Trans care bans for kids are testing federal courts in new ways

Gender rights activists demonstrate outside the U.S. Supreme Court on June 30, 2023, in Washington, D.C. Many of the bans states passed this year against gender-affirming health care for youth are in federal court and may be on their way to the U.S. Supreme Court.

Olivier Douliery/AFP via Getty Images

LOUISVILLE, Ky. – Of the 20 states restricting gender-affirming hormone therapy, nearly half are being challenged in federal court.

At the heart of these lawsuits is this question: Do bans on gender-affirming care violate the U.S. Constitution’s Fourteenth Amendment?

(A reminder: The Fourteenth Amendment says states can’t deprive people of liberty without due process and can’t deny people equal protection under the laws.)

Abigail Moncrieff is the co-director of Cleveland State University’s Center for Health Law and Policy and says, “The problem with gender-affirming care is that it’s never been challenged before.”

“The question of, ‘Do parents have a right to provide their children with gender-affirming care?’ is a new question,” she says.

Plaintiffs, including trans kids and their parents, claim the laws violate parents’ due process right to direct their children’s care. They also argue the laws illegally discriminate against trans kids.

Almost all the lawsuits are still in the early stages, with judges mainly deciding whether to block the bans while the cases play out in courtrooms.

But, so far, the rulings can be separated into two camps.

Camp 1

The first camp, including rulings from several district courts, says parents probably do have a right to get their kids gender-affirming hormone therapy.

Moncrieff…