DOJ Warns State AGs Not to Block Access to Gender Affirming Care

April 1, 2022 by Reece Nations
DOJ Warns State AGs Not to Block Access to Gender Affirming Care
Attorney General Merrick Garland listens during a meeting at the Justice Department, March 10, 2022, in Washington. (Kevin Lamarque/Pool Photo via AP, File)

WASHINGTON — The Department of Justice warned all state attorneys general on Thursday that preventing transgender youth from receiving gender-affirming care infringes on the constitutional protections of the 14th Amendment.

The Justice Department’s warning came in a letter signed by Assistant Attorney General Kristen Clarke of DOJ’s Civil Rights Division which outlined a series of federal statutes that guarantee patients’ rights to access gender-affirming care. 

Clarke’s letter, which coincided with International Transgender Day of Visibility, warns the AGs establishing discriminatory barriers designed to prevent individuals from receiving gender-affirming care contravenes a number of federal legal guarantees.

“The Department of Justice is committed to ensuring that all children are able to live free from discrimination, abuse and harassment,” Clarke said in a written statement. “Today’s letter reaffirms state and local officials’ obligation to ensure that their laws and policies do not undermine or harm the health and safety of children, regardless of a child’s gender identity.”

The letter warns that recipients of federal financial assistance are required by law to comply with nondiscrimination requirements. By criminalizing or restricting a type of medical care predominantly sought by transgender people, an intent to disfavor can “readily be presumed” under the Supreme Court’s ruling in Bray v. Alexandria Women’s Health Clinic.

The statutes cited in the letter were: 

  • Section 1557 of the Affordable Care Act 
  • Title IX of the Education Amendments of 1972 
  • Title II of the Americans with Disabilities Act 
  • The Omnibus Crime Control and Safe Streets Act of 1968 
  • Section 504 of the Rehabilitation Act of 1973 

Any “retaliatory conduct” may result in an independent legal claim under the protections outlined in the laws. Additionally, the letter states the due process clause of the 14th Amendment assures parents the right “to seek and follow medical advice” in regard to their children’s health.

Previously, The Well News reported district attorneys from some of Texas’s largest counties issued a joint statement indicating they would refuse to cooperate with Attorney General Ken Paxton’s non-binding legal opinion declaring gender-affirming care to be child abuse under state laws. 

Texas Gov. Greg Abbott issued a directive following Paxton’s opinion that compelled the Texas Department of Family and Protective Services to investigate providers of gender-affirming care for child abuse with the threat of criminal penalties.

Travis County District Court Judge Amy Clark Meachum issued an injunction against the governor’s directive in March to prevent its enforcement, as previously reported in The Well News. Paxton filed an appeal against the decision.

Arizona Gov. Doug Ducey signed a pair of bills into law on Wednesday directed at transgender youth. The laws forbid transgender athletes from competing on women’s and girls’ sports teams at some schools and restricts access to gender-affirming health care for minors.

More than 130 bills targeting transgender youth have been proposed across 34 states over the course of this year’s legislative sessions, according to the bipartisan LGBTQ+ advocacy organization Freedom for All Americans. 

Freedom for All Americans and the Human Rights Campaign announced on Wednesday over 200 major companies had signed on in support of the groups’ joint business statement opposing restrictive LGBTQ+ legislation across the country.

“We are committed to combatting the hate crimes that target and terrorize the transgender community – particularly transgender women of color,” United States Attorney General Merrick Garland said in a written statement. “And we are committed to ensuring the equal protection of transgender people under the law.”

Garland continued, “Transgender individuals deserve to be able to live free from discrimination, harassment, violence, and threats of violence. Transgender youth deserve to be loved and protected. And members of the transgender community deserve to be treated with dignity and respect.” 

Reece can be reached at [email protected]

 

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