Federal government supports ‘gender-affirming care’ for trans children

Joe Biden’s Justice Department warns state attorneys general it will pursue what it sees as discrimination if ‘transgender youth’ are denied so-called ‘gender-affirming care,’ including medical and drug treatments.

The letter, dated March 31, 2022, is from Kristen Clarke, assistant attorney general in the DOJ’s Civil Rights Division.

While it’s unclear whether the agency will target states that have laws in place to protect minors from life-changing treatments and surgeries, the letter does indicate which federal laws “may” have been violated. The letter said:

State laws and policies that prevent parents or guardians from following the advice of a medical professional regarding medically necessary or otherwise appropriate care for transgender minors may violate the rights protected by both the equal protection clauses and Due Process of the Fourteenth Amendment.

The letter also said, in part:

The United States 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 these young people are not subject to unlawful discrimination based on their gender identity, including when seeking gender-affirming care. We are writing to remind you of several important federal constitutional and statutory obligations that flow from these fundamental principles.

Transgender people are frequently vulnerable to discrimination in many aspects of their lives and often face targeted threats, legal restrictions and anti-transgender violence. rights of lesbian, gay, bisexual, transgender, queer, intersex, non-binary, or otherwise gender-nonconforming people and to ensure compliance with federal civil rights laws. The Department is also responsible for coordinating and enforcing federal laws that protect individuals from discrimination in a wide range of federally funded programs and activities.

A law or policy does not need to specifically name transgender people for them to be scrutinized. When a state or recipient of federal funds criminalizes or even restricts a type of medical care primarily sought by transgender people, an intent to disadvantage that class can “easily be presumed.” For example, the banning of gender-affirming procedures, therapies, or medications may be a form of discrimination against transgender people, 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 stand up to scrutiny where the “alleged objective” differs from the “actual purpose” underlying the classification. Additionally, the Due Process Clause protects the right of parents to “seek and follow medical advice” to protect the health of their children. A state or local government must bear the heavy burden of justifying interference with this right, as 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 to be the applicable laws:

• Section 1557 of the Affordable Care Act protects the civil rights of people, including transgender youth, who seek non-discriminatory access to health care across a range of health programs and activities. Flatly refusing to provide treatment to a person because of their gender identity, for example, may constitute prohibited discrimination under Section 1557. assertion of care, from their health care providers only based on their sex assigned at birth or gender identity may also violate Section 1557.

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

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

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

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

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