(Above photo by National_Progress_Party, from Wikimedia Commons)
The U.S. Justice Department, in recognition of the Transgender Day of Visibility, has issued guidance warning states federal law requires them to treat transgender youth with dignity, which means “ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care.”
The guidance, issued March 31 and signed by Kristen Clarke, assistant attorney general for civil rights, was delivered amid the advancement of a slew of measures in state legislature targeting transgender youth, including new laws inhibiting their access to transition-related care, prohibiting transgender girls from playing in women’s sports and barring instruction to youth on LGBTQ issues.
“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal legal guarantees,” Clarke writes. “State laws and policies that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment.”
Clarke also points out anti-transgender measures are unlawful federal laws prohibiting sex discrimination, such as Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, warning states violating these laws could lead adverse legal action.
“Courts have held that many nondiscrimination statutes contain an implied cause of action for retaliation based on the general prohibition against intentional discrimination, and agencies have made this clear in regulations,” Clarke said. “Thus, any retaliatory conduct may give rise to an independent legal claim under the protections described above.”
Among the states have recently enacted measures against transgender youth are Arizona, where Gov. Doug Ducey signed into law two bills against transition-related care and access to sports, and Oklahoma, where Gov. Kevin Stitt signed a sports measure.
