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Transgender people under 18 face laws that bar them from accessing gender-affirming health care in 25 states — just a few years ago, not a single state had such a law.
The Supreme Court has agreed to consider a case from Tennessee in its next term that challenges that state’s gender-affirming care ban for young people.
“Pressure had been mounting for the Supreme Court to weigh in here,” says Lindsey Dawson, director for LGBTQ Health Policy at the health research organization KFF.
Most of the state bans have been challenged in court, Dawson notes, with 20 state bans currently in effect. “We'd seen split decisions in the appeals courts, which is always an indication that an issue might be ripe for the Supreme Court.”
The details of the state bans vary, but the laws generally bar transgender minors from accessing puberty blockers, hormones and surgery (which is very rare for minors).
On the docket
Oral arguments in the Supreme Court case will take place in the fall. Arguing on behalf of transgender Tennesseans before the justices will be U.S. Solicitor General Elizabeth Prelogar. Defending the law will be Tennessee’s Republican attorney general, Jonathan Skrmetti.
The gender-affirming care bans across the country “are creating profound uncertainty for transgender adolescents and their families around the Nation — and inflicting particularly acute harms in Tennessee and other States where the laws have been allowed to take effect,” reads Prelogar’s request to the justices to take up the case.
Skrmetti wrote in a statement: "We fought hard to defend Tennessee's law protecting kids from irreversible gender treatments. I look forward to finishing the fight in the United States Supreme Court. This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity."
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What sparked all these new laws restricting gender-affirming care? “I can't point to a specific external event,” says Dawson. “But it's almost as if these policies were like wildfire — once a handful had enacted them, other states followed suit.”
Conservative groups like the Alliance Defending Freedom and the Heritage Foundation have encouraged state lawmakers to take up the issue. “The experimental gender-transition procedures foisted on our children are often irreversible,” ADF’s Matt Sharp wrote last year. “And not only are such drugs and procedures dangerous, but they are also experimental and unproven.” ADF did not respond to NPR’s request for comment for this story.
For the American Principles Project, the bans represent “efforts to rein in the predatory transgender industry,” as President Terry Schilling wrote in a statement this week. The American Principles Project did not respond to NPR’s multiple requests for comment on this story.
"Nothing has changed"
These claims — and the speed at which lawmakers have acted on them — mystify Dr. Kade Goepferd, chief education officer and medical director of Children's Minnesota's gender health program. Goepferd has provided the same kind of care for gender-diverse kids for 20 years.
“There's no new way that we're approaching this care. There's no new medications that we're using. There was no new groundbreaking research study that came out — nothing has changed,” they say. “If anything, the care has become more standardized, more guideline-based.”
All major U.S. medical organizations, including the American Medical Association, the American Academy of Pediatrics, the Endocrine Society and the American Psychological Association, support gender-affirming care as safe and necessary.
Erin Reed, a transgender journalist and activist, has closely tracked these laws as they made their way through state legislatures.
“I have watched thousands of hours of legislative hearings on this — there is probably not another topic that is currently receiving as much legislative time in the United States right now in statehouses across the country,” she says. “Laws targeting queer and trans people seem to come in waves throughout American history. This is not just an isolated incident.”
It’s also not coming from a groundswell of public concern, she asserts: “Despite what people think personally about transgender care, they don't want legislators spending time on it.”
She points to a NORC-LA Times poll released in June that found 77% of Americans agreed with the statement: “Elected officials are mostly using debates over transgender and nonbinary people to distract attention from more pressing priorities.”
There’s also a religious aspect to the push for these laws. “When God created us, he created us male and female, and that's it — there is no other choice,” South Carolina House Majority Leader Davey Hiott, a Republican, told reporters in January. “All these other folks that want to change that from birth or change that through their life, we need to stand up against that.”
In May, South Carolina became the 25th state to enact a gender-affirming care ban for youth.
Traveling for care
Dawson points out that the laws target the use of various medical interventions, not the interventions themselves, so she questions the arguments that the drugs or hormone treatments are unsafe.
“There are exceptions for youth who need to access these services — the very same services that are prohibited — for non-gender-affirming care purposes,” notes Dawson. Nearly all the restrictions include penalties for medical providers; several target parents, teachers and counselors.
For Goepferd’s clinic in Minnesota, the bans in surrounding states have meant about 30% more calls from patients.
“Even though we have added additional medical and mental health staff to try to keep up with that, our waitlist is still over a year long,” they say, which is a long time when it comes to puberty.
Patients traveling to Minnesota as frequently as every three months from other states is a logistical nightmare and makes insurance coverage complicated, Goepferd adds. “We're really set up to care for Minnesotans — we're not really set up to care for all of the Midwest.”
It's not just laws about medical care that have been passed, notes Kellan Baker, executive director of the Whitman Walker Institute, a LGBTQ research and advocacy group. “There are new restrictions being proposed and enacted every day around how transgender people can move through the world, not just with regard to accessing medical care, but, for example, going to school, playing on a sports team,” he says.
In Baker’s view, the state legislators passing these laws are “attacking kids to score political points and taking advantage of the fact that a lot of people might not know a transgender person,” he says. “There aren't that many transgender people — the best estimates we have are about 0.6% of the U.S. population identifies as transgender.”
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