By Keisha Dawson, JHBL Staff Member
The most recent victory for transgender rights was Williams v. Kincaid,[1] in which the Fourth U.S. Circuit Court of Appeals ruled that gender dysphoria is protected by the Americans with Disabilities Act (ADA).[2] Nevertheless, the fight to protect LGBTQ+ rights wages on, especially as the presence of legislative proposals infringing upon them is widespread and deep-rooted.[3] On August 1st, 2022, the Florida Agency for Health Care Administration (AHCA) finalized Rule 59G-1.050: Florida’s anti-transgender health care rule.[4] This rule, which went into effect on August 21st, denies necessary healthcare coverage for transgender Medicaid recipients.[5] This passage is not the first of anti-transgender or anti-LGBTQ+ legislation. And it will not be the last.[6]
In 1966, the Supreme Court of New York heard the first case considering a transgender issue,[7] and the Supreme Court of the United States heard the first case involving a transgender person in late 2019.[8] On June 15th, 2020, in the landmark case of Bostock v. Clayton Cty., the Supreme Court ruled 6-3, affirming that sex discrimination under Title VII of the Civil Rights Act of 1964 protects sexual orientation and gender identity.[9] Williams v. Kincaid, as mentioned above, followed Bostock in August 2022.[10] Nevertheless, a new lawsuit, Dekker et al. v. Florida Agency For Health Care Administration et al., has arisen in the U.S. District Court for the Northern District of Florida.[11] This case stems from recently-passed Rule 59G-1.050 that denies approximately nine-thousand transgender Medicaid recipients necessary, gender-affirming healthcare.[12]
The AHCA’s June Report,[13] presented with the slogan, “Let Kids Be Kids,”[14] deemed treatments for gender dysphoria both “experimental” and “investigational.”[15] The report also states that cross-sex hormones and surgery for treating and improving mental health in individuals with gender dysphoria do “not conclusively demonstrate that the benefits outweigh the risks involved.”[16] The report supported passing Rule 59G-1.050 and Ron DeSantis’s firm stance against gender-affirming care for minors.[17] This report received criticism from a group of experts stating, “its conclusions are incorrect and scientifically unfounded” and that the findings are “fundamentally unscientific.”[18] The critique says, “that it seems clear that the report is not a serious scientific analysis but, rather, a document crafted to serve a political agenda.”[19] It is important to note that these same treatments–“puberty blockers”— “have long been used to treat precocious puberty (the medical term for early puberty) in cisgender children—safely, and without any controversy.”[20]
In other words, the AHCA’s report is neither accurate nor is the reality it attempts to articulate. Instead, the reality is that in 2021, over 60% of transgender and nonbinary youth engaged in self-harm within the past twelve months; more than half of transgender and nonbinary youth have seriously considered suicide; and 21% of transgender and nonbinary youth have attempted suicide.[21] Thus, policies that endanger the rights of transgender individuals–and youth, in particular–and their access to healthcare do not align with any underlying political platform. Instead, they align with a desire to disregard an entire community of individuals, including children.
Florida has a troublesome “history of antigay policy and a political culture” that has attempted to disguise “forms of homophobia, transphobia, sexism and anti-Blackness,” as being pro-parent and pro-child.[22] Florida Governor Ron DeSantis has become known as “one of the most anti-LGBTQ+ politicians in America and an existential threat to every LGBTQ+ person in Florida.”[23] In March 2022, DeSantis signed the infamous “Don’t Say Gay” bill, restricting schools’ instruction regarding gender identity and sexual orientation.[24]
However, it is not just Florida with these troubling legislative tendencies. In March 2022, lawmakers had proposed 238 bills–a rate of at least three bills per day–that are considered anti-LGBTQ, half of those aimed directly at transgender individuals.[25] From 2018 to March 2022, “[n]early 670 anti-LGBTQ bills have been filed…with nearly all of the country’s 50 state legislatures all having weighed at least one bill.”[26]
So, what does the artillery of legislative weaponry unleashed by politicians insinuate for the future of transgender individuals regarding their access to necessary healthcare in the United States?
There have been steps forward in legislative protections for the transgender community. Some protections have prevented legislative weapons from being implemented in our society, even with the significant increase in conservative legislative proposals attacking this community.[27] However, the healthcare rights of transgender individuals remain vulnerable. As stated by Chase Strangio, deputy director for transgender justice at the ACLU, LGBT, & HIV Project: “it’s important for people to pause and think about what is happening … because what we’re seeing is that the state should have the authority to declare a population of people so undesirable that their medical care that they need to survive becomes a crime.”[28] In other words, the legislative attacks on transgender health care criminalize a federally recognized and protected disability with scientifically proven effective treatment. Furthermore, the veil to guise transphobia as a platform to protect children is not about protecting children whatsoever when the platform disregards the approximately 58,200 youth in the United States who will lose or never receive necessary gender-affirming care as a result of legislative attacks on transgender health care.[29] Likewise, the lack of consistency in banning hormonal treatments of children who are not transgender further proves the lack of regard for the lives of children.
For too long the healthcare rights of marginalized communities have been politicized and policed in the U.S. Ranging from legislative attacks on reproductive health care of individuals capable of pregnancy, to restricting access of transgender individuals to necessary, gender-affirming treatment. Is there hope? Of course. There have been landmark decisions in the country’s highest court and federal courts throughout, slowly paving the way for progress. Nevertheless, small steps forward followed by large jumps backward in legislation will soon cause whiplash in those seeking nothing more than equal access to protection by the law. No human should have to worry about their ability to seek treatment. No human should fear the criminalization of treatment they need. No child should live believing they have no option but to exist within a body that never feels like their own. The protection and furtherance of transgender health care rights are what it truly means to be ‘pro-child,’ ‘pro-parent,’ and simply, pro-democracy.
