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Healthcare Access for Transgender Children and Teenagers Could Clash at Federal, State Levels

April 27, 2022

Healthcare Access for Transgender Patients

Various bills in state legislatures across the United States are seeking to ban or limit gender-affirming healthcare options for transgender children and teenagers, with new laws carrying the threat of imprisonment for medical providers and parents who do not comply.

This trend culminated this month with Alabama Gov. Kay Ivey signing a bill that criminalizes gender-affirming healthcare for transgender and nonbinary youth. The law makes it a felony,  punishable by up to 10 years in prison and a fine of up to $15,000, for doctors to provide or recommend interventions such as puberty blockers and hormone therapies to people younger than 19-years-old.

Alabama isn’t alone in this – Texas’ governor and attorney general have labelled gender-affirming healthcare for minors as “child abuse” and last month a bill passed the Idaho House that would make medical treatments for transgender youth a felony, punishable by life in prison.

Valarie Blake, professor of law at West Virginia University and author of LexisNexis Civil Rights & Strategy Series: Federal Health Care Laws, says this trend is likely to continue and will likely lead to a clash of state and federal laws at the expense of medical professionals.

“The position healthcare providers are in is untenable,” Blake says. “They may face criminal, civil, and licensure threats all for doing what they believe is medically appropriate, and what federal antidiscrimination law demands of them.”

Gender Discrimination and the Affordable Care Act 

Section 1557 of the Affordable Care Act bans sex discrimination by healthcare providers that take federal money, and recent case law suggests this includes gender identity discrimination, but there’s still a lot that is yet to be decided

“Enforcement here is tricky,” says Blake. “The healthcare workers who have to comply with these laws are not the ones in the wrong. They are being put in an impossible place between federal and state laws.”

There could be an increase in federal cases seeking to halt enforcement of these laws and potentially federal enforcement from the U.S. Department of Health and Human Service’s Office for Civil Rights (HHS OCR).

HHS OCR has a rule interpreting Section 1557 that can be found at 45 CFR 92 et seq. The rule has gone through several iterations, first by the Obama administration, then the Trump administration. The Biden administration is anticipated to propose their version in the coming months.

But what are the implications? Very likely more cases and continued litigation.

“Federal lawmakers don’t want to penalize the wrong group and state lawmakers know this,” Blake says. “So they’re continuing with these unlawful bills. Ultimately, litigation may be needed to enjoin the enforcement of these state laws.” 

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