Fourth Circuit Rejects West Virginia Law Barring Transgender Girls From Student Athletics

WASHINGTON — The U.S. House of Representatives today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and scoring the vote. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “It is shameful that a traditionally bipartisan, non-controversial bill would be turned into a targeted weapon against transgender youth and their parents in uniform,” said Mike Zamore, National Director of Policy & Government Affairs at the ACLU. “In the interests of scoring political points, this measure strips hundreds of young people of the health care they need, putting Members of Congress in between servicemembers, their children, and their doctors.. We strongly urge members of the Senate to pass a clean version of the NDAA and likewise urge President Biden to uphold his longstanding legacy of support for the LGBTQ community and the principle of keeping politics out of health care by vetoing it should it reach his desk.” If passed by the Democratic-controlled Senate and signed into law by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress since the passage of “Don’t Ask, Don’t Tell” and the so-called “Defense of Marriage Act” in the 1990s. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty-suppressants or gender-affirming hormones. That amounts to one tenth of one percent (or 0.1%) of the 918,000 youth aged 6 to 18 years who have at least one parent on active-duty or ready reserve military status. TRICARE has covered gender-affirming treatments for transgender youth since 2016. Last week, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution.

Earlier today, the Montana Supreme Court ruled that SB 99, a 2023 Montana law that categorically bans life-saving gender-affirming care for transgender youth, is unconstitutional under the Montana state constitution’s privacy clause, which prohibits government intrusion on private medical decisions. This ruling will allow Montana communities and families to continue accessing medical treatments for transgender minors with gender dysphoria. “I will never understand why my representatives are working to strip me of my rights and the rights of other transgender kids,” said Phoebe Cross, a 17-year-old transgender boy. “Just living as a trans teenager is difficult enough, the last thing me and my peers need is to have our rights taken away.” “Fortunately, the Montana Supreme Court understands the danger of the state interfering with critical healthcare,” said Lambda Legal Counsel Kell Olson. “Because Montana’s constitutional protections are even stronger than their federal counterparts, transgender youth in Montana can sleep easier tonight knowing that they can continue to thrive for now, without this looming threat hanging over their heads.” “We are so thankful for this opportunity to protect trans youth, their families, and their medical providers from this baseless and dangerous law,” said Malita Picasso, Staff Attorney for the ACLU’s LGBTQ & HIV Project. “Every day that transgender Montanans are able to access this care is a critical and life-saving victory. We will never stop fighting until every transgender person has the care and support they need to thrive.” “Today’s ruling permits our clients to breathe a sigh of relief,” said Akilah Deernose, Executive Director of the ACLU of Montana. “But the fight for trans rights is far from over. We will continue to push for the right of all Montanans, including those who are transgender, to be themselves and live their lives free of intrusive government interference.” The Court found that the Plaintiffs were likely to succeed on the merits of their privacy claim, holding: “The Legislature did not make gender-affirming care unlawful. Nor did it make the treatments unlawful for all minors. Instead, it restricted a broad swath of medical treatments only when sought for a particular purpose. The record indicates that Provider Plaintiffs, or other medical professionals providing gender-affirming care, are recognized as competent in the medical community to provide that care.[T]he law puts governmental regulation in the mix of an individual’s fundamental right ‘to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider.’ Two justices filed a concurrence arguing that the Court should also clarify that discrimination on the basis of transgender status is a form of sex discrimination prohibited by Montana’s Equal Protection Clause. Plaintiffs in the case include Molly and Paul Cross and their 17-year-old transgender son Phoebe; Jane and John Doe joining on behalf of their 16-year-old transgender daughter; and two providers of gender-affirming care who bring claims on their own behalf and on behalf of their Montana patients. On December 4, the Supreme Court of the United States heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. Today’s decision by the Montana Supreme Court rests entirely on State Constitutional grounds, insulating transgender adolescents, their families, and health care providers from any potential negative outcome at the U.S. Supreme Court. Today’s decision from the Supreme Court of Montana can be found here.  

WASHINGTON — Active-duty military personnel with transgender youth enrolled in TRICARE could be denied access to gender-affirming medical care if a proposal in the National Defense Authorization Act (NDAA) is allowed to become law. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “This is a dangerous affront to the dignity and well-being of young people whose parents have dedicated their lives to this country’s armed forces,” said Mike Zamore, national director of policy and government affairs. “Medical care should stay between families and their doctors but this provision would baselessly and recklessly inject politics into the health care military families receive. Nobody should have to choose between serving the country and ensuring their child has the health care they need to live and thrive. Members of Congress must vote against the defense bill because of the inclusion of this deeply harmful, unconstitutional provision.” If passed by Congress and signed into law by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress since the passage of “Don’t Ask, Don’t Tell” and the so-called “Defense of Marriage Act” in the 1990s. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty-suppressants or gender-affirming hormones. That amounts to one tenth of one percent (or 0.1%) of the 918,000 youth aged 6 to 18 years who have at least one parent on active-duty or ready reserve military status. TRICARE has covered gender-affirming treatments for transgender youth since 2016. Last week, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution.