Transgender advocates are beginning to fret — and plan litigation — as a new kind of anti-trans legislation has begun to advance in state legislatures aimed at criminalizing transition-related care for trans youth, including one measure that is halfway to becoming law in South Dakota.
Introduced in more than a dozen states at the start of the legislative session this year, the anti-trans legislation was a major point of discussion at a transgender rights panel Tuesday in D.C. hosted by the American Constitution Society.
Harper Jean Tobin, director of policy for the National Center for Transgender Equality said those bills — along with other measures seeking to inhibit participation of transgender kids in sports — represent anti-LGBTQ groups’ latest efforts to thwart LGBTQ rights after previous failures.
“Anti-LGBT groups realize that whatever they’re trying to scare people [with] lately is becoming less effective and so they find a new scary,” Tobin said. “After marriage equality became less effective as a thing to scare people about, I think it was trans people in general. That’s become a little bit less effective. It was bathrooms, and that’s become a little bit less effective, Now it’s, oh my gosh, trans young people in healthcare and trans people in sports.”
In South Dakota, the state House on Wednesday approved legislation known as House Bill 1057, which would criminalize providing transition-related care to youth, including puberty blockers and gender reassignment surgery, making them a Class 1 felony. The penalty would be a maximum of a year in prison and a fine of up to $2,000.
Since its introduction, the bill was amended to reduce its scope to youth under age 16 as opposed to all minors up to age 18, and the penalty was reduced from Class 4 felony to a Class 1 felony. The bill, nonetheless, still carries a maximum penalty of one year in prison and a maximum $2,000 fine. (Tobin referred to the changes to the bill as “small tweaks that are trying to make it seem less awful.”)
Tony Perkins, president of the Family Research Council, commended the South Dakota lawmakers for passing the legislation in an email blast this week to supporters.
“At one time, using cross-sex hormones or performing gender reassignment surgery on minors was rare,” Perkins said. “Now, however, these procedures are also being done at younger and younger ages, making bills like HB 1057 urgent. Cross-sex hormones are associated with a higher risk of heart attacks and blood clots, infertility, loss of bone density, and sexual dysfunction.”
The legislation, introduced by State Rep. Fred Deutsch, passed in the South Dakota house by a vote of 46-23 and now heads to the state Senate, which already has plans to advance the bill. A committee hearing could happen as soon as this week, according to the Washington Post.
Alexis Chavez, medical director for the Trevor Project, condemned the passage of the legislation in a statement shortly after its passage.
“This bill actively contradicts evidence-based medical recommendations and restricts parents’ ability to support their child with best-practice care, which has been shown to decrease suicide risk,” Chavez said. “Medical decisions should be made between doctors and their families — politicians have no role in this intensely personal process.”
South Dakota Gov. Kristi Noem, a Republican, hasn’t indicated whether she will sign or veto it. The Blade has placed a request in with her office seeking comment.
If the South Dakota bill becomes law, anti-trans groups would likely see it as a roadmap to proceed in other states. To head that off, a major transgender rights campaign would likely emerge to convince Noem to veto the bill should it reach her desk.
“There are signs the playbook for post-North Carolina HB 2 is somewhat applicable here in that the South Dakota State Medical Association and Chamber of Commerce have both come out against that legislation, as has the American Medical Association,” Tobin said.
According to a list compiled by Human Rights Watch, more than a dozen bills that would criminalize providing transition-related care to transgender youth are pending before state legislatures.
Bills in Colorado, Florida, Kentucky, Missouri, New Hampshire and South Dakota would criminalize the care, while legislation in Illinois, Missouri, Oklahoma and South Carolina would institute professional discipline, such as revocation of licenses. Lawmakers in Georgia, Texas and Utah have also signaled they’ll introduce similar legislation.
Because all these bills are similar, transgender advocates are looking to the usual suspects of anti-LGBTQ groups, such as the Heritage Foundation and Alliance Defending Freedom, as their source.
Tobin pointed out Deutsch introduced the legislation in South Dakota after flying to D.C. on the taxpayers’ dime for a Heritage Foundation event on “the sexualization of children.”
