Wave of transgender health care bans has roots in past debates
Dr. Gwendolyn Herzig, owner of Park West Pharmacy in Little Rock, speaks against an Arkansas bill that would allow medical malpractice lawsuits against doctors who provide gender-affirming care to transgender minors before the Senate Judiciary Committee on Feb. 13, 2023. Herzig’s pharmacy provides gender-affirming hormones to transgender Arkansans. (Tess Vrbin/Arkansas Advocate)
In the past two years, 19 states have banned or restricted gender-affirming care for minors, and another 12 states are considering it — a tidal wave of policy change that has emboldened many Republicans on the far right while terrifying transgender youth and their families.
Gender-affirming care for transgender patients can cover pediatrics, psychiatry and endocrinology. Doctors may offer hormone treatments such as puberty blockers to patients under 18 to address gender dysphoria, which often worsens when bodies develop during adolescence. The “top” and “bottom” surgeries that have especially rankled the conservative base of the Republican Party are rarely performed on minors.
But Republican lawmakers have found traction in restricting such care for minors, and increasingly for adults as well.
“The American people still don’t really understand the issue, but they also believe that men are men and women are women,” said Terry Schilling, president of the American Principles Project, a conservative think tank that has advocated in favor of restricting such care for youth.
Oklahoma on Tuesday became the latest state to ban gender-affirming care for minors, with Republican Gov. Kevin Stitt signing a measure that prohibits hormone therapy and surgery for anyone under 18.
Among other recent laws is one in North Dakota, where doctors who perform surgeries such as a phalloplasty, vaginoplasty or mastectomy on a minor could be charged with a class B felony, while those who prescribe medication such as puberty blockers could be charged with a class A misdemeanor.
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Other states have also taken strong measures against medical professionals who provide gender-affirming care.
Just weeks before Republican Gov. Doug Burgum signed North Dakota’s bill into law April 20, Republican governors in Indiana and Idaho signed similar legislation. The Indiana law restricts access to medical care for trans youth, while the Idaho law criminalizes such care.
Missouri Republican Attorney General Andrew Bailey in April imposed an “emergency” rule severely restricting gender-affirming care for both minors and, for the first time in the country, adults as well — though that ban has been put on hold by a state judge.
And in Montana, GOP Gov. Greg Gianforte last week signed legislation banning such care for minors, shortly after the Republican House exiled the chamber’s only transgender lawmaker, Democratic Rep. Zooey Zephyr, for her tone in opposing the bill.
In state legislatures across the country, the number of bills restricting gender-affirming health care has nearly doubled since last year, according to data from the American Civil Liberties Union.
The recent swell in legislation affecting transgender patients under 18 comes almost a decade after LGBTQ activists notched a major victory with the U.S. Supreme Court’s decision in Obergefell v. Hodges, which guaranteed the right to same-sex marriage. After that defeat, conservatives needed to find another social issue that would drive their base’s turnout and trans rights emerged as that new lightning rod, according to Chinyere Ezie, a senior staff attorney at the Center for Constitutional Rights who advocates for LGBTQ clients.
“Unfortunately, but perhaps not surprisingly, transgender people were identified as that wedge issue because of the lack of understanding about trans people and their experience, the fact that most Americans will report that they actually have never met a transgender person in their life,” Ezie said.
“So it’s often a community that is described and discussed with a level of abstraction by politicians and legislators,” she said.
Even if more people know someone who is transgender today, advocates for restricting health care have zeroed in on Americans’ complicated feelings toward trans people.
More than 40% of American adults know someone who is transgender, according to a 2022 Pew Research Center poll. Yet 46% of Americans favor making it illegal to provide minors with medical care supporting a gender transition. At least 37% of Americans favor investigating parents for child abuse if they assist a minor with medical care for a gender transition, while 36% are opposed, according to the poll.
There is a wide partisan divide on the issue: Seventy-two percent of Republicans and only 26% of Democrats believed providing care to minors should be illegal, the poll found.
So it's often a community that is described and discussed with a level of abstraction by politicians and legislators.
