Joette Katz Authors Law.com Article Entitled "Idaho Perpetuates a Living Nightmare for People Who Need Gender-Affirming Care"

A 2023 Idaho law, HB 71, Idaho Vulnerable Child Protection Act, criminalizing gender-affirming medical care for transgender youth, was recently challenged in federal court by two transgender adolescents and their families. See Labrador v. Poe, F Supp. 3d (2023). The law makes it a felony punishable for up to 10 years for doctors to provide surgeries, puberty-blockers and hormones to transgender people under the age of 18.

The plaintiffs claimed, inter alia, that the law was unconstitutional because it discriminates based on sex and transgender status. According to the pleadings, the gender-affirming care the adolescent plaintiffs were receiving has improved their mental health and enabled them to become “thriving teenagers.” Widely accepted to treat gender dysphoria, helping alleviate the distress of gender dysphoria and significantly improving patients’ mental health and well-being, this medical care is supported the American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics, and countless others.

Faced with the challenge, the district court held “that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.” The court continued that the law interfered with parents’ due process right to direct the medical care of their children and usurped the constitutional right of parents to make important healthcare choices on their behalf. The court decision reflected bedrock “concepts of the family as a unit with broad parental authority over minor children,” “our constitutional system long ago rejected any notion that a child is ‘the mere creature of the State.’” Parham v. J.R., 442 U.S. 584, 602 (1979) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925)).

Building on years of well-established jurisprudence “that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children” (Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) (collecting “this extensive precedent”), the District Court acknowledged that this core right encompasses the right “to recognize symptoms of illness and to seek and follow medical advice.” Parham, 442 U.S. at 602. By enacting H.B. 71, the state claimed the power to make that decision instead of the child’s parents. Accordingly, the district court blocked the law in its entirety.

Crucially, the district court found that the medical treatments at issue were not too risky, unsafe or experimental as a general matter. On the contrary, the court found that left untreated or inadequately treated, gender dysphoria can cause depression, anxiety, self-harm and suicidality. The state had claimed that a stay was necessary to protect Idaho youth from what it calls dangerous and unproven treatments that youth are likely to come to regret. But that claim was based on assertions about gender-affirming medical care that had been soundly rejected as a factual matter by the district court as contrary to the evidence.

Indeed, the voluminous scientific evidence introduced showed that gender-affirming medical care is safe, effective, and “can be a crucial part of treatment for adolescents with gender dysphoria, and necessary to preserve their health;” and is “accepted by every major medical organization in the United States.” Furthermore, the district court specifically found that although “the state is arguing that the minor plaintiffs and others who receive gender-affirming medical care will be harmed if the law does not take effect. . . . the evidence shows the opposite.”

The state then appealed, but the U.S. Court of Appeals for the 9th Circuit refused to stay the lower court’s opinion. Idaho then asked the United States Supreme Court to limit the injunction to just the named plaintiffs, thereby letting the ban take effect against all other trans youth in Idaho. After the Ninth Circuit’s denial, the Idaho Attorney General’s Office sent an emergency motion to the U.S. Supreme Court, challenging the scope of the lower court decision and arguing that the district court had only the authority to address the law as it pertained to the named plaintiffs, and not to prevent its enforcement statewide.

The Supreme Court decision agreed with the state’s request to enforce its ban on transgender health care for minors, except for the plaintiffs. While emergency docket decisions generally do not include reasoning, this decision included concurrences by Justices Neil Gorsuch, Samuel Alito, Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett and focused on the propriety of universal injunctive relief, “a question of great significance that has needed the court’s attention for some time.”

The court ruled that enjoining the Idaho ban was an overstep of the lower court’s authority. The court’s three remaining justices, Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan, voted to deny the request to enforce the ban, deciding that the law should remain entirely blocked, that it was the natural order of a case and that it move through the lower courts appropriately.

While read narrowly, the six justices who voted to allow Idaho to proceed with enforcing the law did not address its constitutionality although there were signs from some in the majority suggesting support for the ban. The opinions focused on the wisdom of individual judges issuing sweeping decisions that go beyond the individual litigants involved in the case before them. But while testing the legitimacy of universal injunctions addressed on the emergency docket as in this case might not be ideal, the majority’s decision is devastating for transgender youth and their families.

The district court had determined that the law needed to be paused to prevent a flood of lawsuits from every person wanting to continue treatment and to allow the plaintiffs to actually receive the requested medical care. Lawyers for the plaintiffs also had argued that doctors and pharmacists would be reluctant to risk up to 10 years in prison to provide treatment to anyone, not just the plaintiffs, unless the law were placed on hold.

The Supreme Court ruling will test that theory, and not just in Idaho. Many other states have recently adopted similar bans, some of which make it a crime to provide such care or consider the facilitation of such care to be child abuse. At least 23 states have enacted laws restricting or banning gender-affirming medical care for transgender minors, and most of those states face lawsuits. The states that have enacted laws restricting or banning gender-affirming medical care for transgender minors include Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, and West Virginia.

As one of the amici briefs submitted by medical ethicists noted: “these bans outlaw the normal course of medical decision-making for these individuals, under which a patient, their parents, and their medical providers carefully deliberate to make an informed, individualized decision about whether gender-affirming care is medically appropriate and in the best interest of the particular patient. The state imposed this sweeping ban even though every major medical organization in the United States has concluded that gender-affirming care, including for minors, is not only safe and effective, but is the only evidence-based treatment for gender dysphoria. Categorically barring patients from accessing evidence-based treatment is irreconcilable with foundational precepts of biomedical ethics, particularly where, as here, that treatment is the only evidence-based treatment available for a given medical need and the prohibition applies only to a group of patients singled out because of their identity. . . .It forces providers to deny their patients care that is known to alleviate suffering, and thus to abandon their patients to serious physical and mental harm (beneficence).”

So, while the constitutionality of the ban works its way through the system, the countless number of families of youth who will go untreated because they do not have the resources to travel outside the bans will simply have to watch their children’s mental health and well-being deteriorate as much needed medical care is withdrawn or withheld.

Not only will youth who have not yet begun treatment be placed on hold, but for adolescents who are currently receiving gender affirming care, if treatment is discontinued, they may suffer increased depression, anxiety, self-harm, suicidality and social isolation; moreover, stopping treatment can cause their bodies to undergo permanent changes that would be difficult or impossible to subsequently change, putting them at risk of increased gender dysphoria for the rest of their lives. This harm to these youth, treated and awaiting treatment, could be immediate and severe while they wait for this case to proceed through its course.

The irreparable harm associated with injunctive relief clearly seems to be running in the direction of supporting, not lifting it.

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/04/22/idaho-perpetuates-a-living-nightmare-for-people-who-need-gender-affirming-care/], reprinted by permission.