DOJ letter on transgender health care could throw Texas into legal hot water

AUSTIN (KXAN) — If Texas lawmakers eventually pass a bill officially banning transgender health care options for young people in next year’s legislative session, the state could find itself in the water. heated with the US Department of Justice (DOJ).

Kristen Clarke, the assistant attorney general in the DOJ’s civil rights division, sent a letter to state attorneys general on Thursday, which argued that policies blocking gender-affirming care for children violated the Constitution. The letter coincided with Transgender Awareness Day as well as the announcement of new federal actions to make things like travel and government documentation more inclusive for transgender Americans.

“The United States Department of Justice (the Department) is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal law,” Clarke’s letter began. “This includes ensuring that these young people are not subject to unlawful discrimination based on their gender identity, including when seeking gender-affirming care.”

She further wrote that any laws enacted by a state “that prevent parents or guardians from following the advice of a medical professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may violate rights protected by both equal protection and due process”. Fourteenth Amendment Clauses. She also suggested that such laws could jeopardize federal funding due to non-discrimination requirements.

Elizabeth Sepper, a professor at the University of Texas at Austin Law School, said the letter should serve as a wake-up call to state leaders as well as health care providers.

“The letter details the ways in which restricting health care on the basis of gender identity violates the Constitution in the form of equal due process protection as well as the right of parents to raise their children as they hear it and control their medical care,” Sepper mentioned. “I think the real warning, however, comes in the second part of the letter where the Department of Justice points out the variety of federal funding streams that require non-discrimination on the part of the state as well as any entity receiving those federal dollars in education and health. care, foster care and beyond. This is really, I think, a warning about what will happen to what Texas relies on to fund most of the services it provides in the state.

Texas lawmakers may have failed to do what Arkansas lawmakers did last year when they made Arkansas the first to ban gender-confirming treatments and surgery for transgender youth. They enacted the ban even after objections from the Republican Governor.

However, Texas succeeded in passing a law banning transgender female students from playing on women’s sports teams. Governor Greg Abbott also recently ordered the Texas Department of Family and Protective Services to initiate child abuse investigations among parents who seek gender-affirming care for their transgender children.

Sepper said the DOJ’s letter could essentially serve as a “roadmap for litigants” who may challenge the governor’s directive.

“The Department of Justice has drafted an outline of a complaint for the people and provided some examples of behavior that would violate federal laws,” she said. “For example, we know that there have been quite a number of disputes in health care where transgender people are denied, for example, treatment for gender dysphoria, and the courts have found that violates federal protections against sex discrimination in health care.”

A temporary injunction put in place by a Travis County district judge halted Abbott’s directive, preventing the state from moving forward with investigating more families with trans children for child abuse. However, Attorney General Ken Paxton announced that he had asked the state Supreme Court to step in and let those investigations continue.

With the state injunction still in place, however, Sepper said she expects the DOJ won’t pursue federal lawsuits against Texas at this time, but may provide support. in other future legal challenges.

“We are already seeing various private hospitals, which are themselves recipients of federal funding, saying they will refuse health care,” Sepper said. “It seems, okay, there could be a plausible case based on sex discrimination that these hospitals are now engaging in sex discrimination because they are concerned about the order that compels them to engage in a mandatory declaration.

KXAN reached out to Paxton’s office on Friday afternoon to comment on the DOJ letter and will update this story if a response is shared.

Since President Biden took office, the DOJ has filed a number of lawsuits against Texas, including over its latest redistricting maps and abortion restrictions.

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