any benefit at this stage of clinical study on these procedures.” In reality, the greater risk to Arkansas youth is their legislature’s decision to outlaw evidence-based gender-affirming treatment, which is far less experimental than Act 626 maintains. “Every mainstream medical association,” according to the ACLU, “agrees that gender-affirming care is medically necessary and appropriate care for the transgender youth who need it.” 

Organizations including American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Medical Association, along with individual providers, oppose laws like Act 626. Health care professionals warn that trans health care bans will interfere with the physician-patient relationship and harm trans youth.

Two studies agree that trans children who are supported in socially transitioning have similar mental health to cisgender children, while children whose genders were not affirmed experience increased anxiety and depression. 

If the other states considering trans health care bans follow Arkansas’s lead, an estimated 45,100 trans youth will lose access to gender-affirming health care. For many trans teens and young adults, a ban in their state could mean suddenly discontinuing treatments they have been receiving for years. 

The DOJ recently filed a statement of interest in Brandt in support of the plaintiffs’ Motion for Preliminary Injunction. The DOJ’s statement articulates its “view that the Equal Protection Clause of the Fourteenth Amendment bars the State of Arkansas from discriminating against transgender minors.” The statement references President Biden’s Executive Order No. 13,988, which recognizes a right to “access healthcare . . . without being subjected to sex discrimination.”

However, it will take more than a few lawsuits or executive actions to secure equal rights for trans people. The proliferation of anti-trans bills appears to be part of a coordinated effort, more organized and better-funded than its opposition. State bills across the country use similar language from model legislation by anti-LGBTQ groups like Family Policy Alliance, and rely on similar misinformation about transgender people and the scientific community’s current understanding of gender. 

In response, we need to organize to prevent more bills like HB 1570 from passing in other states. We should keep a particularly watchful eye on Louisiana, Missouri, North Carolina, South Carolina, Tennessee, and Texas, where “parents of trans youth could be penalized or even criminalized for encouraging or helping their children access gender affirming healthcare.”

Further reading:

Julia Serano, Detransition, Desistance, and Disinformation: A Guide for Understanding Transgender Children Debates, Medium (Aug. 2, 2016), https://juliaserano.medium.com/detransition-desistance-and-disinformation-a-guide-for-understanding-transgender-children-993b7342946e.

Outlawing Trans Youth: State Legislatures and the Battle over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163 (2021) (also available online).