In his recent visit to the United States, the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity Victor Madrigal-Borloz expressed alarm at the “veritable plague” of anti-transgender bills, the “trend to weaponize state agencies,” and a litigation strategy against federal nondiscrimination protections. He pointed to state bills drafted and pushed by “various stakeholders” that aim to restrict health access to healthcare for trans people and specifically trans youth as being “in blatant violation of their right to the enjoyment of the highest attainable standard of physical and mental health.”

“In the context of this concerted attack,” Madrigal-Borloz wrote in his report, “I was shocked to discover, from many persons with whom I had conversations, that supportive families have decided to leave the states in which they resided with their trans and gender-diverse children because they fear persecution or have made plans or contemplated making plans to escape in case that persecutory measures were to be adopted.”

Since Madrigal-Borloz’s visit in late August, attacks on transgender, non-binary, two-spirit, and other gender-diverse people have only escalated.

Children’s hospitals have received bomb threats simply because they care for transgender youth, forcing them to take down websites and hide provider information. Transgender people — in particular, trans women of color — have faced record and escalating levels of deadly violence, which has doubled in the last four years. And 80% of transgender young respondents to a national survey reported enduring bullying and harassment that causes them depression, stress, or anxiety that interferes with their learning last school year, leading them to top all youth in suicidality.

Some lawmakers have used stoking fear and hatred against gender-affirming care and the transgender community as a “wedge issue,” using misinformation as justification to drum up support and enact laws that further marginalize an already marginalized group.

Michigan opponents to an abortion ballot measure, for example, have misleadingly advertised that the measure, which does not mention affirming care, would allow for “minors as young as 10 or 11 to receive this prescription [for hormone blockers] without the consent of their parents or their parents even knowing.” The state is considering legislation introduced on October 11th that would imprison parents and doctors up to life for providing gender-affirming care to youth.

All of this exists despite wide consensus among doctors that gender-affirming care is life-saving treatment that is often not received by those that need it, and laws denying that treatment will lead to children’s deaths. Peer reviewed studies in The Lancet and American Academy of Pediatrics show that a full 98%, or 49/50 transgender people retain their identity. A 2021 meta-analysis pooling 27 studies totaling 7928 transgender patients found the satisfaction rate even higher – 99% – and reported that most of the patients who regretted transitioning felt that way because of the transphobia and rejection they faced. ​​Gender-affirming care, including surgery, has much higher satisfaction rates than most other types of medical care, leading to increased quality of life and decreased negative mental health outcomes for both transgender youth and adults. A 2022 study published in the Journal of the American Medical Association (JAMA) reported that receipt of gender-affirming care, including puberty blockers and gender-affirming hormones, was associated with 60% lower odds of moderate or severe depression and 73% lower odds of suicidality over the following 12 months.

Gender-affirming care is backed by a solid base of evidence and supported by every major U.S medical and mental health organization, including the American Medical Association, American Academy Pediatrics, Federation of Pediatric Organizations, American College of Obstetricians and Gynecologists, and American Psychological Association.

But the waves of state-level attacks have left transgender people and their supportive families unsure where to go or what to do. As Lawyers for Good Government’s research has found, transgender people in America are political refugees in their own land.

Transgender, nonbinary, two-spirit and other gender-diverse people are protected from discrimination “on the basis of sex” under the United States Constitution. On June 15, 2020, the Supreme Court held in Bostock v. Clayton County that sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) encompasses discrimination on the basis of both sexual orientation and transgender status.

In light of the Bostock decision, on January 20, 2021, President Biden signed Executive Order 13988, which affirmed that federal antidiscrimination laws prohibiting sex discrimination necessarily “prohibit discrimination on the basis of gender identity… so long as the laws do not contain sufficient indications to the contrary.” That order directed federal agencies to review all “existing orders, regulations, guidance documents, policies, programs, or other agency actions” that implement anti-discrimination provisions on the basis of sex and extend those protections to gender identity.

In compliance with Executive Order 13988, the Department of Health and Human Services issued a notification in May of 2021 affirming that it would “interpret and enforce Section 1557’s prohibition on the basis of sex to include… discrimination on the basis of gender identity.” In March of 2022, HHS’ OCR released further notice that Section 1557 prohibits discrimination based on gender identity, including restrictions to gender-affirming care. In October, the agency closed its comment period for a revised Section 1557 rule, which would render these protections more explicit and expand them to health insurers. However, dark money groups such as Alliance Defending Freedom are funding suits across the country, claiming 1557's gender-based protections only apply to cis women -- and, on November 11, one district court in Texas took the bait.

