Criminalizing Gender Affirmative Care with Minors

As of November 2023, the Movement Advancement Projectopens in new window reported 21 states had enacted restrictions or bans on gender affirming health care for transgender minors, with five states making it a felony to provide such care. These measures often rely on arguments for delaying or discouraging social and/or medical transition that assume “reparative” or wait-and-see models of care would lead to greater well-being for all youth (Ashley, 2021). By June 2023, the Equality Federation reported 133 bills to restrict or ban gender affirming care had been introduced around the country, up from 43 pieces of such legislation in 2022. Many of these laws are being challenged in court.

Concerns about “desistance” or “detransitioning”—marked by transgender and gender-creative children growing up to be cisgender—often underpin arguments for criminalizing transition-related care for minors (Ashley, 2021). While supporters of these bills typically claim to want to protect children, scientific evidence suggests that the models of care these bills might allow could harm transgender children, and those who may be gender-creative as children who ultimately decide they are not transgender (Ashley, 2021). Research indicates that providing gender-creative children who eventually identify as cisgender the freedom to explore their gender—even with puberty blockers—helped them feel more confident in their ultimate decisions about their gender identity (Ashley, 2021).

In some states, these bills propose that medical providers be prohibited from or penalized for providing transition-related medical care to minors, including temporary puberty blockers or hormone therapy. In other states, additional requirements—including increased training for medical providers and consent from all parents/guardians (even if the minor has no contact with all parents/guardians)—would delay access to potentially life-saving care. Other bills also posit that school personnel be required to report suspicions of gender nonconformity to parents/guardians, potentially endangering the children.

• Gender identity refers to a person’s sense of gender (i.e., agender, bigender, man, Two Spirit, woman, etc.), which can be the same or different from person’s sex/gender assigned at birth (APA, 2015). Supportive evidence-based interventions—including but not limited to mental health counseling, social transition support, and hormone therapies—greatly improve mental health outcomes for transgender youth (APA 2015).

• Foregoing gender-affirming care can have tragic consequences. Transgender youth experience disproportionate levels of violence and bullying. Transgender youth are also more likely to feel less safe at school than cisgender youth, that is youth whose gender identity is consistent with their assigned sex at birth (Day et al., 2018).

• Access to gender-affirming care has a positive relationship with the mental health of transgender youth and lowers their risk of depression and suicide (Bauer et al., 2015; Green et al., in press). Transgender youth who have access to gender-affirming medical care experience improvements in mental health and often show mental health comparable to their cisgender peers (Toomey et al., 2022). Additionally, the distress experienced by youth who are provided treatments, but then decide to discontinue them and grow up to be cisgender, is significantly less than that which is experienced by transgender youth when such treatments are delayed (Ashley, 2021).

• Decisions about whether to seek gender-affirming care, and what specific services to utilize, must be made between a provider, patient, and the patient’s parents or guardians. Such decisions are relative to the youth’s individual clinical situation. Gender affirming care typically includes steps toward social transition, potentially treatments to temporarily postpone puberty, and in some instances, hormone replacement therapy (Coleman et al., 2012). Rather than allow flexibility to account for the varying needs of individuals, this bill adopts a “one size fits all” approach by categorically criminalizing the recommendation or provision of appropriate gender-affirming care.

• Concerns about “desistance” do not provide reasons against prepubertal social transition or peripubertal medical transition because “desistance” often occurs before evidence-based, cutting-edge transition interventions are available (Ashley, 2021).

• Exploration of identity is an organic, healthy part of development which, if delayed or discouraged, causes harm to all people—even people who transition during youth and eventually grow up to be cisgender (Ashley, 2021). 

• For these reasons and many others, we are asking you to oppose [bill number and name]. Feel free to contact us if you have any questions, and we look forward to working with your office on this.