US
Transgender minors have a right to gender-affirming care, Justice Dept. warns states
A letter to state attorneys general hints at legal action if restrictions continue to pass.
This story was originally published by The 19th
The Justice Department said last week that states seeking to block transgender minors from accessing gender-affirming care may be violating federal law — and signaled that it is prepared to pursue legal action or support existing litigation against states seeking such restrictions.
In a letter to all state attorneys general, sent on Transgender Day of Visibility (TDOV), the Department of Justice (DOJ) asserted that state laws preventing trans minors from accessing gender-affirming care — by blocking parents or guardians from following a medical professional’s advice, as states like Texas and Arkansas have attempted — may infringe on the 14th Amendment’s equal protection and due process clauses.
“It’s probably the most powerful and progressive step we’ve seen on transgender rights ever from the federal government, at least today,” said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School. “But the attorney general did not sign it.”
He said that while the letter, signed by Assistant Attorney General Kristen Clarke — who heads the DOJ’s civil rights division — is powerful, it would send a stronger signal with Attorney General Merrick Garland’s signature. A DOJ spokesperson said over email that agency divisions sending letters at the AAG level is a fairly typical practice.
Experts say that the letter effectively warns states that the federal government is unlikely to stand by as bills that restrict transgender minors’ gender-affirming care are signed into law.
At least 16 states have attempted to pass legislation this year barring gender-affirming care for trans youth, according to the Equality Federation. While these efforts have often failed, Arizona last week became one of only a few states that has actually signed a bill into law to restrict gender-affirming care. Arizona’s bill, which goes into effect next year, only bans surgeries for minors — procedures that are not recommended or typically administered for patients under 18.
After Texas failed last year to pass legislation that would block gender-affirming care, the state’s executive branch has taken additional efforts to criminalize such treatments. State Attorney General Ken Paxton has asked the Texas Supreme Court to allow investigations into families seeking transition-related care for their children, after the governor instructed the state’s child welfare agency to investigate such cases as child abuse. At least two Texas clinics halted gender-affirming care in response to the state’s call for investigations.
Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR) who has been representing LGBTQ+ rights cases for nearly 30 years, said in an email that the letter, and its underlying message that the DOJ is prepared to take action, “is incredibly encouraging.”
To Minter, the agency’s message is clear: If states enact laws that deny trans youth medically necessary gender-affirming care, the DOJ is prepared to take action through its own litigation or to support outside litigation.
“This is extremely important — one of the strongest actions short of litigation itself that DOJ can take,” he said.
In its letter, the DOJ cites Bostock v. Clayton County, the landmark 2020 Supreme Court case that found LGBTQ+ people are protected against work discrimination by Title VII of the 1964 Civil Rights Act, to justify its position that banning gender-affirming care opens states to higher legal scrutiny under the 14th Amendment.
Heron Greenesmith, adjunct law professor at Boston University and senior research analyst at the progressive think tank Political Research Associates, said that while the agency’s letter sends a powerful message that will likely fuel legal cases against anti-trans bills, it does not necessarily mean that the agency plans to mount its own lawsuit.
To Greenesmith, the agency has, at minimum, provided fodder for civil rights groups pursuing lawsuits against anti-trans bills.
“Either way, this is great news,” they said. “It provides physical buoying underneath the legal arguments that plaintiffs are right now making that denying this care harms them.”
The agency’s letter follows a pattern of the DOJ filing statements of interest in lawsuits brought by the ACLU, Lambda Legal and other advocacy groups against states that have passed anti-trans bills. The DOJ, through spokesperson Aryele Bradford, declined to comment on what motivated the agency to release this letter now.
The letter also coincided with a slate of policy reforms announced by the Biden administration on TDOV that aim to reinforce transgender rights. LGBTQ+ advocacy groups met with congressional leadership, as well as leaders in Biden’s White House, in separate meetings last week to discuss trans rights.
Passport applications will have “X” gender markers available after April 11, enabling nonbinary and intersex people to have the document accurately reflect their identity. The Transportation Security Administration has pledged to replace its gender-based body scanners, which have led to trans people being subjected to invasive pat-downs and traumatic experiences.
The Social Security Administration also announced that trans people will not have to provide medical documentation to update their gender in their Social Security record, and the Department of Education plans, in a shift for the agency, to ask students for their gender identity when applying for federal financial aid, the White House said in a press release.
Alongside the policy rollout, six transgender and nonbinary youth visited the White House on TDOV to meet with Levine, Second Gentleman Doug Emhoff and — briefly — with Vice President Kamala Harris.
