Last week, federal courts in Tennessee and Kentucky moved to temporarily block laws that would ban important health care for trans minors in those states. In their rulings, the two judges — one appointed by President Donald Trump, the other by President Barack Obama — found common ground: Bans on gender-affirming puberty blockers and hormone treatments are highly likely to be unconstitutional.
Both decisions concluded that the bans are grounded in unsupported claims about the risks of gender-affirming care for young people and would cause irreparable harm.
Federal judges, both liberal and conservative, in six states have now blocked laws banning transition-related health care for minors, including a major ruling in Arkansas that permanently blocked such a ban and included over 300 statements of fact countering the state’s fallacious arguments.
Despite the unanimity and unambiguity of recent court decisions, Republicans have made clear that they plan to brute force their eliminationist assault on trans people into legal reality.
Whatever relief we might rightly feel for the blocks on these pernicious laws, the far right knows how to bend legal paradigms to their will through tireless and well-funded campaigns, working through the minority rule of Republican-led statehouses until eventually reaching the Supreme Court. The same playbook hacked away at abortion access until an established right was wholly overturned, and settled law was ripped to shreds.
The far right knows how to bend legal paradigms to their will through tireless and well-funded campaigns.
“State legislatures have systematically moved to attack and erode bodily autonomy,” said the American Civil Liberties Union’s Chase Strangio, an attorney who has been on the front lines of legal battles against the ongoing avalanche of anti-trans laws. “They’ve done it with abortion, they’ve done it with gender-affirming care. It’s the same people, it’s the same organizations, and they’ve been able to do it because our state legislatures are gerrymandered.”
“The question becomes: Are the federal courts or the state courts a check on that?”
Republican state governments have shown they are readied with swift and robust legal responses, should their cruel bans meet federal challenges. Immediately after the Tennessee ruling, the state’s attorney general filed a notice of appeal and an emergency motion to stay the injunction. The state GOP hopes to push their infirm case to a higher court, while aggressively attempting to force through a ban on medically necessary health care as legal proceedings play out.
In Arkansas, U.S. District Judge James Moody Jr. found the state’s ban to be both definitively unconstitutional and based on a total lack of scientific evidence. An eight-day trial examined ubiquitous Republican claims that gender-affirming treatments for youths are too experimental, harmful, often regretted, and banned by numerous European nations. All claims were found to be false, unconvincing, and contrary to strong evidence.
Arkansas Attorney General Tim Griffin nonetheless vowed to appeal the judge’s extensive and detailed ruling, repeating the same discredited lines about “protecting our children against dangerous medical experimentation.”
The appeal will go up to the 8th U.S. Circuit Court of Appeals, which — although one of the most conservative federal courts in the country — has already upheld a temporary block on the law in a ruling by a three-judge panel. While this is cause for optimism, success in a full appeal trial is never assured.
In the longer term, should such a case make its way to the far-right Supreme Court — as Republican forces behind these laws desire — the risk of the conservative majority siding with reactionaries over civil rights remains considerable.
“The fascistic attack on gender variance is an unabashed GOP priority.”
Strangio noted that the 2020 Bostock v. Clayton County Supreme Court decision, which protects trans and other LGBTQ+ workers against discrimination, is “closely analogous” to arguments in the youth health care cases. He cautioned, however, that “we haven’t had a big trans constitutional case in the Supreme Court. There’s nothing that fully answers the question of what doctrines are going to help us.”
The Supreme Court’s recent decision in favor of religious convictions and against gay rights is hardly encouraging, and the Dobbs ruling underlined the conservative majority’s willingness to see the criminalization of established, necessary medical practices that enable bodily autonomy.
Meanwhile, 491 anti-trans bills have been proposed nationwide in the last year alone and are passing at a frightening clip. The fascistic attack on gender variance is an unabashed GOP priority, especially after hard-line anti-abortion stances appeared to harm rather than help Republicans in the midterm elections.
Urgency dictates that attorneys representing trans teens and their supportive parents use any and every tool available in court to stop these bans, including appeals to the parents’ right “to make decisions concerning the care, custody, and control of their children.” Parental rights have long been recognized by the Supreme Court; the Arkansas judge’s decision cited a ruling that called them “perhaps the oldest of the fundamental liberty interests recognized by this Court.” It is a grim fact that in other terrains, parental rights are invoked by right-wingers to crush pro-LGBTQ+ and anti-racist expression and education.
This uneasy reliance on the parental rights argument is a reminder that the struggle for universal LGBTQ+ liberation will have to go far beyond effective courtroom strategies, lest health care remain accessible only to the parentally supported and well resourced.
Just as Dobbs ended the right to a procedure that was already de facto inaccessible in dozens of states, trans youth health care bans outlaw treatments that are already hard to access, especially for poor trans youth of color and those who lack material resources or parental support.
A victory for trans youth and adults does not only entail stopping anti-trans laws, but also making necessary treatments robustly available. For such a possibility, free, good health care for everyone is a necessity.
Democrats failed for decades to vigorously defend reproductive rights by lending all too much credence to the Christian right’s anti-abortion stance. President Bill Clinton’s famous phrase — that abortion should be “safe, legal, and rare” — treated abortion as an unfortunate necessity rather than an integral part of bodily autonomy and a public good.
There’s a relevant analogy here between the common liberal treatment of trans kids: that they’re an unfortunate rarity, which should be tolerated but not celebrated. Against such a threadbare defense of trans existence, the violently committed anti-trans right will surely win.
“You have a popular discourse playing far more hostile to trans people, far more open to misinformation, than a federal court is at this stage.”
Liberals putatively opposed to the GOP’s draconian anti-trans onslaught should take heed of the judges’ rulings on trans youth health care. All too many powerful liberal organs — the New York Times perhaps chief among them — have channeled Republican talking points by treating trans children as a site of peril, and gender-affirming treatment for kids as potentially too experimental.
In point after point, however, federal judges from Florida to Tennessee to Arkansas have agreed that arguments treating gender-affirming treatments for youths as untested and dangerous are, quite simply, not based in fact.
“What is clear is that before all kinds of judges, when these bans are tested by what the states are claiming is their evidence, they categorically fail,” Strangio told me. “What that means is that you have a popular discourse playing far more hostile to trans people, far more open to misinformation, than a federal court is at this stage.” Strangio added that “it would be helpful if the center left media were to then cover the cases, after having sparked fear everywhere.”
The original district court ruling in Arkansas that temporarily blocked that state’s trans youth health care ban was explicit that the law aimed “not to ban a treatment,” since hormone therapies, puberty blockers, and surgeries that can affirm a person’s gender identity are not banned for cisgender minors. Rather, the laws aim “to ban an outcome that the State deems undesirable.”
Republican forces know this; their aim is to eradicate gender nonconformity. It’s unsurprising that they’re barging forward with this effort, regardless of harsh courtroom rebukes.
Claims about dangerously experimental treatments and vulnerable, confused youths lured into transitioning have always been a Trojan horse. Federal courts have now consistently recognized this. At this point, so-called progressives who continue to entertain and echo bunk talking points about medical risk reveal themselves as more interested in eliminationist outcomes than they’d like to admit.
This content originally appeared on The Intercept and was authored by Natasha Lennard.