This federal rulemaking is in recognition that the simple fact of being transgender can lead to health challenges that go beyond gender-affirming care. In 2021 alone, 37% of transgender people avoided needed medical care and 41% preventative screenings care because of previously experienced discrimination.

Transgender people of color in the United States face multiple forms of interpersonal discrimination—both independently and simultaneously—in health care settings, including cissexism, racism, weight-based discrimination, and ableism. The compounding of bias based on categories of difference (e.g., gender, race, social class, ability) leads to a systemic “othering” of transgender people of color that results in significant health disparities. Health discrimination is even worse for transgender people of color, who face higher discrimination rates than both white transgender people and their cisgender peers of color. While one-third of respondents to the National Center for Transgender Equality’s 2015 United States Transgender Survey (USTS) who had seen a provider in the past year reported having at least one negative experience with a doctor or other health care provider related to being transgender, that rate increased to 50% for American Indian respondents, 40% among Middle Eastern respondents and 38% among multiracial respondents.

As reported in the USTS, this further leads to shocking differences in access to basic necessities such as income, employment, housing and basic healthcare. While respondents in the USTS sample overall were more than twice as likely as the U.S. population to be living in poverty, people of color, including Latino/a/é (43%), American Indian (41%), multiracial (40%), and Black (38%) respondents, were more than three times as likely as the U.S. population (12%) to be living in poverty. The unemployment rate among transgender people of color (20%) was four times higher than the U.S. unemployment rate (5%). Black transgender and gender non-conforming people often live in extreme poverty, with 34% reporting a household income of less than $10,000/year, in comparison with eight times the general U.S. population rate at 4%.

The Biden-Harris administration has offered robust additional support for the Supreme Court’s Bostock analysis across its agencies. On March 26, 2021, the the U.S. Department of Justice (“DOJ”) Principal Deputy Assistant Attorney General for the Civil Rights Division issued a memorandum to federal civil rights offices and general counsels addressing the application of Bostock to Title IX, determining that Title IX’s prohibition on discrimination “on the basis of sex” includes discrimination on the basis of gender identity and sexual orientation.

As the DOJ explains in its Title IX Legal Manual, Bostock’s holding further extends to guiding Title IX interpretation, an analysis agreed to by a number of federal circuit courts.

On June 22, 2021, the U.S. Department of Education issued a notice of interpretation clarifying that “[c]onsistent with the Supreme Court’s ruling and analysis in Bostock, the Department [of Education] interprets Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.” While one district court has held that this analysis improperly hinders state law, on June 23, 2022, the 50th anniversary of the passage of Title IX, the Department of Education began the process to make these protections explicit. The new Regulations are not effective for the current 2022–2023 academic year but will likely be modified and codified before next academic year. If codified into federal law, the proposed Title IX Regulations would protect the rights of transgender youth in schools, including access to bathrooms and other school facilities consistent with an individual’s gender identity.

The reasoning in these interpretations applies with equal force to discrimination against intersex people, who are also harmed by these laws. “Intersex” refers to people born with variations in physical sex characteristics—including genitals, gonads, chromosomes, and hormonal factors—that do not fit typical, binary definitions of male or female bodies. The Bostock Court addressed discrimination against “persons with one sex identified at birth and another today.” Discrimination against intersex individuals is similarly motivated by perceived differences between an individual’s specific sex characteristics and their sex category (either as identified at birth or some subsequent time). In other words, it is impossible to discuss intersex status without also referring to sex. Discrimination based on intersex traits may also involve sex stereotypes, as intersex people by definition have traits that do not conform to binary stereotypes about male or female bodies.

In 2021, legislators proposed roughly 150 bills that would restrict the rights of transgender people and other LGBTQ+ identities in direct violation of the Bostock reasoning. Though the majority of the bills introduced in 2022 failed, states saw over 300 anti-LGBTQ bills proposed last session. The vast majority of these targeted the basic rights of transgender youth, such as access to healthcare, public accommodations, and education. A full 21 from the spring session – two of which are still active – deemed supportive parenting and affirming care “child abuse” and sought to deny young people basic, best-practice medical care for gender incongruence, removing them from their families who support them.

In July, Alabama Governor Kay Ivy signed into law a bill banning gender-affirming care for young people. The law mandates that no person shall be allowed to provide, prescribe, or refer treatments to patients under 19 for any transition-related care, including puberty blockers, surgeries, and hormone replacement therapy – while specifically allowing for "corrective" procedures for intersex traits. Violations are considered Class C felonies, and the law requires any public or private school employee to inform the legal guardians of a minor if that minor’s gender identity does not match their sex assigned at birth. It also mandates that school employees are not allowed to encourage any minor to keep their gender identity private rather than telling their legal guardians. If any given section of this bill is found to be illegal, the rest of the bill remains in effect.