Andy Marra, executive director of the Transgender Legal Defense & Education Fund — who first reached out to the White House on March 2 to request a meeting of trans youth and families at the White House — told The 19th on TDOV that the organization is also advocating for the administration to remove blanket exclusions for transition-related health care from its federal employee health care benefits program. The organization brought the issue up in a March 29 meeting with members of Congress, including House Speaker Nancy Pelosi, Marra said.
Young noted that the DOJ’s letter is also a missed opportunity for the administration to explicitly voice support for trans adults seeking gender-affirming care, not just trans youth, as some health insurance plans still include blanket exclusions against such care.
Marra said she sees bringing trans youth to the White House as a significant moment, especially at a time when TDOV has taken on a greater depth for some trans people as a rising number of anti-trans bills have proliferated through statehouses.
One trans teenager, Harleigh Walker, 15, who lives in Alabama, told The 19th that visiting the White House with her dad on TDOV — which is also her birthday — was an important moment to bring the administration’s attention to trans people are going through in the country.
“We are being attacked, and asking for help is really important,” she said.
The 19th is an independent, nonprofit newsroom reporting at the intersection of gender, politics and policy.
Education
Under Katy ISD gender policy, student identities disclosed to parents 19 times since August
Public records obtained by the Houston Landing offer the first glimpse at how often the new, hotly contested policy has been used to disclose LGBTQ+ students’ identities to parents — even if the students aren’t ready.
Since narrowly passing a controversial gender policy two months ago, Katy Independent School District has sent 19 notifications informing parents that their child identified themselves as transgender or requested to use different names or pronouns at school.
The number of parental notifications, obtained by the Houston Landing through a public records request, is the first glimpse at how often the new, hotly contested policy has been used to disclose LGBTQ+ students’ identities to parents — even if the students aren’t ready.
So far, the district averages a notification to a parent roughly once every three days.
The district’s policy requires staff to inform parents if their student requests to use different pronouns or names, or if they identify themselves as transgender — and obtain written parental consent to comply with the request. It also prohibits employees from asking for students’ preferred pronouns and discussing “gender fluidity,” and requires students to use bathrooms that align with their sex assigned at birth.
Jarred Burton, a student leader at Tompkins High School’s Sexuality and Gender Alliance, said the number of notifications already sent to parents is both depressing and surprising. Critics, including Katy parents, LGBTQ+ students and local advocates, have blasted the policy as a dangerous measure with the potential to expose students’ gender identities to unsupportive parents, further harming a community that already faces a higher risk of mental health issues than their peers.
“It’s just sad to see this actually happening,” Burton said. “It shows that (the policy) is not a bluff.”
Board members who supported the policy hailed it as a measure that would center parents’ right to be informed about their child’s gender identity and protect teachers from making uncomfortable decisions about concealing such information from parents.
“(Parents are) supposed to be looking after the health and welfare of their child,” Board President Victor Perez said at a late August meeting. “Withholding that information from the parent, that is a great burden on staff.”
It’s unclear how many parents were already aware of their child’s gender identity. District officials also did not make any board members available for an interview on the matter.
“The policy is intended to provide parents and guardians the opportunity to be made aware of their child’s name change request, and the opportunity to grant or deny approval of said request,” Katy spokesperson Nick Petito said in a statement Wednesday.
Ash Thornton, a transgender man and a junior at Tompkins High School, said the number of notifications being sent home will discourage LGBTQ+ students from feeling safe to explore their identities.
“It signals that it’s something bad, them being transgender or expressing gender in a way that’s different,” Thornton said. “It definitely messes up student-teacher relationships.”
Employees are not required to comply with a student’s name or pronoun change even if a parent gives consent, the policy states.
One staff member on every campus is responsible for processing and sending notifications to parents and guardians, Petito said. The policy makes an exception for “cases of suspected abuse.”
Students belonging to LGBTQ+ clubs have told the Landing the policy has caused their schools to become less of a safe space and has instilled fear among LGBTQ+ youth in Katy.
“There’s just been this looming cloud of dread over a lot of people,” Burton said in a September interview. “There’s gonna be a lot of people that get in trouble by their parents or get hurt. … It just sometimes keeps me up at night a little bit because it’s hard to imagine how much hate people can have to pass something like this.”
The number of notifications sent to parents to date leaves Thornton to wonder what else is to come.
“It’s only been two months and there’s already 19, how many more people are going to be affected by even just the end of the semester?” he said.
The Houston Landing is a nonprofit newsroom devoted to public service journalism for all Houstonians.
