After a string of legal losses in federal court, conservatives seeking to block access to gender-affirming care for minors are contemplating a new legislative push that would make such care prohibitively expensive for doctors to provide.
The plans, still under discussion among supporters of laws banning gender-affirming care, would likely mirror legislation approved in Arkansas this year, which Gov. Sarah Huckabee Sanders (R) signed into law in March.
That law makes it easier for patients to sue gender-affirming care providers. Minors who claim to have been injured by gender transition procedures — or a representative of the minor — could bring a lawsuit against the provider up to 15 years after they turn 18 years old.
Arkansas does not allow gender-transition surgeries on minors. A 2021 state law banning gender-affirming care of all types for minors was struck down last week by a federal judge.
Supporters say the new change will raise liability insurance rates for those who provide gender-affirming care, adding onerous costs that will effectively limit such care without passing an outright ban that could be challenged in court.
“I guess we’re going to go to the legal liability route,” said Terry Schilling, president of the conservative American Principles Project, one of the primary drivers of anti-gender-affirming care legislation. “That is the next step, is the legal liability, and ultimately I think that’s how this surgery industry gets destroyed, is by opening up liability laws.”
The shift in tactics comes after a wave of federal judges blocked outright bans on gender-affirming care. Four courts in recent weeks have banned laws set to take effect soon in Arkansas, Florida, Kentucky and Tennessee. Several other lawsuits challenging similar laws are pending, and a group of Georgia parents filed their own suit Thursday.
The judges who have struck down those laws — appointed by former Presidents Bill Clinton, Barack Obama and Donald Trump — have issued strikingly similar rulings. The gender-affirming care bans, they say, violate the Constitution’s Due Process Clause, the Equal Protection Clause and First Amendment.
Supporters of transgender rights say they are learning from their legal victories, and that each case has provided an updated template for litigation to come.
“As we continue to bring litigation, we’re constantly taking in and understanding how judges are viewing these issues,” said Sarah Warbelow, legal director at the Human Rights Campaign, a pro-LGBTQ rights group. “There is quite a bit of consistency in the way [gender-affirming care bans] have found to be unconstitutional.”
State legislative efforts to restrict transgender rights are nothing new; nearly a decade ago, North Carolina lawmakers set off a firestorm when they approved a bill barring transgender people from bathrooms that conformed to their gender identity.
But this year, that trend has become a tsunami, as lawmakers across the country race to block transgender people from bathrooms and changing facilities, bar transgender girls from school sports, and limit access to gender-affirming care. In the two years since Arkansas became the first state to ban gender-affirming care for minors, 18 other states have joined in.
“We’re not going away. The thing is, the American people are seeing this stuff and they’re really uncomfortable with it,” Schilling said. “The courts keep doing this, but it’s only going to make the issue worse.”