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Informed Citizens

are Better Citizens

by Sylvia Mendoza

The teenage years can be tough for a lot of people—peer pressure, social angst, academics, etc. Transgender youth must navigate those issues too, as well as special healthcare concerns.

According to the Human Rights Campaign, an advocacy organization promoting equity for the LGBTQ+ community, 22 states now have laws or policies in place banning gender-affirming care for transgender minors, aged 13 to 18. New Jersey does not have a gender-affirming care ban; however, more than 35% of transgender youth live in states that do.

A June 2022 report by the Williams Institute, a UCLA Law School think tank that conducts research on sexual orientation and gender identity law, revealed that 1.6 million people in the U.S. identify as transgender—18% or nearly 300,000 people are between the ages of 13 and 17. A transgender person, according to the National Center for Transgender Equality, is someone whose gender identity—their instinctive knowledge of who they are—does not align with the sex assigned to them at birth.

What is gender-affirming care

Gender-affirming care covers a range of social, psychological, behavioral, and medical interventions, according to the World Health Organization. Treatments include talking with a therapist or counselor, taking medications that pause puberty, receiving hormone therapies, and surgery.

“The thing that many people think of when they hear gender transition procedures is surgery,” explains Katie Eyer, a professor at Rutgers Law School in Camden and a former LGBTQ+ rights attorney. “That’s rarely actually what’s at issue. It’s much more likely to be things like puberty blockers, which help delay puberty while the user makes a decision about what they want to do in terms of further medical treatment.”

The Association of American Medical Colleges, a nonprofit dedicated to improving health through medical education, health care, medical research, and community collaborations says the timing for treatment should center around a patient’s cognitive and physical development as well as parental consent. The Endocrine Society, a global community of clinicians, recommends waiting until a teenager can give informed consent to start hormone therapy and indicates that surgery is rarely provided to those under 18.

Medical associations like the American Academy of Pediatrics, the American Medical Association, and the World Professional Association for Transgender Health support transition-related care and publish guidelines on age-appropriate timelines for care.

“Critics of our gender-affirming care policy mischaracterize it as pushing medical or surgical treatments on youth,” Dr. Moria Szilagyi, the 2022 president of the American Academy of Pediatrics, wrote in a statement. “In fact, the policy calls for the opposite: a holistic, collaborative, compassionate approach to care with no end goal or agenda.”

Gender-affirming care bans

Debates over gender-affirming care center on the age such care should be provided. Proponents of bans argue they protect minors from making decisions they could later regret.

In some states, like Alabama, Indiana, Kentucky, and Florida, federal judges have blocked gender-affirming bans from taking effect while legal challenges work their way through the court system. Oklahoma’s ban would make it a felony to provide gender-affirming care for transgender people under the age of 26. Oklahoma agreed not to enforce its ban until lawsuits challenging it had been resolved.

Other states have allowed the bans to take place even when they have been challenged. In Texas, for example, the Texas Supreme Court allowed its gender-affirming care ban to take effect in September 2023. The state’s highest court heard a case challenging the law in January 2024.

In Georgia, the parents of four transgender girls challenged the state’s ban on hormone replacement therapy, arguing the law “violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children” and “violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment…” In June 2023, a federal Georgia judge temporarily blocked the law from going into effect; however, in September 2023, the judge restored the enforcement of the law.

At press time, no decision had been reached in the Texas or Georgia cases.

Carlos Ball, a professor at Rutgers Law School in Newark who is a national expert on LGBTQ+ rights has been teaching classes on constitutional law, as well as sexuality, gender identity, and the law for nearly 30 years, says the gender-affirming care bans infringe on constitutional rights in at least a couple of ways.

“First, they impermissibly discriminate against transgender minors. The same treatments are not banned when they are used in ways that are intended to support the sex of minors that were assigned at birth,” Professor Balls says. “The bans also infringe on the constitutional rights of parents of transgender minors to choose among medically available and recommended treatments that they believe are best for their children. The U.S. Supreme Court has recognized that parents have a constitutional right to make important decisions about their children’s well-being.”

A decision in Arkansas            

In 2021, Arkansas was the first state in the nation to ban gender-affirming care for transgender minors. The Arkansas law banned all gender-affirming care for transgender youth—even with parental consent. In 2022, the law was challenged by four families of transgender youth, including Dylan Brandt, as well as two doctors. An eight-day trial took place in December 2022.

U.S. District Judge James Moody of the Eastern District of Arkansas issued a landmark decision in Brandt et. al. v. Rutledge in June 2023. The Arkansas court ruled the law is unconstitutional and violated the Equal Protection Clause, the Due Process Clause, and the First Amendment of the U.S. Constitution.

“Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing,” Judge Moody wrote in his ruling. “The testimony of well-credentialed experts, doctors who provide gender-affirming medical care in Arkansas, and families that rely on that care directly refutes any claim by the State that the Act advances an interest in protecting children.”

In a statement after the ruling was announced, 17-year-old Dylan Brant offered thanks to the judge.

“I’m so grateful the judge heard my experience of how this health care has changed my life for the better and saw the dangerous impact this law could have on my life and that of countless other transgender people,” said Brandt. “My mom and I wanted to fight this law not just to protect my health care, but also to ensure that transgender people like me can safely and fully live our truths. Transgender kids across the country are having their own futures threatened by laws like this one, and it’s up to all of us to speak out, fight back, and give them hope.”

Professor Ball says, “Judge Moody’s decision is important because it follows his holding of the only full trial that has been held so far assessing the constitutionality of the gender-affirming healthcare bans.”

In a statement after the ruling, Arkansas’s Attorney General announced he would appeal the decision to the 8th U.S. Circuit Court of Appeals.

Repercussions of gender-affirming care bans

“With the Arkansas law, there was a lot of testimony from both individuals and mental health professionals about genuine concerns—that this would create suicide risks for an already very vulnerable population of youth being subjected to really high levels of stigma and discrimination,” says Professor Eyer.

A National Institutes of Health study found that transgender youth who take puberty blockers are less likely to experience lifelong suicidal thoughts than those who want the care and don’t get it. In states where gender-affirming care has been banned, families are truly in limbo as they wait for the legal process to play out, says Professor Eyer.

“Once the legal system has spoken, you don’t necessarily have any ability to change that,” Professor Eyer says. “The reality of the legal process is quite long. For kids who are going through puberty now, there isn’t like ‘let’s wait two years and then this will all be resolved.’”

Families might have to travel to or relocate to different states to obtain care, Professor Eyer notes, and not all parents can afford that.

Professor Ball says he found in researching his book, The First Amendment and LGBT Equality: A Contentious History, that ‘’The fight for civil rights in this country has never been a straight line. It seems that for every important civil rights victory there has been backlash by those who resist change. So, while laws such as the gender-affirming healthcare bans are highly troubling, transgender people today have forms of visibility and support that make me hopeful for the future.”

Discussion Questions

  1. Were you surprised to learn that gender-affirming care covers much more than surgery and that advocates say that care can be life-saving for transgender youth who experience high rates of depression? Explain your answer.
  2. Should states be allowed to override parental decisions in the care of transgender youth? Why or why not?

Glossary Words
minor
—someone under the age of 18.

This article originally appeared in the winter 2024 issue of Respect, NJSBF’s diversity & inclusion newsletter.