The judiciary now controls the fate of trans youth & rulings seem to simply be luck of the draw

Judge with gavel
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More anti-LGBTQ+ legislation is sweeping the nation than ever before, and armed with transphobic rhetoric, GOP-led state legislatures are focusing their attacks on gender-affirming care for trans youth.

These lawmakers are leaving young people without life-affirming care, sometimes forcing them to move if their families have the means. As the culture war rages on, the fate of these minors is now left in the hands of the judiciary, one lawsuit at a time. 

Many gender-affirming care bans have been challenged in the courts by human rights organizations and the parents of trans minors, but there seems to be no consistency in how these legal battles shake out. 

For each precedent set on the side of trans youth, another judge seems to answer the call of the right, holding up these cruel laws. In the same week the 6th Circuit Court of Appeals upheld a Tennessee ban, a state court in Montana overturned that state’s ban on gender-affirming care. Clearly, the legal interpretation of the constitutionality of these bans is being widely left up for debate and determined case-by-case. 

There are few differences between the bans sweeping state legislatures. For the most part, the legislation across the country seeks the same outcomes and uses similar terminology. The Montana and Tennessee laws are almost identical, with the distinction that the Tennessee law gives transgender minors receiving gender-affirming care nine months, until March of 2024, to detransition and stop receiving care. The negligible differences in the bans are what make the differences in legislative outcomes so alarming — it truly is up to each judge to decide whether they are unconstitutional. And as we are seeing, that decision is incredibly subjective.

The Cincinnati-based 6th Circuit Court of Appeals ruled 2-1 to uphold bans in both Tennessee and Kentucky. The challenge came from families of trans youth arguing that the bans discriminated on the basis of sex. Chief Judge Jeffrey Sutton, who was joined in the ruling by Judge Amul Thapar, wrote, “This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments.” 

While some judges insist on an abundance of caution in their rulings on these cases, their lack of commitment to understanding both healthcare and gender dysphoria denotes a complete refusal to legally care for trans youth.

The ruling blatantly goes against the consensus of the American Medical Association (AMA). On June 12 the AMA passed a resolution endorsing gender-affirming care. It was drafted by the Endocrine Society and co-signed by The American Academy of Pediatrics, The American College of Obstetricians and Gynecologists, The American Urological Association, The American Society for Reproductive Medicine, The American College of Physicians, The American Association of Clinical Endocrinology, GLMA: Health Professionals Advancing LGBTQ+ Equality, and the AMA’s Medical Student Section. Essentially, the entire medical community is in agreement that gender-affirming care for transgender minors is not only safe, but necessary.

The medical organizations affirmed, among other facts that, “It is the responsibility of the medical community to speak out in support of evidence-based care. Medical decisions should be made by patients, their relatives and health care providers, not politicians.” They added that these widespread bans, “do not reflect the research landscape. More than 2,000 scientific studies have examined aspects of gender-affirming care since 1975, including more than 260 studies cited in the Endocrine Society’s Clinical Practice Guideline.” 

The American Academy of Pediatrics stated, “There is strong consensus among the most prominent medical organizations worldwide that evidence-based, gender-affirming care for transgender children and adolescents is medically necessary and appropriate. It can even be lifesaving. The decision of whether and when to start gender-affirming treatment, which does not necessarily lead to hormone therapy or surgery, is personal and involves careful consideration by each patient and their family.” 

Judges upholding these bans on gender-affirming care are not only ruling in direct opposition to the medical community’s consensus, but they’re also infringing on rights to privacy — a hill the GOP is typically willing to die on. Much like how conservative lawmakers wanted to use bodily autonomy as a legal backbone against Covid regulations (but ignore the same framework to overturn Roe V. Wade) they are continuing to cherry-pick when it comes to gender-affirming care, picking and choosing when someone should have rights to both their own body and privacy. 