Michigan’s bill introduced on October 12 states that anyone who “knowingly or intentionally consents to, obtains, or assists with a gender transition procedure for a child” is guilty of child abuse in the first degree. Parents, guardians, medical professionals, or anyone who cares for or has custody over a child can be charged with child abuse for helping a child access gender-affirming health care such as puberty blockers, surgeries, or hormone replacement therapy. Like the nearly-identical bans filed across the country, this bill also specifically allows for "corrective" procedures for intersex traits, laying plain its discriminatory nature: gender-affirming care is illegal, unless it reinforces the male/female binary. Charges of child abuse in the first degree are considered felonies and are punishable by imprisonment any term of years, including life in prison.

Arizona’s bill, which has been on hold since January 27, re-defines child abuse and vulnerable adult abuse to include transition-related healthcare treatments. Vulnerable adults are defined as people over the age of 18 who are unable to protect themselves from abuse, neglect, or exploitation due to a mental or physical impairment. The bill states that any person who provides puberty blockers, surgeries, or hormone replacement therapy to minors or to vulnerable adults is guilty of a felony, while, again, explicitly allowing for "corrective" procedures for intersex traits.

Some states saw attacks to their existing nondiscrimination protections, or significant turnarounds from hard-won affirming laws and policies. Lawmakers in New Hampshire, for example, nearly succeeded in overturning the state’s ban on conversion therapy, which survived in a vote of 175-167.

This fall has seen a number of states attempt to push through anti-trans bills in the lame duck session and pre-file bills for the 2023 session. Depending on the stance of the state’s legislative majority and incoming governor, these bills range widely in likelihood of passage.

Oklahoma just introduced a bill for the 2023-24 legislative session that seeks to criminalize all transgender healthcare for trans youth and adults up to the age of 21. Health care professionals found in violation of the law would face a felony charge with a fine of up to $100,000, a 10-year sentence, or both, as well as license revocation by their relevant licensing board. Additionally, the bill provides grounds for anyone to file civil action against someone supporting a trans person receiving gender-affirming healthcare, stating that civil liability and criminal charges may be initiated until the "victim" turns 45. HB1011 also prohibits public funds from going toward any organization providing affirming surgical procedures to someone under 21, which is notably irrelevant, as Oklahoma does not have any health care providers that perform said surgeries. The bill's sponsor recently also pre-filed a bill that would lower the age for concealed carry from 21 to 18, trusting young adults with a gun but not bodily autonomy. The legislative session begins Feb. 6, 2023.

Texas legislators pre-filed a slew of bills targeting transgender people in the House and Senate this November. In the Senate, SB162 was pre-filed on November 14, 2022, mandating the “biological sex” be filled out on a child’s birth certificate and banning birth certificate updates to match a person’s gender identity. On the same day, in the House, sponsors pre-filed ten bills: HB41 and HB122, prohibiting medical professionals from providing gender-affirming care for trans youth and rescinding professional insurance liability coverage for medical professionals; HB42, defining medical professionals administering gender-affirming care as child abuse; HB672 and HB436, defining consenting to gender-affirming care as child abuse; HB23, expanding Texas’ existing sports ban to include all athletics, not just interscholastic athletics; HB643 and HB708, prohibiting all transgender people from going any performance as drag; and HB361, a Don’t Say Gay or Trans bill.

In November, Illinois saw a pair of conflicting bills filed, one that would protect trans youth and their families, SB4245, and one that would specifically ban transgender girls from participating in school sports, while allowing transgender boys to participate, SB4213. The latter bill would also define biological sex for students on birth certificates as unchangeable.

In Kentucky, two bills, Draft Request 103 and 384, are in the early stages of drafting. Draft Request 103 may make it illegal for transgender people to change their birth certificates and would prohibit “X” gender markers. Draft Request 384 requires students born male to only use facilities designated to be used by males and students born female to use only facilities designated to be used by females. It requires schools to provide the best available accommodation to students who assert their gender is different from their biological sex and identify consequences for using facilities designated for the opposite biological sex.

In Montana, two bills, LC0828 and LC1471, are in the early stages of drafting, with LC0828 banning gender-affirming care for trans youth and LC1471 banning minors attending drag shows.

That same day, members of the Virginia House pre-filed HB1387, a bill that would ban students from playing on sports teams that align with their gender identity.

