What the heck is happening on the legal landscape for trans youth bans?
It’s really confusing! The first cases contesting state bans on trans youth care are reaching the Supreme Court. Several others are being litigated. When the 2024 legislative sessions start up in January, we expect to see more bills attempting to restrict care.
First, What Is The Legal Status Of Care In The States Where QueerDoc Practices?
As of early November, 2023:
California and Washington are shield states: they have laws that protect patient rights to obtain care and provider rights to provide care.
Hawaii does not have a shield law. Their Stonewall Caucus is planning to present one. They are unlikely to pass any proposed bans.
Wyoming attempted to pass a ban law in 2023, but that law failed. Alaska has neither a shield law nor a ban.
Montana passed a youth care ban. It was set to go into effect on October 1, 2023, but an injunction was placed in late September. Youth in Montana can currently receive care, legally.
Idaho passed a youth care ban in 2023, HB 71, which would have gone into effect on January 1, 2024. A preliminary injunction was issued on 12/27/23. Breaking news 4/15/24: Erin Reed has reported that the Supreme Court has granted the stay on the injunction to Idaho’s adolescent care ban. Our understanding is that this case goes back to the Ninth Circuit Court and the ban goes into effect. Families in Idaho, please feel free to contact us.
Utah passed a youth care ban, and it is in effect. We expect a lawsuit to happen, but the law has not yet been formally challenged. Youth in Utah can currently receive care, but it would be participating in civil disobedience. Traveling for care can also be an option: families can find support from us, STEYP, and Elevated Access.
Florida passed SB 254, which placed restrictions on both youth and adult care after the Florida Boards of Medicine and Osteopathic Medicine created rules restricting youth care. The original lawsuit challenged the youth care bans and a preliminary injunction was granted, allowing youth in the court case to continue care. The lawsuit then expanded to include adult plaintiffs after SB 254 was passed. An injunction on adult care was not granted, and restrictions on how care may be provided to both youth and adults remain. This court case goes to trial in mid-December. Youth and adults in Florida can currently receive care, but it would be participating in civil disobedience. Traveling for care can also be an option: families can find support from us, STEYP, and Elevated Access.
Want more information? Our appointment process is described here and you can book a free introductory appointment here. You do not need to be in one of our practice states to book an introductory appointment.
A quick break for a lesson on the Federal Court System and that legal landscape
The lawsuits in Idaho and Florida are filed in Federal District Courts. They are federal courts because the plaintiffs are arguing that federal constitutional rights are being violated. The Montana lawsuit is filed in Montana State District Court, as the argument is that the law violates the state constitution. There are also lawsuits filed in several other states where youth care bans were enacted. Most of those are also in Federal District Court.
There are 94 Federal District Courts. These courts are trial courts and have at least one judge. Each state, Washington, D. C., Puerto Rico, and the territories of the Virgin Islands, Guam, and the Northern Mariana Islands has at least one District Court, and states with larger populations have multiple districts.
District Courts are trial courts. When a case is decided in Federal District Court, they may be appealed to the Federal Circuit Courts. There are thirteen Circuit Courts. Each Circuit Court hears appeals for cases within their jurisdiction, which is usually several states or territories. Bold states are QueerDoc states.
First Circuit:
- Maine
- Massachusetts
- New Hampshire
- Puerto Rico
- Rhode Island
Second Circuit
- Connecticut
- New York
- Vermont
Third Circuit
- Delaware
- New Jersey
- Pennsylvania
- The Virgin Islands
Fourth Circuit
- Maryland
- North Carolina
- South Carolina
- Virginia
- West Virginia
Fifth Circuit
- Louisiana
- Mississippi
- Texas
Sixth Circuit
- Kentucky
- Michigan
- Ohio
- Tennessee
Seventh Circuit
- Illinois
- Indiana
- Wisconsin
Eighth Circuit
- Arkansas
- Iowa
- Minnesota
- Missouri
- Nebraska
- North Dakota
- South Dakota
Ninth Circuit:
- Alaska
- Arizona
- California
- Guam
- Hawaii
- Idaho
- Montana
- Nevada
- Northern Mariana Islands
- Oregon
- Washington
Tenth Circuit:
- Colorado
- Kansas
- New Mexico
- Oklahoma
- Utah
- Wyoming
Eleventh Circuit:
- Alabama
- Florida
- Georgia
District of Columbia Circuit:
- Washington, D. C.