“They had a panel all about how we have to stop kids from being trans because that somehow is the sexualization of children,” Tobin said. “And this state legislator — apparently several others — came home with this great idea that had been pitched to them at this conference panel, which was let’s make it a crime to provide health care to trans kids.”
Conservative pundits and lawmakers are whipping up support for the legislation by drawing on the recent spike in youth identifying as transgender and stories of youth who underwent a gender transition process, but later expressed regret over the decision. Meanwhile, the Centers for Disease Control has revealed in a recent report puberty blockers can reduce suicide rates of transgender teens, who have high rates of suicidal ideation.
Sharita Gruberg, director of policy for LGBTQ research and communications at the Center for American Progress, said the lawmakers and anti-LGBTQ forces raising concerns are distorting the record.
“It’s always funny to me what the right thinks medical care looks like for trans people,” Gruberg said. “Like the idea that there are doctors who are prescribing surgical care for minors is a widespread thing is absurd, but I think that’s something that’s like latched on in the public imagination as like when we’re talking about what health care for trans youth looks like.”
Meanwhile in other states, including New Hampshire, Georgia, Indiana, Missouri, Tennessee and Washington State, legislation is pending that would restrict the ability of transgender kids to participate in school sports consistent with their gender identity.
Tobin said the sports bills have a unique way of eliciting sympathy because the public has assumptions of athletic performance based on sex, which is difficult to dissuade.
“People think that they understand the relationship between bodies and gender, and especially hormones,” Tobin said. “We talk about sex hormones, even though everyone’s body has testosterone, you can’t ovulate without testosterone, but we still call it a male sex hormone associated with maleness and more of it means you’re born male. We believe that it’s a primary factor in athletic performance across all the different sports that involve a huge variety of different physical skills, and the science doesn’t support that.”
Much of this anti-trans legislation seems based on a situation in Connecticut in which two transgender teens outperformed female athletes in a track event, which excluded the other racers from potential sports scholarships. Alliance Defending Freedom has spearheaded a complaint against the state athletic association in Connecticut, which the Department of Education has agreed to take up.
Gruberg pointed out the transgender athletes in Connecticut were black and girls behind the complaint are white, so race is in play.
“When we’re talking about integrating sports, these are similar arguments that have been made in the past,” Gruberg said. “I don’t want to erase the racial lens either that our opponents are using as they’re attacking trans people’s participation. There’s certain people — who counts as a woman, who is able to — has a lot of dimensions and they’re picking their spokespeople and the woman who placed eighth and could have placed sixth is also white.”
If all else fails and the bills become law, plans are already underway for litigation to enjoin the states from enforcing the anti-trans bills.
Chase Strangio, a transgender advocate and staff attorney for the American Civil Liberties Union, said litigation is being planned in South Dakota, which could be followed by other lawsuits.
“We are prepared to file suit in South Dakota should HB 1057 pass and get signed into law and will continue to assess litigation options in any state where a ban on gender affirming care is pending,” Strangio said. “These measures are a direct attack on the ability of transgender young people to survive and raise serious Equal Protection and Due Process concerns for young people and their parents. I have no doubt that any state that passes one of these laws will have to contend with significant litigation and legal liability on multiple fronts.”
But there’s no assurances the litigation would ultimately be successful in court, especially in the aftermath of President Trump remaking the judiciary with a record breaking number of Senate-confirmed conservative appointments.
At the ACS panel, the Blade asked whether there was any consideration to reaching out to lawmakers behind the bills to craft different legislation that would codify the process by which doctors prescribe transition-related care to youth, thereby allowing lawmakers to say they voted for a ban and trans advocates to say were able to codify the medical process.
Tobin, however, didn’t like that idea, pointing out states already have in place medical malpractice laws that cover a situation in which doctors violate best practices. Further, she said the proposal “is usually a non-starter” for sponsors of the bills pending before legislatures.
“That would be a bad idea, I think, the idea that you’re going to codify into law and especially with the criminal offense what the standard of care is rather than allow, as happens with the rest of the practice of medicine, the standards of care to evolve over time and be defined and updated by the different medical associations, and not have 57 jurisdictions have to update their codes every time clinical guidelines are updated and so forth,” Tobin said. “The Criminal Code is not a place where we should be defining the medical standard of care, we already have laws for that.”