In recent weeks, several prominent anti-trans laws have been blocked by federal courts, underscoring how shaky the legal footing underlying them really is.
Parts of measures curbing gender-affirming care for trans youth in Kentucky and Tennessee were barred by federal judges on Wednesday, while provisions limiting gender-affirming care in Arkansas, Florida, and Indianahttps://www.nytimes.com/2023/06/06/us/florida-transgender-health-care-ban.html were struck down earlier in June.
“I think what [the Kentucky decision and that of other states] across the country are saying is that banning health care is unconstitutional,” said Angela Cooper, a spokesperson for ACLU of Kentucky, a group that helped challenge the state’s law. “Every medical organization agrees with us.”
In nearly all the recent cases, federal judges concurred, deeming the core tenets of the laws either outright unconstitutional or likely to be interpreted as such. In Kentucky and Tennessee, the judges also respectively went on to describe gender-affirming care as “medically appropriate and necessary” and noted that targeting trans youth amounted to “disparate treatment on the basis of sex.”
Many conservatives and their allies beg to differ, however, and it is likely these cases could ultimately end up at the Supreme Court.
These court cases come as Republicans across the country have homed in on anti-trans bills as a culture war issue that can be used to rally their base. Even as courts are stymieing existing bills, other legislatures, like those of North Carolina and Ohio, are still approving them.
Decisions like those in Kentucky and Tennessee, however, suggest those policies — if they become law — may also be successfully challenged in court, only further highlighting how, for many conservatives, the messaging around anti-trans bills is as important as the proposals themselves. The Kentucky and Tennessee decisions send a message
The recent Kentucky and Tennessee decisions aren’t total victories for the trans community, but they do set important precedents. Both temporarily affirm that access to puberty blockers and hormone therapy is still legal for trans youth in these states, though other tenets in their respective bills — including bans on gender-affirming surgeries for minors — are still able to take effect. In Kentucky, plaintiffs did not challenge the gender-affirming surgery provision, and in Tennessee, the judge opted to uphold it.
The court decisions in both states add to others announced in the past few months, which have defended gender-affirming care in some way.
Earlier this month, a federal judge permanently struck down Arkansas’s ban on gender-affirming care for youth, deeming it unconstitutional, and enabling physicians to continue providing hormone therapy, puberty blockers, and surgeries. A federal judge has also temporarily blocked significant provisions of an Indiana law, noting that opponents showed how it could cause “irreparable harm,” and enabling physicians to continue providing hormone therapy and puberty blockers, but keeping the ban on surgeries. And in Florida, a federal judge has also temporarily blocked a provision in a law that bars trans youth from receiving puberty blockers, emphasizing that “gender identity is real.”
Collectively, these court decisions are bolstering advocates’ fight to combat anti-trans bills and push back on the onslaught of policy and rhetoric from conservatives in the last few years. Additionally, they help set a standard for how other states’ laws are evaluated and considered by the courts.
As Vox’s Nicole Narea and Fabiola Cineas explain, there’s been an explosion of state laws targeting trans youth, as Republican legislatures have framed trans people and health care as a threat to children. These laws have included restrictions on gender-affirming care, the ability for trans people to compete in sports, and the ability for trans people to use bathrooms that match their gender identity.
Such bills have been approved even as prominent medical organizations including the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics have described gender-affirming care as “medically necessary care.” According to MedPage Today, 20 states have approved some form of restriction on gender-affirming care for minors.
Beyond the legislation blocked in the last few weeks, other bills specifically attacking such care have encountered legal roadblocks.
“To date, eight gender-affirming care bans have been challenged in courts, with more challenges in the works,” Omar Gonzalez-Pagan, counsel at Lambda Legal, an advocacy group for LGBTQ rights, told Vox. “Of these, six have been preliminarily or permanently enjoined by the courts, one is not being enforced by agreement while the motion for a preliminary injunction is pending, and the last one has not taken effect yet.”
Such legal victories mark important inroads for trans advocates, though more will be needed to combat sweeping restrictions. In several other states, like Utah and South Dakota, bills curbing gender-affirming care have already taken effect, or are poised to soon. And in others such as South Carolina and Wisconsin, Republican legislatures are continuing to consider them.
Even in states where there’s been legal action blocking legislation, certain provisions in those bills — such as a ban on gender-affirming surgeries — have still been able to move forward. And some of the legal action that’s been taken is temporary and dependent on other legal challenges winding their way through the courts, or potential appeals.
Still, advocates note the string of wins they’ve seen recently send a powerful message about their ability to protect such care for minors, and set the tone for legal contests to come.
“That every court to consider laws like [these] have so far come out the same way shows how unconstitutional and misguided these laws are,” says Gonzalez-Pagan.
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