Not Just Trans Kids: Rulings Allowing Bans on Gender-Affirming Care are Part of a Larger Trend

Photo by Brandon Bell/Getty Images via PBS

As states across the country have begun to pass rulings on anti-trans healthcare bills, advocates for transgender youth have been handed victories in a number of states, including Florida, Tennessee, and Missouri. In other states, however, they have not had such luck. In Texas and Nebraska, state supreme courts have sided against plaintiffs seeking to block bans on gender-affirming care for minors with national implications.

In Texas, the State Supreme Court denied an emergency application to prevent a law against gender-affirming care for minors from going into effect, but has not yet passed a final ruling on the law’s constitutionality. Senate Bill 14, originally passed in June, banned effectively all gender-affirming healthcare for transgender minors: surgeries like mastectomies, hormone treatments, and puberty blockers “for the purpose of transitioning a child’s biological sex.” Under the law, insurance companies will be barred from providing coverage for such treatments, and doctors who prescribe them will risk losing their medical licenses.

In Nebraska, the ACLU sued the state in response to a bill targeting both abortion rights and gender-affirming care under the pretense that it violated the state’s single-subject rule. Legislative Bill 574 outlawed puberty suppressants, hormones, and gender-affirming surgeries for the purpose of helping minors, referring to anyone under the age of 19 in Nebraska, transition. It also banned abortions after 12 weeks gestation. The bill passed with a 33-15 vote, just enough to block a filibuster of the bill.

Nebraska’s state constitution prohibits laws that shoehorn unrelated bills together. However, the Nebraska Supreme Court found that LB 574 does not violate this article because both sections relate to healthcare.

Nationally, the main argument against bills prohibiting gender-affirming care is that such laws violate the 14th Amendment, the same amendment that served as legal reasoning in Supreme Court decisions on Roe v. Wade and interracial marriage.

The 14th amendment, specifically the first clause, prohibits states from depriving citizens of personal liberties without due process and explicitly states that no one can be deprived of the full protection of the law. 

Many lawsuits against state laws prohibiting gender-affirming care to minors cite the 14th Amendment, claiming that such laws both discriminate against trans kids and deprive them and their parents of the personal liberty to access care. The key question, then, is whether or not parents have the right to pursue gender-affirming care for their children, according to NPR.

Plaintiffs and their supporters argue that parents have the right to pursue gender-affirming care for their children. This decision, they would argue, is between parents, their children, and a licensed professional, not the state. 

Gender-affirming care is well documented to be safe and effective, with a decade of research to back it. One study published in 2022 found that, in transgender youths between the ages of 13 to 20, the use of puberty blockers and/or gender-affirming hormones led to a 60% reduction in depression and a 73% reduction in suicidality. Both of these interventions are largely reversible should a transgender person decide to stop taking them, although some changes, such as breast growth in estrogen treatments, may persist if taken over years. 

Gender-affirming surgeries, of course, are not so easy to reverse. They are, on the other hand, exceedingly rare for minors. From 2019 to 2021, insurance records show that just 56 genital surgeries were performed on minors and 776 mastectomies for gender dysphoria, less than 1,000 in total. Regret rates for gender-affirming surgeries are also lower than those across all surgical specialties at about 1%, relative to the industry average of 14%. 

In short, gender-affirming care is a safe, effective medical procedure like any other. Supporters of care-banning laws, however, argue that minors cannot consent to such measures. Parental consent laws for medical treatment of children already exist across the board, yet opponents to gender-affirming care argue that gender-affirming care should be an exception and illegal to provide. It might not stop with children, either: after allowing her state’s ban to go into effect, Alabama Judge Barbara Lagoa seemed to imply that similar restrictions for adults would also be constitutional.

In Roe v. Wade, the 14th Amendment was used to argue that broad laws against abortion violated the right to privacy and violated the pregnant person’s personal liberties. Since the Roe v. Wade decision was reversed last year, however, a window has opened for state legislatures to regulate abortion and similar medical decisions, including gender-affirming care. 

According to Judge Lagoa of Alabama, the Dobbs decision calls on the courts to consider the historical precedent for a given right when making decisions on the constitutionality of legislation. 

Under this interpretation, legislators have much more leeway to restrict the personal medical decisions of their constituents. Gender-affirming care, for example, lacks precedent as a legally protected right under this framework, particularly considering the 1973 Roe v. Wade decision was not found to provide sufficient backing to consider abortion a right.

In addition to falling into the “culture war,” the right to gender-affirming care also comes into the crossfire of an older debate around the role of the judiciary. Those in favor of letting the bans come into effect argue that the judiciary should not meddle in legislation except in extreme cases of unconstitutionality. By creating “new” rights, they would argue, the judiciary encroaches too far into the separation of power between itself and lawmakers.

The current legislative siege on gender-affirming care for children is only a symptom of a larger upheaval of legal precedent in the wake of the Dobbs decision. Previously, abortion being protected by the 14th Amendment gave courts reason to put much more stock into this argument in similar cases. Now, legislatures like those in Nebraska and Texas are much more free to circumscribe what their constituents can do with their bodies; the question is, where do parents’ rights end and the state’s right to intervene in the interest of public health begin?