Ohio sponsors of a trans health ban tried to push the bill through during November’s lame duck session. However, after hearing testimony from Ohioans including Jeopardy! Champion Amy Schneider on November 16, 2022, the State House of Representatives shelved HB454 until January 2023. This bill would ban gender-affirming care to individuals under 18 years of age and force school teachers and staff to “out” children to their parents, independent of the child’s wishes. The House previously passed HB151, which would require schools, state institutions of higher education, and private colleges to designate separate, binary sports teams based on assigned sex, but the Senate has not considered it and Gov. Mike DeWine has questioned the need for such a ban, saying it should be handled by leagues and athletic associations.

Where anti-trans groups have failed to make traction using the legislative process, they have turned to undemocratic methods. Texas and Florida have unlawfully repurposed state child protective services and medical licensure boards to attempt to strip the right to bodily autonomy from their transgender residents. These actions are just as cruel and arbitrary as bills attempting to deny transgender people their rights, but outside of the democratic or legal process, without the ability of citizens’ elected representatives to vote to these attacks on the right of transgender Americans to exist.

On Friday, November 4, in a meeting at a Holiday Inn at Disney Springs in Lake Buena Vista, the Florida Board of Medicine voted to ban affirming health care for youth, despite unanimous guidance from the world’s leading medical organizations that such care is medically necessary. State medical boards are appointed bodies that regulate the practice of medicine in a state, such as how telemedicine is offered or how opioids are prescribed. The bodies oversee the issuance and revocation of medical licenses. Gov. Ron DeSantis’ Department of Health had urged the Board to create the rule in August, the same month the Florida Agency for Health Care Administration prohibited its state Medicaid from covering gender-affirming care. According to an analysis by the Tampa Bay Times, despite self-identifying as “apolitical,” the board’s members have donated over $80,000 to Governor DeSantis’ campaigns for state office and his political committee.

The rule goes into effect after a comment period, during which stakeholders may submit perspectives beyond what was delivered before the November meeting. One person that submitted comment immediately after the rule's passage is Florida Agriculture Minister Nikki Fried, who said:

"Today, Florida families are less free and less safe thanks to Florida’s Board of Medicine and Governor DeSantis. Today’s ruling from the Florida Board of Medicine isn’t about patients, it’s not about science, and it is not about health care. It is about a discriminatory and callous attack on transgender youth – children – and those who love them, care for them, and stand with them. This isn’t medicine. This is a cynical political tactic in Ron DeSantis’ never-ending desire to attain more power by vilifying someone else."

She concluded: "In the end this thoughtless, careless, awful decision will be proven to be on the wrong side of history."

Earlier this year, the Florida Department of Health published a thoroughly-debunked document that advised against giving transgender young people any gender affirming care, including even “social transition,” which is simply acknowledging a child is the gender the child says they are. A ban on social transition is effectively state-legislating certain behaviors as “normal” based on gender, and creating state-enforced gender roles. This sort of policing of gendered behavior has harmful impacts not only on transgender and nonbinary people, but cisgender and gender non-conforming people, as well.

Back in February, Texas Governor Greg Abbott directed its Department of Family Protective Services (DFPS) to investigate caregivers who authorized gender-affirming care for their children. Governor Abbott’s directive was based not on affirmative legislation or existing statutory law, but rather an opinion Texas Attorney General Ken Paxton issued four days previously.

At the moment, measures in Alabama, Arkansas and Texas are currently blocked in court, which could leave Florida the first to ban healthcare for transgender youth –notably, without legislative support.

The Biden Administration and numerous congresspeople have committed to enshrining transgender, non-binary, two-spirit and gender-nonconforming rights into law through measures like the Equality Act and Transgender Bill of Rights. However, these efforts have struggled to achieve the bipartisan support necessary to push them through.

At the state level, however, some legislatures are also passing laws friendly to transgender Americans. It is time for every state to follow suit.

For example, California has gone on the offensive with a new law offering refuge to trans youth and their families fleeing persecution, Senate Bill 107 (Chapter 810, Statutes of 2022), which will go into effect January 1, 2023. Massachusetts, Connecticut and Washington, D.C. have modeled and passed “trans refuge” laws offering similar protections to their residents. Signed into law on November 21, 2022, DC 24-646 prevents the district’s government from participating in interstate investigations and proceedings interfering with the right to bodily autonomy.

California’s groundbreaking law protects trans children and their families in three main ways:

It prohibits enforcement of other states’ law that would authorize a state agency to remove a child from their parent or guardian based on their allowing their child to receive gender-affirming health care, and prevents California’s law enforcement from cooperating with anyone challenging the provision of lawful gender-affirming health care performed in the state, which prevents families that come to California from having their trans children taken away from them.

