Transgender Care Suits Succeed So Far in Countering Rising Bans

Advocates for transgender rights have been racking up early legal victories over states that are trying to ban gender-affirming care for minors, as every court to have considered a ban so far has blocked it.

Federal judges in Florida, Arkansas, and Alabama have allowed parents and doctors—not the states—to determine whether the proper treatment for their children involves care that the medical community considers the “best practices,” including puberty blockers and cross-sex hormones.

The decisions, though preliminary, have given advocates confidence that they’ll ultimately succeed in litigation challenging the bans, said Li Nowlin-Sohl, a senior staff attorney with the American Civil Liberties Union’s LGBTQ & HIV Project in Seattle. These aren’t necessarily “liberal” judges, she said.

Given the furious pace at which states enacted these laws throughout 2023, more lawsuits can be expected, Nowlin-Sohl told Bloomberg Law.

States Done for 2023?

There are about 20 state laws banning gender-affirming care for minors, according to the Movement Advancement Project. The latest are in Missouri, where Gov. Mike Parson (R) signed a ban into law June 7, and Texas, where Gov. Greg Abbott (R) signed a bill June 2.

Most state legislatures have adjourned for 2023, making it unlikely there will be more laws announced this year.

The bans vary, but most preclude access to puberty blockers and cross-sex hormones. Some bans prohibit gender-affirming surgeries, such as vaginoplasties and hysterectomies. Effective dates also vary.

Five states—Florida, Idaho, North Dakota, Oklahoma, and Alabama—make it a crime for doctors to provide the care. The possibility of facing criminal prosecution, licensing sanctions, and potential jail time has scared professionals, according to Amy Whelan, a senior staff attorney with the Center for Lesbian Rights in San Francisco.

Whelan represents plaintiffs in the Florida, Alabama, and Kentucky cases, and is gearing up for an expected suit against Utah.

‘Help Not Harm’

These “Help Not Harm” laws are aimed at protecting “vulnerable children struggling with gender dysphoria,” Joseph Kohm, policy director at the Family Policy Alliance, said in a statement emailed to Bloomberg Law. FPA and its state affiliates have filed amicus briefs supporting the states.

They’re “critical, constitutionally sound measures that protect vulnerable children who are incapable of consent from experimental, harmful, and irreversible procedures,” Kohm said. The states have a compelling interest and moral obligation to intervene when “the medical profession proves incapable of regulating itself to protect its own patients,” he said.

“The gender ideology agenda is an affront to the truth that God made us in His image and that He made us male and female,” Liberty Counsel founder and chairman Mat Staver said. Children must be protected “from the devastating and sometimes irreversible effects of gender ideology,” he said.

Liberty Counsel, which is also tracking the gender-affirming care cases, is a Christian-based ministry that seeks to advance religious freedom, the sanctity of human life and the family through strategic litigation, according to its website.

Alliance Defending Freedom, which represents doctors’ groups that have challenged federal policies promoting transgender rights in health care, declined to comment for this story.

‘Extreme Government Overreach’

Whelan called the laws “extreme government overreach,” decrying states’ attempts to tell doctors how to do their jobs and parents how to raise their children. Governments don’t normally ban medical care for an entire group of people, she said.

The laws, moreover, flip the health-care system on its head by threatening to sanction professionals for providing treatments that are the standard of care, Whelan said.

Additionally, the facts don’t support the laws, Whelan said. Gender-affirming surgeries usually aren’t performed on children younger than their mid-teens, and the medications normally aren’t prescribed until at least puberty. Only very extraordinary circumstances would lead to this type of intervention at a younger age, she said.

Advocates Confident

The ACLU’s Nowlin-Sohl is confident the early victories will stand, but she and others representing the families and doctors recognize that the cases are in their early stages and still have a long way to go.

The Florida decision, for example, likely will be appealed to the US Court of Appeals for the Eleventh Circuit, Don Hayden said. It’s considered to be a conservative court, and six of its 12 active justices are Trump appointees.

Hayden, of Mark Migdal & Hayden in Miami, has filed friend-of-the court briefs supporting LGBTQ groups in several high-profile cases, including Obergefell v. Hodges, in which the US Supreme Court recognized a right to same-sex marriage.

Judge Robert L. Hinkle’s decision in the Florida case is so well-reasoned, it should be seen as persuasive by other courts, Hayden said. The equal protection discussion—based on the idea that the bans treat people differently based on their sex or transgender status—is very strong, he said.

Hinkle’s take that Florida’s ban was based on the assumption that gender identity isn’t real was “spot on,” Hayden also said.

Fight Continues

The fight is far from over.

A trial just ended in an Arkansas federal court, and the Alabama case is in the discovery stage. Other cases are pending in state and federal courts in Indiana, Idaho, Tennessee, Kentucky, Montana, Nebraska, and Oklahoma. Texas and Missouri likely will be targeted next.

In the long run, the US Supreme Court may decide whether the bans are unconstitutional or violate the Affordable Care Act’s anti-discrimination provision, but “even the Roberts court would think twice” before granting review of a case presenting these issues at this time, Hayden said.