As usual with right-wing lawmakers, the law seems to apply if and only if it’s in accordance with their Christian “morality.” Some are even going so far as to invoke Dr. Martin Luther King Jr. out of context to try and justify their crusade against the LGBTQ+ community — a feat of cognitive acrobatics that leaves one dumbfounded. South Dakota representative Brandei Schaefbauer quoted Dr. King’s 1966 speech on the House floor in February, “It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless.” 

But for every judge who sides with conservatives like Schaefbauer, there seems to be one who is willing to defend minors’ access to care. Contrary to the 6th Circuit’s ruling, a judge in Montana ruled against the state’s ban on gender-affirming care just days before it was set to go into effect. District court judge Jason Marks sided with transgender children and their families, agreeing that the ban was likely unconstitutional. The complaint filed by the American Civil Liberties Union, the ACLU of Montana and Lambda Legal stated that the ban served no purpose other than to “intentionally burden a transgender person’s ability to seek necessary care to align their body with their gender identity.” The complaint also pointed out that the ban only applied to transgender youth, allowing the same treatment for cisgender youth, denoting both the latent discrimination and hypocrisy. 

Emily Flower, spokesperson for Attorney General Austin Knudsen, said of the ban: “The new law provides commonsense protections for Montana children — who can’t even enter into contracts or buy cigarettes or alcohol — from harmful, life-altering medications and surgeries.” Democratic representative Zooey Zephyr, the first trans woman elected to the state legislature, rallied against the legislation, resulting in the Republican-controlled body banning her from the floor for the rest of the session. Zephyr defiantly created a workspace on a bench outside of the House Chambers from which she voted remotely on the bill. 

Judge Marks noted that the ban contradicts another law passed by the Montana legislature allowing minors to receive treatment from experimental drugs, as long as there is consent and recommendation from a medical provider. Marks called the ban “disingenuous,” adding that it was intended to “ban an outcome deemed undesirable by the Montana Legislature, veiled as protection for minors.”

Mark’s comments speak to a larger concern — conservative lawmakers using children as props to carry out their culture war on all things “woke.” It is in the same spirit that they are banning books discussing the real, atrocious history of our country regarding race, banning any mention of homosexuality in schools, and now banning healthcare for trans youth. Pretending to protect children from nonexistent monsters seems to be the GOP’s new magic trick for propelling their conservative agenda.

Hopefully, more judges like Marks are prepared to rule on the side of what’s right in these cases, giving children and their families some peace in this culture war. Akilah Deernose, executive director of the ACLU of Montana, said in a statement, “Today’s ruling permits our clients to breathe a sigh of relief. But this fight is far from over. We look forward to vindicating our clients’ constitutional rights and ensuring that this hateful law never takes effect.” 

But for every advocate, there is a naysayer. Spokeswoman Emilee Cantrell from the state Department of Justice said in a statement, “We look forward to presenting our complete factual and legal argument to protect Montana children from harmful, life-altering medications and surgeries. Because of the irreversible and immediate harms that the procedures have on children we will be filing a notice of appeal today.”

Beyond outright bans of gender-affirming care, some states are getting cruelly creative with their dangerous, discriminatory legislation. A new set of regulations released by Nebraska on Monday would require that trans youth seeking medical treatment for dysphoria receive at least 40 hours of therapy “not in a gender affirming context.” This means that these youth could be exposed to what could amount at worst to conversion therapy, while being misgendered, having their birth names used and having their diagnoses questioned. The new recommendations are being permitted by a law passed this year called the “Let Them Grow Act” that will also likely be challenged in the courts.

Gender-affirming care has not only been deemed safe, but found to be medically necessary for patients experiencing gender dysphoria. While at least 22 states have introduced bans on medical care for trans youth, studies have shown that only about 1% of patients experience regret and fewer decide to detransition. 

Until there is some kind of federal ruling on gender-affirming care, states can and will continue to exploit minors in their war against LGBTQ+ rights. It will be up to judges across the country to protect these children and their right to safely transition with their doctors and families. Lawyers for the families who brought on the Tennessee suit said in a statement that the ruling was a devastating result for transgender youth and their families,” adding, “We are assessing our next steps.” 

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