This article first appeared on the Houston Landing and is republished here with permission.
Tennessee
‘This is a make or break moment’: Tennessee families ask Supreme Court to take on gender-affirming care
For the first time, attorneys working for LGBTQ+ rights have asked the Supreme Court to rule on a gender-affirming care ban for transgender youth.
This story was originally published by The 19th
For the first time, attorneys working for LGBTQ+ rights have asked the Supreme Court to rule on a gender-affirming care ban for transgender youth. Lawyers with Lambda Legal and the ACLU, alongside other legal partners, are asking the court to block Tennessee’s law preventing trans youth from accessing gender-affirming care.
Tennessee’s ban on puberty blockers and hormone treatments for trans youth first took effect this summer, when a panel of judges on the U.S. Court of Appeals for the 6th Circuit blocked the statewide injunction that had kept the law from taking hold. A full decision came in September, when the 6th Circuit found that gender-affirming care bans for trans youth must stay in place in Kentucky and Tennessee as lawsuits continue.
Tennessee law allows patients already receiving care to continue until March 2024, but physicians have already begun weaning trans adolescents off their hormone treatments to avoid a sudden cut-off of treatment next spring, Sruti Swaminathan, a Lambda Legal staff attorney, previously told The 19th.
Attorneys representing transgender youth and their families in Tennessee are asking the Supreme Court to determine whether the state’s law violates the 14th Amendment’s equal protection and due process clauses. These questions are at the core of recent conflicting decisions between federal appeals courts and lower courts that some LGBTQ+ experts have previously seen as the groundwork for a Supreme Court case on gender-affirming care.
“This next step is both uncertain and necessary. We must fight back with every tool that we have,” Chase Strangio, one of the most prominent transgender attorneys in the country, said on Instagram while announcing the high court petition. Strangio is the deputy director for transgender justice at the ACLU’s LGBTQ & HIV Project.
In a written post on the ACLU’s website, Strangio alluded to the risk inherent in asking a conservative-majority Supreme Court to take up the case — while maintaining that advocates must exhaust every available option to protect gender-affirming care.
“We have witnessed this court disregard and infringe people’s bodily autonomy repeatedly, most recently with its devastating decision in Dobbs, which overturned Roe v. Wade,” he wrote. “We take this step with full knowledge that, no matter what happens, we will have to fight for each other and use every tool in our toolbox to defend all our rights to bodily autonomy.”
Four attorneys who have worked directly in other lawsuits on gender-affirming care bans or LGBTQ+ cases said that this marks the first time that a gender-affirming care ban for transgender youth has been appealed to the Supreme Court.
Shannon Minter, legal director of the National Center for Lesbian Rights — who has been representing LGBTQ+ rights cases for decades — said that given the sheer number of states enacting gender-affirming care bans and other anti-LGBTQ+ laws, advocates have no choice but to fight them in court. After the 6th Circuit ruled in late September that gender-affirming care bans for trans youth must remain in place in Kentucky and Tennessee, taking the fight to the Supreme Court became necessary, he said.
“The stakes of a Supreme Court case are extremely high,” he said. “This is a make or break moment.”
If the court agrees to take up the case, it will either give transgender youth and their families relief and alleviate some of the hostile political pressure against trans people in the United States — or it will greenlight Tennessee’s law and pave the way for more attacks, Minter said.
The Supreme Court has recently declined to get involved with several trans rights cases, and in doing so, granted wins to advocates through inaction. The high court declined to intervene in a case on whether transgender student Gavin Grimm could use the bathroom that matched his gender identity, and whether a trans girl in West Virginia could play in school sports.
The Supreme Court has also declined to take up cases, most recently in 2021, in which attorneys representing incarcerated transgender women sought review of decisions denying gender-affirming care to their clients, said Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal.
The case of Aimee Stephens — which led to the high court’s landmark 2020 ruling in Bostock v. Clayton County — is the only recent example of the Supreme Court agreeing to review a case involving trans rights being threatened, said Chris Erchull, an attorney at GLBTQ Legal Advocates & Defenders. In that ruling, the Supreme Court found that LGBTQ+ people are protected against workplace discrimination.
“As far as the very recent and unprecedented slate of attacks that include bans on access to bathrooms, bans on access to participation in sports, bans on drag shows, and most alarmingly, the bans on access to health care, this is the first case that has been appealed to the Supreme Court,” Erchull said.
In light of the unprecedented scope of these legislative attacks, it is crucial that transgender Americans do not give in to fear, Minter said. These laws are meant to silence and repress trans people, and to scare the community into inaction and hiding.
“We all have to do everything we can, within our power, to resist that,” he said.
The 19th is an independent, nonprofit newsroom reporting at the intersection of gender, politics and policy.
88th Texas Legislature
Texas’ ban on certain drag shows is unconstitutional, federal judge says
Senate Bill 12 would have prohibited performers from dancing suggestively or wearing certain prosthetics in front of children. Critics sued the state, saying it violated the First Amendment.
This article originally appeared in The Texas Tribune
Texas cannot enforce a new law that restricts some public drag shows, a federal judge said Tuesday in declaring the legislation unconstitutional.
U.S. District Judge David Hittner found Senate Bill 12 “impermissibly infringes on the First Amendment and chills free speech.” The struck-down law prohibited any performers from dancing suggestively or wearing certain prosthetics in front of children.
Hittner ruled that language discriminated based on viewpoint and is unconstitutionally overbroad and vague.
“The Court sees no way to read the provisions of SB 12 without concluding that a large amount of constitutionally-protected conduct can and will be wrapped up in the enforcement of SB 12,” the ruling reads. “It is not unreasonable to read SB 12 and conclude that activities such as cheerleading, dancing, live theater, and other common public occurrences could possibly become a civil or criminal violation.”
The plaintiffs who sued the state celebrated the order, saying in statements shared by their lawyers that the decision affirmed their rights to express themselves.
“I am relieved and grateful for the court’s ruling,” drag performer Brigitte Bandit said. “My livelihood and community has seen enough hatred and harm from our elected officials. This decision is a much needed reminder that queer Texans belong and we deserve to be heard by our lawmakers.”
Republican state Sen. Bryan Hughes, who authored SB 12, defended the bill and pledged to challenge the ruling. The Texas Attorney General’s Office will appeal the ruling, a spokesperson said.
“Surely we can agree that children should be protected from sexually explicit performances. That’s what Senate Bill 12 is about,” Hughes said. “This is a common sense and completely constitutional law, and we look forward to defending it all the way to the Supreme Court if that’s what it takes.”
Critics of the bill, though, say that Republican lawmakers and officials this year have incorrectly — and unfairly — portrayed all drag performances as inherently sexual or obscene.
While SB 12 was originally billed as legislation that would prevent children from seeing drag shows, the final version did not directly reference people dressing as the opposite gender.
However, Republican leaders, including Gov. Greg Abbott, made it clear that drag shows were the bill’s target — comments and history that Hittner wrote “the court cannot ignore.”
Last month, Hittner temporarily blocked SB 12 from taking effect on Sept. 1 after a two-day hearing for a lawsuit filed against the state by a drag queen and LGBTQ+ groups.
LGBTQ+ Texans, advocates, artists and business groups who sued the state, argued that the law discriminates against the content of performances and restricts equally protected free expression that is protected under the First and 14th Amendments.
In Tuesday’s 56-page ruling, Hittner noted a survey of court decisions “reveals little divergence from the opinion that drag performances are expressive content that is afforded First Amendment protection.”
“Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles,” the ruling reads. “There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection.”
Other states have passed similar legislation restricting drag performance, which have also been struck down by federal courts.
In June, a federal judge in Tennessee, appointed by former President Donald Trump, ruled a law there was unconstitutional in its effort to suppress First Amendment-protected speech.
Bucking that trend, another Texas federal judge last week issued an opinion that supported drag show restrictions.
U.S. District Judge Matthew Kacsmaryk said that West Texas A&M University President Walter Wendler acted within his authority when he canceled a campus drag show. Kacsmaryk wrote that Free Speech jurisprudence had “not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”
Hittner acknowledged his Panhandle counterpart’s ruling Tuesday. Hittner pointed to a letter in which Wendler explained his reasoning for banning the show, comparing drag to blackface and a slapstick sideshow.
“The president’s sentiment reinforces this Court’s opinion that while some people may find a performance offensive or morally objectionable, it does not mean the performance is not expressive or given First Amendment protection,” he wrote. “Not all people will like or condone certain performances. This is no different than a person’s opinion on certain comedy or genres of music, but that alone does not strip First Amendment protection.”
LGBTQ+ advocates welcomed Hittner’s decision Tuesday.
“Today’s ruling is a celebration for the LGBTQ community and those who support free expression in the Lone Star State,” GLAAD President and Chief Executive Officer Sarah Kate Ellis. “Texas now joins an increasing number of states whose discriminatory and baseless bans on drag performances are being recognized as unconstitutional and an attack against everyone’s freedoms.”
William Melhado contributed to this story.
The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.
