The Courts Are in Consensus So Far: Anti-Trans Healthcare Bans Are Unconstitutional

One judge in Florida challenged the supposed reasoning behind one of these bigoted laws, telling state officials to "put up or shut up."

By Nora Biette-Timmons | June 23, 2023 | 5:00pm

Politics

The Courts Are in Consensus So Far: Anti-Trans Healthcare Bans Are Unconstitutional

When the Supreme Court overturned Roe v. Wade one year ago, the conservative movement got what it had fought nearly five decades for—and appeared to immediately pivot all of that rights-restricting energy toward trans people. Though Republicans have been trying to regulate trans people out of public life since at least 2016 (when North Carolina received swift backlash for passing its infamous bathroom bill), this year, there’s been an explosion of legislation across the U.S.: More than 530 anti-trans bills have been introduced in state legislatures, up from 144 in 2021, and many have passed into law. Fortunately, there’s been a slight reprieve as these laws have begun to make their way through the judicial system—just this month, federal judges have overturned three bans related to gender affirming healthcare in Florida and Arkansas.

Arkansas was the first state to pass a ban on healthcare for trans minors more than two years ago, and U.S. District Judge Jay Moody finally permanently issued an injunction against it on Tuesday. Moody ruled that the prohibition would have violated transgender kids’ right to due process and equal protection as well as medical providers’ First Amendment rights, the Associated Press reported.

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In his decision, Moody wrote: “Rather than protecting children or safeguarding medical ethics” —which the ban had claimed to do—“the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the State undermined the interests it claims to be advancing.”

Earlier this month, in his ruling on Florida’s ban on gender-affirming care for minors, U.S. District Judge Robert Hinkle had even stronger words for the anti-trans state officials who were defendants in his case: “The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it,” he wrote.

He continued:

Despite the defense admissions, there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham…

Still, an unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the statute and rules at issue—and just below the surface in the testimony of some of the defense experts—is that transgender identity is not real, that it is made up. And so, for example, one of the defendants’ experts, Dr. Paul Hruz, joined an amicus brief in another proceeding asserting transgender individuals have only a “false belief” in their gender identity—that they are maintaining a “charade” or “delusion.” Another defense expert, Dr. Patrick Lappert—a surgeon who has never performed gender-affirming surgery— said in a radio interview that gender-affirming care is a “lie,” a “moral violation,” a “huge evil,” and “diabolical.” State employees or consultants suggested treatment of transgender individuals is either a “woke idea” or profiteering by the pharmaceutical industry or doctors.

Any proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.

Hinkle’s ruling was a preliminary injunction that applied only to the three plaintiffs, who sought to be able to continue their gender-affirming care in the state after Gov. Ron DeSantis (R) signed the bill last month. However, as Politico noted, Hinkle’s strong words and emphasis that the ban appeared to be purely political and have no medical basis “suggests that a key part of the law itself could get knocked down as the legal challenge proceeds.”

On Wednesday, Hinkle also overturned a law that sought to prevent Medicaid funds from being used for trans healthcare—another recent DeSantis special.

State officials in Arkansas have pledged to appeal Moody’s ruling; Gov. Sarah Huckabee Sanders (R) tweeted that allowing minors to transition is “the far-Left’s woke vision of America.” A law she signed that takes effect later this summer makes it easier for people to sue doctors who provide gender-affirming care for kids, the AP noted.

(Every time this comes up, I feel I must note that, even when legal, minors receive gender-affirming surgeries at extremely low rates. The World Professional Association for Transgender Health does not recommend genital surgery for trans individuals before they reach adulthood. Lying about the frequency of top and bottom surgery is a favored scare tactic of the right.)

The landscape for trans healthcare is still, of course, not a rosy one: Florida’s spate of anti-trans laws, for example, has prompted journalist and activist Erin Reed to declare the state a “do not travel” zone. During an appearance on the 5-4 podcast earlier this week, she noted that anti-trans lawmakers will likely use maneuvers similar to TRAP (targeted restrictions on abortion) laws to make such healthcare as difficult as possible, if they keep losing in the courts.

But right now, we’re in a place where courts have not only delivered rulings upholding the rights of transgender individuals, but also affirmed that they exist and deserve to exist—and during Pride Month, no less.