Is it legal to ban care for transsexuals as requested by Idaho?

There are currently 22 states that have passed laws banning gender-affirming care for youths according to the Human Rights Campaign. Some states are considering legislation to bar healthcare providers from offering care such as hormone treatment or surgery to those over 18 as well.

However, civil rights groups and parents of trans youth are pushing back in the courts attaining victories to block the implementation of the bans on gender-affirming treatments. They claim that the restrictions on care for transsexuals is unconstitutional. Some courts have sided with them but others have allowed the bans to go into effect.

The question has been put to the Supreme Court by Idaho whose own law, which passed last year, was blocked from taking effect on 1 January 2024. The law allowed for fines of up to $5,000 against medical professionals who provide transgender minors with care such as puberty-blocking drugs, hormone therapy and certain surgeries.

Is it legal to ban care for transsexuals as requested by Idaho?

The legal arguments over why bans on gender-affirming treatment are illegal center around the 14th Amendment under the equal protection and due process clauses. Some courts have found that transgender status is a protected class, while others that discrimination against transexuals is sex discrimination.

However, two appeals courts that have rebuked lower-court decisions ruled that the rights being protected are not explicitly listed in the constitution. This was the view of the Supreme Court in the majority decision in Dobbs v. Jackson Women’s Health Organization which overturned the 50-year precedent of Roe v. Wade protecting abortion access.

Additionally, two rulings last year allowing gender-affirming care bans to go into effect argued that they do not target trans youth on the basis of sex and thus not sex discrimination.

Trans advocates and lawyers need consensus

Ezra Ishmael Young, a civil rights lawyer and scholar, told the 19th that advocates and lawyers for trans rights need to reach a consensus on how and whether to use sex discrimination to defend gender-affirming treatment in court. Without it the waters could be muddied with too many conflicting approaches.

Another route that is being pursued by those defending care for transsexuals is along the lines of due process guaranteeing parental rights. Harvard Law Review explains that freedom in child rearing is one of the foundational rights. Basically, a parent knows better than the state what is in the best interest of their child like authorizing medically necessary treatment. “Gender-affirming care bans would likely violate this right,” the paper says.

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