– Chinyere Ezie, a senior staff attorney at the Center for Constitutional Rights
The recent wave of state legislation restricting gender-affirming care couldn’t have built momentum without the previous deluge of state legislation banning transgender female athletes from participating on girls sports teams, according to Schilling, of the American Principles Project.
In 2016, LGBTQ advocates and corporate interests nationwide united in opposition to North Carolina’s controversial “bathroom bill,” which required people to use public bathrooms corresponding to the gender on their birth certificate. The NBA relocated its All-Star Game in protest, and major corporations such as Bank of America, Wells Fargo and Dow Chemical demanded that the law be repealed.
The controversy cost the state an estimated $600 million in lost business and, according to some observers, damaged the reelection prospects of Republican Gov. Pat McCrory, who had vigorously defended the bathroom bill. McCrory was defeated in November 2016, and North Carolina legislators repealed the law in 2017.
“When he lost [reelection], they basically collected a scalp and used him as an example of what happens to you when you do a bathroom bill. And that was really tough,” Schilling said. “But that all changed once the transgender sports issue hit the scene.”
Schilling’s group capitalized on a growing concern over transgender girls’ participation in girls sports.
In the 2019 Kentucky gubernatorial race, American Principles produced a campaign ad attacking Democratic candidate Andy Beshear featuring the tagline “Andy Beshear supports legislation that would destroy girls’ sports.”
Beshear won, but conservatives had discovered a winning strategy: Once they started framing their argument around fairness, legislation banning transgender athletes began gaining traction in one state after another. They also discovered, Schilling noted, that focusing their campaigns on children resonated with Americans.
“Maybe we should be polite and accommodating to some people, but they don’t think that kids can consent to puberty blockers or sex changes,” Schilling said. “They want to protect kids.”
What both the bans on gender-affirming care and the restrictions on transgender female athletes have in common is a specific messaging that targets childhood and innocence, according to Zein Murib, an assistant professor of political science at Fordham University who specializes in LGBTQ politics.
“What is being exploited here is the perception that certain children are innocent and need protection, and others don’t,” Murib said.
Schilling rejects the narrative that conservatives are flocking to transgender issues because they lost the fight against gay marriage.
“No, this is not a replacement for gay marriage as a base issue. In fact, they are the ones that declared war on us and our kids,” he said. “We saw the issue of mutilating children sexually as a real threat to the American people in the nation. I know that sounds hyperbolic because not many kids do it. Well, it’s growing and it’s growing insanely.”
Republicans may not endanger themselves politically by pushing for the medical care bans on minors, but there’s a chance they could still overplay their hand on the issue, said Republican pollster Dan Judy.
“That’s certainly a concern because while most voters out there want to proceed cautiously with these sorts of things where kids are involved, they also care about kids. They don’t want to be cruel. They don’t want to be seen as bullying,” Judy said. “Any sort of rhetoric or any sort of legislation that veers into that can easily, easily turn somebody’s opinion around on what they’re willing to support.”
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Most medical professionals do not view gender-affirming care as a threat. The American Medical Association has opposed state bans on gender-affirming care, stating: “Gender-affirming care is medically-necessary, evidence-based care that improves the physical and mental health of transgender and gender-diverse people.” The group is joined by the American Academy of Pediatrics and the American Psychiatric Association.
Still, research is incomplete. A recent investigation by The New York Times found concerns about long-term effects on patients’ brain development and bone density after taking medications related to gender-affirming treatment.
Finland and Sweden have set new limits on the drugs’ use, and England’s National Health Service has proposed restricting usage to research settings.
In some states, the punishment for providing gender-affirming care could mean heavy fines or a revoked license. The very presence of bills that would ban this type of care have a chilling effect both on medical providers and their patients, said Dr. Debbie Greenhouse, a pediatrician in South Carolina and a spokesperson for the American Academy of Pediatrics.
In late March, a bill banning transition surgeries, puberty blockers and hormone therapy for those under 18 advanced in South Carolina’s Senate. The bill remains in committee.
“I’ve had several families leave the state of South Carolina because they were afraid of this,” Greenhouse said. “The parents made it very clear in each scenario that they were doing this to protect their child.”
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