[1] Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).
[2] Denise Lavoie, Gender Dysphoria Covered by Disability Law, Court Rules, AP News (August 24, 2022), https://apnews.com/article/health-richmond-gender-identity-gay-rights-government-and-politics-24a5b820e2176054177428e5eee49b50
[3] Nick Norman, The Fight for Queer Rights Continues, The Seattle Times (June 3, 2022, 8:40 AM), https://www.seattletimes.com/opinion/the-fight-for-queer-rights-continues/
[4] Becky Sullivan, A New Lawsuit is Challenging Florida Medicaid’s Exclusion of Transgender Health Care, NPR (Sep. 7, 2022, 6:04 PM), https://www.npr.org/2022/09/07/1121559771/florida-transgender-health-care-medicaid-lawsuit.
[5] LGBTQ+ and Health Groups Sue to Block Florida’s Anti-Transgender Medicaid Health Care Rule, National Health Law Program (Sep. 7, 2022), https://healthlaw.org/news/lgbtq-and-health-groups-sue-to-block-floridas-anti-transgender-medicaid-health-care-rule/.
[6] Matt Lavietes & Elliott Ramos, Nearly 20 Anti-LGBTQ Bills Filed in 2022 so far, Most of Them Targeting Trans People, NBC News (March 20, 2022, 6:00 AM), https://www.nbcnews.com/nbc-out/out-politics-and-policy/nearly-240-anti-lgbtq-bills-filed-2022-far-targeting-trans-people-rcna20418.
[7] Anonymous v. Weiner, 270 N.Y.S.2d 319 (Sup. Ct. 1966).
[8] Curt Guyette, Inside the Supreme Court’s First Transgender Rights Case, ACLU Michigan (Dec. 9, 2019, 1:45 PM), https://www.aclumich.org/en/news/inside-supreme-courts-first-transgender-rights-case.
[9] Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020). See also Sharita Gruberg, Beyond Bostock: The Future of LGBTQ Civil Rights (Aug. 26, 2020).
[10] Williams, 45 F.4th at 759.
[11] Dekker, et al., v. Marstiller, et al., No. 4:22-cv-00325 (N.D. Fla. Filed Sept. 7, 2022).
[12] Sullivan, supra note 4.
[13] Florida Medicaid Generally Accepted Professional Medical Standards Determination on the Treatment of Gender Dysphoria, Agency for Healthcare Administration (June 2022).
[14] Let Kids be Kids, Agency for Health Care Administration, https://www.ahca.myflorida.com/letkidsbekids/ (last visited Sept. 26, 2022).
[15] Supra note 13 at 3.
[16] Id.
[17] Supra note 14.
[18] Meredith McNamara, et al., A Critical Review of the June 2022 Florida Medicaid Report on the Medical Treatment of Gender Dysphoria, at 2 (July 8, 2022) https://medicine.yale.edu/lgbtqi/research/gender-affirming-care/florida%20report%20final%20july%208%202022%20accessible_443048_284_55174_v3.pdf.
[19] Id.
[20] Hannah Smothers, Hm, No One Had a Problem with Puberty Blockers When Only Cis Kids Took Them, VICE (May 28, 2021, 9:44 AM).
[21] Trevor Project, National Survey on LGBTQ Youth Mental Health 2021, https://www.thetrevorproject.org/survey-2021/?section=Introduction.
[22] Julia Capó Jr. & Shevrin Jones, It’s Nothing New for Florida to Claim Anti-LGBTQ Measures will Protect Children, The Washington Post (March 28, 2022, 6:00 AM).
[23] HRC Staff, As Gov. DeSantis and Extremist Politicians in Florida Escalate Attacks on the Rights of Millions of Floridians, the Human Rights Campaign Endorses Rep. Charlie Crist for Governor of Florida and Scales Efforts to Mobilize Voters for 2022 Midterm Elections, Human Rights Campaign (Sept. 14, 2022) https://www.hrc.org/press-releases/as-gov-desantis-and-extremist-politicians-in-florida-escalate-attacks-on-the-rights-of-millions-of-floridians-the-human-rights-campaign-endorses-rep-charlie-crist-for-governor-of-florida-and-scales-efforts-to-mobilize-voters-for-2022-midter.
[24] Anthony Izaguirre, ‘Don’t Say Gay’ bill signed by Florida Gov. Ron DeSantis, AP News (March 28, 2022) https://apnews.com/article/florida-dont-say-gay-law-signed-56aee61f075a12663f25990c7b31624d.
[25] Supra note 6.
[26] Id.
[27] Id.
[28] Id.
[29] Heather Boerner, What the Science on Gender-Affirming Care for Transgender Kids Really Shows, Scientific American (May 12, 2022) https://www.scientificamerican.com/article/what-the-science-on-gender-affirming-care-for-transgender-kids-really-shows/.
Keisha is a second-year law student at Suffolk University Law School. She graduated from Rollins College in 2021 with her bachelor’s in political science and a minor in english. She is interested in working in transactional law. She interned with a sustainable finance firm, specializing in ESG data over the summer.