Trump judge allows Oklahoma’s gender-affirming care ban to go into effect

Oklahoma district court judge has allowed S.B. 613, a state ban on gender-affirming care for minors, to go into effect, making it a felony for medical providers to give such care. In his ruling, Judge John Frederick Heil III — appointed by former President Donald Trump — wrote that the law “is not an outright ban on gender-affirming care” because it allows trans adults to access such care.

S.B. 613 bans all forms of this lifesaving health care – including reversible puberty blockers – for anyone under the age of 18. It forces trans minors currently receiving such care to de-transition over a six-month period. The law also makes it a felony for doctors to provide this care to trans youth and allows prosecution of health care professionals until their patients turn 45 and also potential civil penalties, including the loss of their medical licenses.

Related:

Oklahoma bans gender-affirming care for minors at state-funded hospital

Trans kids who depend on the hospitals for hormone therapy may be forced to de-transition.

A gender-affirming care doctor and five families with transgender teens filed a lawsuit challenging the law, saying that it discriminates on the basis of sex and gender and violates constitutional rights to due process. The doctor and families sought a preliminary injunction to keep the law from going into effect while the courts considered their lawsuit.

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In his decision, Judge Heil said that that law doesn’t violate the Constitution’s equal protection clause because it “targets specific medical interventions” based on age. As for discriminating against sex and gender, Heil said that the law only mentions both characteristics when discussing the purposes and methods of the restricted gender-transition procedures rather than the groups of people who may not receive it.

Heil pointed to an Eleventh Circuit Court decision allowing Alabama’s gender-affirming care ban to go into effect even though the 2020 U.S. Supreme Court decision in Bostock v. Clayton County said that an employer violates Title VII, a law forbidding sex and gender discrimination in the workplace, when it discriminates against transgender people.

“This Court will not extend the reasoning of Bostock — a Title VII case concerning an adverse employment action — to this case, which concerns a materially different governing law, materially different language, and materially different facts,” Heil wrote.

He added, “This is not a case where a state action is being taken to further a particular gender stereotype or prohibit conduct that contravenes that stereotype.” The law prevents trans minors from accessing gender-affirming care because the state believes that the potential medical risks outweigh any benefits, but only when transgender people need to access the procedures, not cisgender people who want access to gender-affirming care. As such, the law values cisgender identities over transgender ones and seeks to restrict behavior based on the belief that it’s wrong for minors to pursue care that contradicts the gender they were assigned at birth.

The judge also wrote that the plaintiffs failed to prove that the ban was part of a “larger legislative strategy to discriminate against transgender people,” because some of the other anti-trans bills that the plaintiffs mentioned in their lawsuit failed to become law.

“If these bills were components of an overarching discriminatory strategy, it seems unlikely that they would have died in [legislative] committee,” Heil wrote.

He cited Tenth Circuit court decisions that stated that “parental rights, including any right to direct a child’s medical care, are not absolute,” adding, “Indeed, states have a compelling interest in and a solemn duty to protect the lives and health of the children within their borders…. When a child’s life or health is endangered by her parents’ decisions, in some circumstances a state may intervene without violating the parents’ constitutional rights.”

Heil also wrote, “Where, as here, there is robust scientific and political debate concerning a significant public-policy question, a court should be loath to step in to end the debate and thereby suggest it is all-knowing. The record in this case amply demonstrates that there is no consensus in the medical field about the extent of the risks or the benefits.”

Heil’s decision didn’t mention that every major medical association in the U.S. considers gender-affirming care as safe and essential to the well-being of trans youth. Though he noted that some cisgender minors receive puberty blockers and hormone replacement therapy to treat early-onset puberty, he considers that a “physiological” malady and considers gender dysphoria as a “psychological” malady; they shouldn’t be treated as being similar, he wrote.

The lawsuit’s plaintiffs pointed out that Oklahoma’s ban “passed despite the sustained and robust opposition of medical experts in Oklahoma and across the country.” The ban “will cause severe and irreparable harm” if allowed to stand, the lawsuit adds, as the teens’ families are considering leaving “their jobs, businesses, extended families, and communities” — at a great personal and financial cost — to relocate to states where their children can access gender-affirming care, the lawsuit argued.

During legislative hearings on a proposed gender-affirming healthcare ban, state Rep. Jim Olsen (R) said trans identity was a path of “desolation, destruction, degeneracy, and delusional play-acting.” He said trans teens need “wise and clear biblical guidance” rather than gender-affirming care. State Rep. Justin Humphrey (R) compared gender-affirming care to “starving your child to death.”

In a joint statement, Lambda Legal, the American Civil Liberties Union (ACLU), the ACLU of Oklahoma, and the law firm Jenner & Block pledged to appeal the decision and wrote, “This is a devastating result for transgender youth and their families in Oklahoma and across the region, Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm. But this is not the end.“

“We are appealing this decision that is completely out of step with all other federal trial courts and that ignores the overwhelming evidence that gender-affirming medical care is safe and effective evidence-based care,” the statement added. “We will continue our fight in defense of our clients and the constitutional rights of transgender people in Oklahoma and across the country.”

Twenty-two states have banned gender-affirming care for minors. Judges have blocked these bans from going into effect in Alabama, Arkansas, Florida, Indiana, and Montana.