The U.S. Department of Health & Human Services (HHS) has issued guidance stating that it is illegal to deny minors gender affirming care when “medically appropriate and necessary,” and directing the HHS Office for Civil Rights to investigate violations of the applicable laws.
“Gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health. Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous.”
—HHS Guidance,
March 2, 2022
The HHS guidance (PDF), issued yesterday evening, comes just over a week after Texas Governor Greg Abbott (R) told the state’s Department of Family and Protective Services (DFPS) to investigate parents of transgender children who give them access to doctor-prescribed, gender-affirming medical care—which he called “child abuse.” Texas is only one of a number of states, however, with laws or bills restricting healthcare for transgender youth. Alabama is on the verge of passing legislation that would make it a felony to provide gender affirming care.
In response to all this, the HHS guidance says in part:
[HHS] stands with transgender and gender nonconforming youth and their families—and the significant majority of expert medical associations—in unequivocally stating that gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health. Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous. Such attempts block parents from making critical health care decisions for their children, create a chilling effect on health care providers who are necessary to provide care for these youth, and ultimately negatively impact the health and well-being of transgender and gender nonconforming youth.
The guidance explains that denying health care, including gender affirming care, because of someone’s gender identity, violates nondiscrimination laws and may also violate the Americans with Disabilities Act (ADA) (because gender dysphoria may, in some cases, qualify as a disability). Additionally, disclosing patient information related to gender affirming care violates patient privacy laws. It is also illegal to prevent doctors and health care providers from providing care because of a patient’s gender identity.
The HHS Office for Civil Rights (OCR) will continue working to enforce applicable laws, the guidance notes, adding that, “Parents or caregivers who believe their child has been denied health care, including gender affirming care, on the basis of that child’s gender identity” and “health care providers who believe that they are or have been unlawfully restricted from providing health care to a patient on the basis of that patient’s gender identity” may file a complaint with OCR.
HHS Secretary Xavier Becerra also issued a statement yesterday in support of transgender and other LGBTQI+ youth. He noted that in addition to the guidance above, HHS is issuing an Information Memorandum to state child welfare agencies (that is, agencies in charge of foster care and public adoption) “that makes clear that states should use their child welfare systems to advance safety and support for LGBTQI+ youth, which importantly can include access to gender affirming care.”
“Affirming a transgender child’s identity is one of the best things a parent, teacher, or doctor can do to help keep children from harm, and parents who love and affirm their children should be applauded and supported, not threatened, investigated, or stigmatized.”
—President Joe Biden
The HHS actions come the day after President Joe Biden said in his State of the Union address, “The onslaught of state laws targeting transgender Americans and their families is simply wrong. As I said last year, especially to our younger transgender Americans, I will always have your back as your President, so you can be yourself and reach your God-given potential.” The president also issued a statement Tuesday calling Abbott’s actions “government overreach at its worst,” and noting that “These actions are terrifying many families in Texas and beyond. And they must stop.” He added:
Transgender children bring fulfillment to their parents, joy to their friends, and are made in the image of God. Affirming a transgender child’s identity is one of the best things a parent, teacher, or doctor can do to help keep children from harm, and parents who love and affirm their children should be applauded and supported, not threatened, investigated, or stigmatized.
In related news, the ACLU reports that in response to a lawsuit they filed on behalf of a Texas family with a transgender child, the Travis County District Court has temporarily blocked the Texas DFPS from investigating the family. The mother works for DFPS and the family “has already had an investigator arrive at their house in response to Abbott’s directive.”
Progress? Yes. But still a long way to go in this fight.