Biden administration warns states that anti-trans laws violate federal law & the Constitution

Transgender flag being waved in a crowd
Photo: Shutterstock

Just days after Florida’s governor signed the state’s “Don’t Say Gay” bill into law and several other states – including Arizona, Oklahoma, and Utah – passed anti-transgender laws, the Department of Justice issued a warning to states that said targeting trans people for discrimination could violate federal law.

The DOJ “is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal
law,” the letter opens. “This includes ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care.”

Related: Oklahoma is advancing a bill that would criminalize school librarians over LGBTQ books

Over the past two years, states have been attacking transgender youth with bills to take away their ability to participate in school sports, to ban doctors from providing gender affirming care, and to keep schools from treating trans students equally. Florida’s “Don’t Say Gay” bill even requires schools to out transgender students to their parents in some cases.

Title IX and other federal laws ban discrimination on the basis of sex, and President Joe Biden has already issued an executive order saying that Title IX bans anti-LGBTQ discrimination. States, though, continue to defy federal law.

“People who are transgender are frequently vulnerable to discrimination in many aspects of their lives, and are often victims of targeted threats, legal restrictions, and anti-transgender violence,” the letter states. “The Department and the federal government more generally have a strong interest in protecting the constitutional rights of individuals who are lesbian, gay, bisexual, transgender, queer, intersex, nonbinary, or otherwise gender-nonconforming, and in ensuring compliance with federal civil rights statutes.”

“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal legal guarantees.”

The letter brings up transgender people’s constitutional rights to Equal Protection and Due Process under the law. The Constitution, the DOJ says, prohibits discrimination against transgender people unless there is an “exceedingly persuasive” justification.

The letter mentions laws banning transgender medical care, like the one passed in Arkansas last year, and says, “When a state or recipient of federal funds criminalizes or even restricts a type of medical care predominantly sought by transgender persons, an intent to disfavor that class can ‘readily be presumed.'”

The letter brings up several other federal laws that protect transgender people from discrimination, including Section 1557 of the Affordable Care Act, which bans discrimination in medical care; Section 504 of the Rehabilitation Act of 1973, which protects people with disabilities, including gender dysphoria; and the Omnibus Crime Control and Safe Streets Act of 1968, which bans discrimination in law enforcement programs.

“All persons should be free to access the services, programs, and activities supported by federal financial assistance without fear that they might face unlawful discrimination for doing so,” the letter says.

The Biden administration has already been involved in two lawsuits to overturn anti-transgender legislation, including a lawsuit challenging West Virginia’s transgender sports ban and a lawsuit challenging Arkansas’s gender affirming health care ban.

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