It bars the sharing of health, medical and related information across state lines for the purposes of criminal prosecution or child removal under a law prohibiting the provision of gender-affirming health care, protecting transgender people and their families from legislation that proposes to extend the reach of criminal prohibitions on gender-affirming care to other states.

It prohibits law enforcement from participating in the arrest or extradition of someone allowing, receiving or providing gender-affirming health care where that conduct is lawful in California and to the fullest extent permitted by federal law, declaring the state’s public policy that any out-of-state criminal arrest warrant based on receipt of gender-affirming care is the lowest priority for law enforcement.

Lawmakers in Illinois, Minnesota and New York have already filed similar bills, and LGBTQ+ lawmakers in sixteen other states have pledged to put forth similar legislation when next in session, including Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maine, Michigan, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington and West Virginia.

Joining Minnesota’s trans refuge bill filed in April, SB4245 was introduced in the Illinois Senate on November 22, 2022, creating the Gender-Affirming Health Care Protection Act and amending the Uniform Criminal Extradition Act. With Govs. J.B. Pritzker and Tim Waltz both winning their bids for re-election, this bodes well for these midwestern states offering refuge to residents fleeing their neighboring states, soon.

Other state laws already offer vital protections to transgender people and their families. For example, California, Delaware, Hawaii, Illinois, Maine, New Hampshire, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia and Washington, D.C. have enshrined protections for transgender health insurance access in the state code, prohibiting discrimination based on actual or perceived gender identity. Since Gov. David Ige signed House Bill 2405 into law on June 17, the Hawaii health insurance code protects transgender Hawaiians from discrimination by health insurers "on the basis of actual gender identity or perceived gender identity," and prohibits “categorical cosmetic or blanket exclusions to gender-affirming treatments or procedures.”

Further, Colorado, Connecticut, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, Pennsylvania, Rhode Island and Wisconsin have issued insurance bulletins clarifying that their laws protect transgender rights to nondiscrimination in insurance.

Equitable access to safe, affirming and scientifically-validated medical care is a backbone to a just, democratic society. No court or legislature should step in between a patient and their doctor. Not for reproductive healthcare. Not for transgender healthcare. Not for any healthcare.

Transgender people living in America are entitled to live their lives free from government discrimination and harassment, including that of state governments. But as Madrigal-Borloz wrote in his report:

“I am deeply alarmed by a widespread, profoundly negative riptide created by deliberate actions to roll back the human rights of LGBT people at [the] state level [including] … limiting comprehensive sexual and gender education for all, and access to gender-affirming treatment, sports, and single-sex facilities for trans and gender diverse persons. The evidence shows that, without exception, these actions rely on prejudiced and stigmatizing views of LGBT persons, in particular transgender children and youth, and seek to leverage their lives as props for political profit.”

Denying medically necessary healthcare is more than an inconvenience for transgender people, especially transgender children. It is government-sanctioned child abuse. It has permanent irreversible effects on children’s lives and well-being. As one activist put it, “fighting anti-trans legislation is suicide prevention”. The Trevor Project, a nonprofit suicide hotline for LGBTQ youth, reported a 150% rise in young people seeking support after state-level anti-transgender bills were introduced. These laws could even meet the definition of genocide under Article II (c) of the Convention on the Prevention and Punishment of the Crime of Genocide, ratified and incorporated into federal law at 18 USC 1091 (a)(4), by subjecting transgender children to “conditions of life that are intended to cause the physical destruction of the group in whole or in part.”

It is time for every state to step up and take action to protect trans youth.

Khadijah M. Silver is Senior Staff Attorney - Civil Rights at Lawyers for Good Government and a longtime advocate for transgender rights, most recently at Transgender Legal Defense and Education Fund (TLDEF).

Mika Fernandez is a civil rights attorney, Vice President of Policy and Strategic Engagement at Lawyers for Good Government (L4GG), and a board member of the Trans Formations Project (TFP).

Alex Petrovnia is the Founder and President of the Trans Formations Project, a volunteer-run 501(c)(4) nonprofit dedicated to tracking and educating about the anti-trans legislative crisis in the United States.

Thank you to Trans Formations Project Vice-President Sami Mendum-Purdy and every member of the Trans Formations Project for their tracking of these bills during the 2022 legislative session, which assisted us greatly in the drafting of this report. Thank you to Devon Ojeda from National Center for Transgender Equality for incredible feedback throughout the research and drafting process. And finally, thank you to each of the pro bono attorneys and law firms who contributed to legal research used in this report.