Legislative Support for Transgender Youth Has Not Been Universal

In 2019, the state legislature enacted CGS sec 19a-132, establishing a Lesbian, Gay, Bisexual, Transgender and Queer Health and Human Services Network to make recommendations to the three branches of state government.

The expressed intent was to build a safer and healthier environment for gay, lesbian, bisexual, transgender and queer persons. Members of the committee charged with this directive are expected to conduct a needs analysis, collect additional data on community health and human services needs, inform state policy and build organizational member capacity, leadership and advocacy across the geographic and social spectrum of the LGBTQ community.

DMHAS’s web page acknowledges the difficulties associated with coming out and identifies a variety of programs available for assistance with those challenges. Behind the legislation and acknowledgment of the need for rights for transgender people is a medically recognized condition called gender dysphoria — discomfort or distress caused by a discrepancy between the gender that a person identifies as and the gender assigned at birth.

As Commissioner of the Department of Children and Families (DCF) for eight years, I became familiar with the unique set of mental and physical health needs experienced by transgender adolescents; these needs are compounded by prejudices that create barriers to accessing timely, culturally competent, medically appropriate and respectful care, and these barriers are associated with increased risk of violence and suicide. Additionally, transgender youth may have health needs related to gender transition that can create an unavoidable dependency on the medical system for basic identity expression.

This combination of high medical needs and barriers to accessing appropriate care may give rise to a self-perpetuating cycle of risk exposure, stigmatization, prejudice and eventually poor health outcomes and a high rate of suicide. Therefore, access to medical and psychological care is essential. I’m happy to report there are several programs in Connecticut serving this population and that DCF supports youth with gender affirming care as well as those youth diagnosed with gender dysphoria.

Other jurisdictions, however, are not so welcoming as we see legislation being proposed to criminalize or otherwise prevent the provision of gender affirming care for transgender adolescents. As of May 2021, at least 35 bills have been introduced targeting transgender people and their ability to seek medical care. Despite opposition from major medical organizations, including the American Medical Association, the American Academy of Pediatrics, and the American Psychiatric Association, several states have introduced legislation to criminalize the provision of such care. Others have made the provision of pubertal suppression or gender affirming hormones a felony and doctors who prescribe these medications subject to prison.

Arkansas’s legislature voted to make gender-related care inaccessible to transgender people under the age of 18, and although it may be the first state in the country to completely ban healthcare for transgender youth, nine states (Ala., Fla., La., Mo., Mont., N.C., S.C., Tenn., and Texas) are eager and poised to follow close behind, if they haven’t already.

Many of these bills propose to make it a crime or a cause for professional discipline for medical providers to deliver gender-affirming care to minors. Some also include penalties for parents who encourage or facilitate minors’ access to gender-affirming medical care. Others provide mechanisms for the state attorneys general to file suit against medical providers to enforce compliance. Finally, a few states include insurance-related provisions within their proposed bills that prohibit professional liability policies for medical providers from providing coverage for damages related to providing gender-affirming medical care to a minor. In short, access to gender-affirming care is in jeopardy for over 45,000 transgender youth across these ten states, and some of the literature has the number closer to 75,000. The danger here is that by the time these medications will be available to these adolescents, the window for their best use will be shut, often leaving surgical procedures as the only viable option.

The harm from these proposals is not solely to limit medical care. Some states are seeking to force teachers to reveal transgender students’ gender identities to their parents without their consent, something that could result in some youth becoming homeless or experiencing physical or emotional abuse from unaccepting and intolerant families. I can attest that such knowledge did indeed have such negative results for many youth who consequently found themselves in DCF care.

These bills are diverse, but all are aimed at removing access to gender-affirming medical care for transgender youth. But at what point does legislation become medical practice? When laws are enacted to withhold medically necessary care and treatments against the advice of medical authorities, are these legislatures going well beyond regulation in the broad public interest, potentially causing serious patient harm to youth? These bans against providing gender-affirming care are also putting health care providers into a difficult situation where they’re forced to discriminate under state law but prohibited from discriminating under federal law.

Notably, the Obama administration made clear in a 2016 rule that protections under Affordable Care Act, Section 1557, extend to bar discrimination based on sexual orientation, gender identity, transgender status and against women seeking abortion-related care. The Trump administration then removed women seeking abortions and LGBT people from the act’s non-discrimination protection, allowing health-care workers, hospitals and insurance companies that receive federal funding to refuse to provide or cover services such as abortions or transition-related care. The Department of Health and Human Services (HHS) then issued a notice that it would resume enforcing protections for LGBT Americans in health care, enforcing the law as it was initially intended. I would anticipate and fervently hope the Office of Civil rights of HHS will be more express beyond merely issuing that notice.

I would also anticipate litigation alleging, among other claims, that these laws violate the Equal Protection Clause of the Fourteenth Amendment of the US Constitution, anti-discrimination protections of the Affordable Care Act and the Americans with Disabilities Act and antidiscrimination protections in Title IX, consistent with Bostock v. Clayton County, Georgia, wherein the United States Supreme Court in 2020 ruled that Title VII of the 1964 Civil Rights Act prohibits employment discrimination against people because of their sexual orientation or gender identity. Although the Supreme Court laid out its reasoning in an employment context, I would expect arguments that the analysis applies equally in health care, education and housing.

The important thing is to recognize the challenges young people face, the psychological trauma they experience and that government policy in the aforementioned jurisdictions denying health care is harmful. Transgender youth are dependent on parents, schools, institutions and doctors to support them, help them live authentic lives and to access medical care as deemed appropriate by doctors. The movement in legislatures across the country to deny access will leave these youth in a very precarious place. According to the Williams Institute, based on where these bills are being proposed and where the youth live, 1 in 4 could be affected by the current proposals that are not grounded in science or majority medical opinion, and some have long-term implications for the survival of youth in these states.

This is not simply a cultural phenomenon. While the high visibility of transgender youth in this country is quite recent, transgender children themselves are not; in the past, they passed under the radar. What’s different now is how transgender people are talked about in academia, medicine, science and popular culture, particularly as awareness, knowledge and openness about transgender people and their experiences grow. Let’s hope those conversations continue and that the wave of harmful legislation stops.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved. Originally published here.