More than once, most recently in Tuesday night’s State of the Union address, President Joe Biden has told trans youth he has their backs. While welcoming his words, some activists have wondered—beyond rhetoric—what that commitment amounted to.
On Wednesday, the Biden administration announced that the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) will now use the weight of the law against attempts to restrict trans teens’ access to gender-affirming health care, as well as countering the threats to the health care professionals who provide it.
In doing so, the White House has signaled it is ready to fight in the courts not just Texas, mentioned specifically in the newly published legal guidance, but also the multiple Republican legislatures seeking to outlaw such health care, criminalizing both parents and health care providers.
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The moves followed Texas Gov. Greg Abbott’s widely publicized directive that parents and health care providers be investigated over possible “child abuse” if they offer trans teens’ gender-affirming health care—even though gender-affirming care in Texas is not against the law.
The state’s Department of Family and Protective Services (DFPS) investigation of one family—two others are known to be being investigated—was blocked by a Texas district judge Wednesday, who said they would consider next week whether to make an order to cease such “investigations” statewide.
Biden condemned Abbott’s actions, saying, “This is government overreach at its worst. Like so many anti-transgender attacks proliferating in states across the country, the governor’s actions callously threaten to harm children and their families just to score political points. These actions are terrifying many families in Texas and beyond. And they must stop.”
The legal guidance being announced Wednesday, said Biden, “put the state of Texas on notice that their discriminatory actions put children’s lives at risk.”
HHS Secretary Xavier Becerra said the Biden administration was ready to “take immediate action if needed” over what had unfolded in Texas. “I know that many youth and their supportive families are feeling scared and isolated because of these attacks. HHS is closely monitoring the situation in Texas, and will use every tool at our disposal to keep Texans safe.
“Any individual or family in Texas who is being targeted by a child welfare investigation because of this discriminatory gubernatorial order is encouraged to contact our Office for Civil Rights to report their experience.”
In a further statement, HHS outlined specifics routes of legal redress for trans teens and their families. “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, may file a complaint with OCR. 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.”
The OCR was “investigating and, where appropriate, enforcing Section 1557 of the Affordable Care Act cases involving discrimination on the basis of sexual orientation and gender identity in accordance with all applicable law.” People should file a complaint, HHS said, if they believe they have been discriminated against in a health program or activity that receives financial assistance from HHS.
Biden added that “rather than weaponizing child protective services against loving families, child welfare agencies should instead expand access to gender-affirming care for transgender children. Respected medical organizations have said that access to gender-affirming care for transgender children can benefit mental health, lower suicide rates, and improve other health outcomes. Children, their parents, and their doctors should have the freedom to make the medical decisions that are best for each young person—without politicians getting the way.”
Biden underlined his commitment to LGBTQ equality in his Tuesday address to a joint session of Congress. He asked that the Equality Act, which would enshrine LGBTQ equality protections federally, “finally… get to my desk.” (It has passed in the House, but not yet the Senate.)
Biden added, “The onslaught of state laws targeting transgender Americans and their families is 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.”
HHS’ strongly worded Wednesday night statement makes clear that Republican legislatures seeking to stop trans teens from accessing health care are running afoul of the law. Arkansas became the first state to enact such a law last April—now the subject of multiple legal challenges.
Section 1557, the statement clarified, “protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.”
HHS also moved to reassure and empower anxious health care providers, who are also being targeted by Republican legislators insistent that they not only cease providing health care but also inform on young patients and their families seeking it.
“HIPAA, the cornerstone patient privacy law, limits the circumstances under which health care providers and other entities may disclose protected health information, such as gender affirming physical or mental health care administered by a licensed provider,” the statement reads. “Providers who may be concerned about their obligations to disclose information concerning gender affirming care should seek additional legal guidance regarding their legal responsibilities and other laws.”
The statement made clear that HHS stood “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 are 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.”
