Biden’s DOJ Warns States’ AGs: Feds Back ’Gender-Affirming Care’ Rights for ‘Transgender’ Children 

Joe Biden’s Department of Justice is warning states’ Attorneys General that it will go after what it considers discrimination if “transgender youth” are denied so-called “gender-affirming care,” including medical and drug treatments.

The letter, dated March 31, 2022, comes from Kristen Clarke, assistant Attorney General with the DOJ’s Civil Rights Division.

While it is not clear if the agency will target states that have put laws in place to protect minors from life-altering treatment and surgery, the letter lays out what federal laws “may” have been violated. The letter said:

State laws and policies that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment.

The letter also said, in part:

The U.S. Department of Justice (the Department) is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal law. This includes ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care. We write to remind you of several important federal constitutional and statutory obligations that flow from these fundamental principles.

People who are transgender are frequently vulnerable to discrimination in many aspects of their lives, and are often victims of targeted threats, legal restrictions, and anti-transgender violence.1 The Department and the federal government more generally have a strong interest in protecting the constitutional rights of individuals who are lesbian, gay, bisexual, transgender, queer, intersex, nonbinary, or otherwise gender-nonconforming and in ensuring compliance with federal civil rights statutes. The Department is also charged with the coordination and enforcement of federal laws that protect individuals from discrimination in a wide range of federally-funded programs and activities.

A law or policy need not specifically single out persons who are transgender to be subject to heightened scrutiny. When a state or recipient of federal funds criminalizes or even restricts a type of medical care predominantly sought by transgender persons, an intent to disfavor that class can “readily be presumed.” For instance, a ban on gender-affirming procedures, therapy, or medication may be a form of discrimination against transgender persons, which is impermissible unless it is “substantially related” to a sufficiently important governmental interest. This burden of justification is “demanding.” Such a law or policy will not withstand heightened scrutiny when “the alleged objective” differs from the “actual purpose” underlying the classification. In addition, the Due Process Clause protects the right of parents “to seek and follow medical advice” to safeguard the health of their children. A state or local government must meet the heavy burden of justifying interference with that right since it is well established within the medical community that gender-affirming care for transgender youth is not only appropriate but often necessary for their physical and mental health.

The letter then lists what the agency claims are applicable laws:

• Section 1557 of the Affordable Care Act protects the civil rights of people—including transgender youth—seeking nondiscriminatory access to healthcare in a range of health programs and activities. Categorically refusing to provide treatment to a person based on their gender identity, for example, may constitute prohibited discrimination under Section 1557. As the U.S. Department of Health and Human Services has stated, restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care providers solely on the basis of their sex assigned at birth or their gender identity may also violate Section 1557.

• Title IX of the Education Amendments of 1972 prohibits sex discrimination, including sex-based harassment by recipients of federal financial assistance that operate education programs and activities. Policies and practices that deny, limit, or interfere with access to the recipient’s education program or activity because students are transgender minors receiving gender-affirming care may constitute discrimination on the basis of sex in violation of Title IX.

• The Omnibus Crime Control and Safe Streets Act of 1968 prohibits sex discrimination in certain law enforcement programs and activities receiving federal financial assistance. If a law enforcement agency takes a transgender minor who is receiving gender-affirming care into custody or arrests the child’s parents on suspicion of child abuse because the parents permitted such medical care, that agency may be violating the statute’s nondiscrimination provision.

• Section 504 of the Rehabilitation Act of 1973 protects people with disabilities, which can include individuals who experience gender dysphoria. Restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate Section 504.

The letter concluded by thanking state AGs for “your continued commitment to improving the well-being of children and their families.”

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