Two of the largest red states are set to adopt new bans on gender-affirming health care for trans children.
The Texas legislature passed a ban Wednesday on gender-affirming care for kids under 18, which includes hormone treatments and gender-affirming surgeries, though such surgeries are rarely performed on children. The ban allows trans teens already receiving hormone treatments to temporarily continue them. Still, it requires that they “wean” themselves off the treatments. Republican Gov. Greg Abbott is expected to sign the bill.
Florida Republican Gov. Ron DeSantis, who is reportedly gearing up to announce his 2024 presidential bid next week, also signed a similar ban in his state Wednesday, one that imposes felony penalties on health care providers who administer gender-affirming care to kids under 18. The law includes a provision that concerns custody disputes for a child receiving gender-affirming care, and, though it only applies to a narrow set of circumstances, advocates worry that it could lead to Florida overriding other states’ rulings.
Both laws are part of the GOP’s coordinated national campaign against LGBTQ rights in state legislatures. Florida alone has already passed more anti-LGBTQ legislation this session than it did in the seven years prior; Texas is on track to pass more than double the number of similarly anti-LGBTQ laws than it did over that same period, said Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign.
The latest bans on gender-affirming care could force many families of trans children in Florida and Texas to move — that is, if they haven’t already left those states. “To have this kind of care ripped away is going to have life-altering impacts on these families,” Oakley said. “If you’re not able to keep your child safe and you have the means to go elsewhere, of course it’s something that you’re considering and it’s probably something that folks have been considering before this year.”
What’s in the Florida law
Advocates are challenging parts of the Florida law on an emergency basis in court, arguing that it violates parents’ fundamental rights to make medical decisions for their children and that it violates the Constitution by discriminating against transgender children. A hearing in the case is scheduled for Friday.
Simone Chriss, director of the transgender rights initiative at Southern Legal Counsel Inc. and a member of that legal team, said the custody provision of the Florida law has caused consternation among families of trans children. It allows a Florida court to take jurisdiction over child custody disputes when an out-of-state parent is pursuing gender-affirming care for their child and the child is present in Florida, even if only temporarily. It’s the only provision of its kind in the country, said Shannon Minter, legal director at the National Center for Lesbian Rights and also a member of that team.
“I have had to spend an inordinate amount of time dispelling misinformation about the custody provisions specifically,” Chriss said. “The misinformation alleging that the state can take children away from their parents — which is just completely untrue and wildly unfounded — [has caused] fear and, honestly, trauma among so many folks in this community.”
The law doesn’t apply to children who aren’t the subject of a custody battle in another state. And it wouldn’t allow the state to take custody of children who are provided with gender-affirming care in Florida.
Chriss laid out a scenario in which it would apply: A family is living in California, which doesn’t have a ban on gender-affirming care. A parent contesting custody of their child could take them on vacation to Disney World in Orlando, go to the nearby Orange County courthouse, and ask the judge to take emergency jurisdiction over the custody case because the other parent is planning to help the child get puberty blockers.
Those circumstances are horrific, Chriss said. It essentially makes Florida a “reverse safe haven” for some parents who object to gender-affirming care, but only under “a very specific, limited set of circumstances,” she said.
Her team intends to challenge the provision once they can find someone who has been affected by it.
What’s in the Texas bill
There are also provisions in the Texas bill that have sparked confusion and raised questions as to whether medical providers can temporarily continue treatments without fear of repercussions. Advocates have announced that they plan to challenge the bill once signed by the governor. It follows Abbott’s efforts last year to pursue child abuse investigations against parents who help their children get gender-affirming care.
“Coming on top of the effort last year to classify providing medically necessary and scientifically proven care to transgender youth as child abuse and threatening to tear Texas families with transgender children apart, an effort currently blocked in state court, Texas lawmakers have seen fit to double down,” the coalition of LGBTQ legal advocacy groups challenging the law said in a statement.
The exception for children already on hormonal treatments, which was added as an amendment, requires them to get off those treatments over the course of an unspecified period with the help of their doctor. Only those who started receiving those treatments before June 1 and also had at least 12 mental health counseling sessions or six months of psychotherapy are eligible to continue taking the treatments temporarily under that provision.
But the provision is based on the false notion that children can safely “wean” themselves off the treatments. “That is medical malpractice,” Minter said. “It’s like weaning a child who’s diabetic off insulin. There is no medical reason to discontinue the care, and doing so will be harmful to those kids.”
There’s also a question as to whether those children will even be able to access care. Many clinics in Texas that offered gender-affirming care have already closed or stopped offering those services on account of political pressure, including most recently a clinic at Austin’s Dell Children’s Medical Center. The hospital announced last week that all the physicians working in that clinic would be departing, and it’s unclear whether they were fired or left of their own accord.
“I don’t think there’s any mystery about why it’s happened,” Minter said. “The state of Texas has made it very clear that they are punishing doctors who try to continue to provide” gender-affirming care.
Another provision in the Texas bill that prohibits public money from being used to provide or facilitate the provision of gender-affirming care to a minor has raised alarm bells for Oakley. While other states with gender-affirming care bans have adopted similar provisions, the language of the Texas bill is much broader and could have more far-reaching consequences.
A “plausible reading” of the language suggests that any entity that does business with the state, even on just a one-time basis, could be held liable by Texas if they provide employee benefits that cover gender-affirming care for minors, Oakley said. “It’s possible that the state of Texas would have a claim against that company for providing those benefits to employees far outside the state of Texas,” she said.