The Biden Administration and Congress Must Protect Transgender KidsChild Rights Education
In his first address to a joint session of Congress, President Biden addressed transgender youth directly: “I want you to know your president has your back.”
His acknowledgment is timely. Just five months into the year, 2021 has seen a staggering volume of legislation introduced — more than 100 bills in 33 states — that targets trans children and their caretakers by criminalizing standard medical care, restricting access to school sports, and more:
- At least 24 bills would prohibit or restrict medical professionals from prescribing gender-affirming care to minors — at least one bill would make it a felony offense, and North Carolina and Oklahoma define “minor” as anyone under 21;
- At least 56 bills introduced in state legislatures would bar trans youth from playing on the sports teams that match their gender identity;
- At least four bills would require government agents, including school employees like teachers, to notify parents immediately if they believe their child may be transgender or gender non-conforming (NC SB 514; SC HB 4047; AL SB 10/HB 303; IA HF 193).
Other implications of state bills include, but are not limited to:
- Making it a form of child abuse for parents to consent to gender-affirming care for their child, punishable by loss of custody and up to 10 years in prison (TX SB 1646);
- Enforcing athletics restrictions via invasive exams to “verify the student’s biological sex” (FL HB 1475);
- Barring insurers from covering gender-affirming care for anyone under 18 (AR HB 1570);
- Allowing doctors to refuse care to LGBTQ patients based on religious beliefs (AR SB 289).
Why the targeted cruelty toward transgender youth? This recent state legislative trend may reflect political backlash to the second attempted passage of the Equality Act in Congress, which would amend the 1964 Civil Rights Act to include gender identity and sexual orientation as protected characteristics, or to the anti-discrimination protections for LGBTQ workers provided by the 2020 Bostick v. Clayton County decision.
But the number of anti-trans bills, and the moral panic their sponsors stoke, has been growing since at least 2015. These bills assert disproven ideas that children and adolescents lack the capacity to understand their own identities, or that affirming adults are facilitating harm. Since Anita Bryant’s “Save Our Children” crusade against anti-discrimination laws in the 1970s, unsubstantiated concerns about children’s safety have been a favored pretense for anti-LGBTQ measures.
In reality, the anti-trans legislation being debated and signed into law across the country right now will inflict real, immediate harm on transgender, non-binary, and gender non-conforming children.
A recent study concluded that trans children who have earlier access to gender-affirming medical care are less likely to suffer from mental health conditions. Trans and gender non-conforming youth already face higher rates of depression, anxiety, and suicidal ideation, so restricting access to known effective interventions poses grave risks.
One study of 10 states’ proposed restrictions projected that more than 45,000 children could lose medical care. The American Academy of Pediatrics, American Psychiatric Association, Association of American Medical Colleges, and American Medical Association have vocally opposed bans on gender-affirming medical care and access to school sports.
Bills banning transgender students from secondary and post-secondary sports teams that match their gender identity would effectively bar them from athletics altogether, and counter the more inclusive precedents set by the International Olympic Committee and the NCAA.
What can be done at the federal level?
The Biden Administration and Congress need to take swift and decisive action to strengthen federal protections so that kids’ rights aren’t subject to the whims of their state legislatures.
President Biden has taken an important step by signing an Executive Order affirming that transgender and gender non-conforming students are protected from discrimination under Title IX. We propose two next steps for Congress and the Biden Administration:
1.Pass the Equality Act
The Equality Act passed the House for the second time in February. The bill first passed the House in 2019, but then-Majority Leader Mitch McConnell declined to allow a hearing or floor vote in the Senate. Its fate in the Senate remains uncertain and it is a likely candidate for filibuster.
2.Make protecting LGBTQ youth a top priority for the Department of Justice
Many of the state bills targeting trans youth are likely unconstitutional. President Biden’s Department of Justice should follow the example of Former U.S. Attorney General Loretta Lynch, who publicly denounced North Carolina’s Public Facilities Privacy & Security Act — better known as HB2 or the “bathroom bill” — as “state-sanctioned discrimination.” The DOJ filed a federal civil rights lawsuit against the state of North Carolina in 2016.
The DOJ under Attorney General Merrick Garland should treat attacks on trans kids’ rights with even greater urgency and file lawsuits or issue statements of interest wherever possible.
The bottom line
Restricting children’s and adolescents’ access to medical care, school sports, and privacy is dehumanizing and unscientific. The state bills discussed here would unequivocally harm kids and families; LGBTQ youth deserve support and appropriate care. President Biden has signaled his support. Passing the Equality Act in the Senate and preparing the DOJ to champion legal challenges are critical next steps.