Federal Circuit:
- Court of Appeals for Veterans
- Court of Federal Claims
- Court of International Trade
United States courts of appeals. (2023, November 3). In Wikipedia. https://en.wikipedia.org/wiki/United_States_courts_of_appeals
Decisions made at the Circuit Court level apply to all of the states/territories in that Circuit. Some ways in which Circuit Courts take up cases are:
- A District Court case is appealed
- Multiple District Courts within one Circuit rule on similar cases and the rulings do not match
Circuit Court cases are appealed to the Supreme Court. In the same way that multiple district court rulings may go to their respective circuit courts if they differ, if multiple circuit courts disagree on the same law topic, those cases go to the Supreme Court to be worked out. However, the Supreme Court decides which cases it hears, and it may decide to let conflicting laws stand while other lawsuits progress.
This week, requests from two cases in two states (Tennessee and Kentucky) in the Sixth Circuit went to the Supreme Court asking them to review the cases.
At the same time, there are cases pending or in process in other Circuit Courts:
- Preliminary injunction request to Alabama’s ban in the Eleventh Circuit
- Arkansas in the Eighth Circuit (the state is appealing the struck-down ban)
- Indiana in the Seventh Circuit (the state is appealing an injunction)
- Oklahoma in the Tenth Circuit (the plaintiffs are appealing the denial of an injunction)
There are already conflicting decisions in multiple states about the constitutionality of youth care bans. It’s possible that the Supreme Court will hear a case on youth bans this court term. That would mean that we might have a ruling by June 2024 that would declare bans on gender affirming care unconstitutional or not.
Even if the Supreme Court decides not to take up Tennessee’s or Kentucky’s ban suits in the Sixth Circuit, it is likely that the court will eventually have to take up the question of whether or not restricting gender affirming care is unconstitutional, simply because there are cases in multiple circuits. (We’re not lawyers, but we think that answer is pretty obvious: bans are unconstitutional!)
To recap:
- An injunction blocking Idaho’s ban was ordered on 12/27/23, before it HB 71 went into effect in January, 2024. Idaho is in the Ninth Circuit.
- We may have a ruling in Florida in early 2024. Florida is in the Eleventh Circuit.
- There may or may not be a lawsuit filed challenging the youth ban in Utah. If you live in Utah and would be willing to learn more about participating in a lawsuit please contact NCLR.
- It is certain that youth care bans will eventually reach the Supreme Court. We don’t know when that will be.
- The Biden Administration has urged the Supreme Court to hear these cases and declare bans unconstitutional.
We are providing care to patients who live in all of the states where we are licensed. We will not participate in unconstitutional laws that violate basic human rights. We are connected to organizations who can help with travel for patients who need to travel to a safe state to obtain care; however, traveling is not required. For more information on our process, please see Getting Care At QueerDoc: Appointments.
For in-depth discussions of what’s going on in the legal landscape from a lawyer who covers LGBTQ+ topics and the Supreme Court, check out Chris Geidner’s Law Dork. Chris is amazing at what he does. Recent Law Dork articles:
- Trans care bans reach Supreme Court as Tennessee families ask court to take case.
- LGBTQ cases are coming to the Supreme Court. A Law Dork guide on what to watch.
- Chase Strangio on asking SCOTUS to review Tennessee’s trans care ban, a Law Dork Q&A.
- Biden administration urges SCOTUS to hear trans care cases, strike down bans.
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