Idaho ban on gender-affirming treatment for trans kids blocked
Alanna Mayham
(CN) — A federal judge in Idaho temporarily blocked the state from enforcing a ban against treating transgender children for gender dysphoria on Tuesday after finding that the new law likely violates the U.S. Constitution.
The 53-page order from Senior U.S. District Judge B. Lynn Winmill grants a preliminary injunction to two unnamed transgender children and their parents while denying a motion to dismiss from Idaho Attorney General Raúl Labrador and Ada County Prosecuting Attorney Jan M. Bennetts.
The underlying case, filed in April 2023, challenges the constitutionality of House Bill 71 — Idaho’s Vulnerable Child Protection Act — passed in early 2023 to prohibit doctors from providing medication or surgical treatment to treat gender dysphoria in children under 18.
By criminalizing gender-affirming care —threatening up to 10 years in prison for doctors who violate the law — the plaintiffs claim HB 71 violates the equal protection clause by discriminating against transgender minors because of their sex and transgender status. It also violates state and federal due process clauses, the plaintiff parents say, by denying their right to receive medical advice about their children while codifying law without notification of its unconstitutional underpinnings.
“Where the adolescent patient, their parents, and their doctor all agree that gender-affirming medical care is medically necessary, the law strips families of the ability to access such care,” the parents say in the complaint. “Simply put, the law preempts Idaho parents’ (and doctors’) judgment about what is best for their own children.”
When signing the bill into law on Apr. 4, Idaho Governor Brad Little penned a letter recognizing how “our society plays a role in protecting minors from surgeries or treatments that can irreversibly damage their healthy bodies.”
“However, as policymakers we should take great caution whenever we consider allowing the government to interfere with loving parents and their decisions about what is best for their children,” Little added.
The same observation led Winmill to temporarily block the law Wednesday, finding “transgender children should receive equal treatment under the law” and “parents should have the right to make the most fundamental decisions about how to care for their children.”
“Time and again, these cases illustrate that the 14th Amendment’s primary role is to protect disfavored minorities and preserve our fundamental rights from legislative overreach,” Winmill wrote in the order following a Nov. 6 hearing for the state’s motion to dismiss.
“That was true for newly freed slaves following the Civil War. It was true in the 20th century for women, people of color, inter-racial couples, and individuals seeking access to contraception. And it is no less true for transgender children and their parents in the 21st century,” Winmill added.
While Winmill agreed with critics that 14th Amendment arguments to strike legislative enactments are “anti-democratic and frustrate the will of the people,” he also said it’s “precisely how our constitutional democracy is supposed to work.”
Had HB 71 gone into effect on Jan. 1, it would have prevented the case’s minor plaintiffs from continuing their treatments for gender dysphoria, a condition that the American Psychiatric Association defines as a “marked incongruence between one’s experienced/expressed gender and their assigned gender” lasting longer than six months.
Recommended support for gender dysphoria includes social affirmation through the use of preferred pronouns and legal affirmation via name changes and gender markers. Medical affirmation is also recommended post-puberty — or anyone past the age immediately before they reach puberty — via hormone treatments and surgery, though surgery is not often recommended for anyone under 18.
Family and societal rejection of gender identity are vital predictors of mental health difficulties for transgender individuals, according to the American Psychiatric Association, particularly since this population already experiences higher rates of victimization, hate crimes and suicide than the general public.
With these points in mind, Windmill rejected the state’s arguments that the law doesn’t discriminate against transgender individuals and merely regulates treatment for gender dysphoria. The argument, he wrote, is like “saying that classifying on the basis of gray hair doesn’t classify on the basis of age, or that classifying on the basis of wearing a yarmulke doesn’t classify on the basis of being Jewish.”
“In other words, accepting that line of logic, HB 71 discriminates by proxy, as only transgender people seek treatment for gender dysphoria,” Winmill wrote.
The law also discriminated on the basis of sex, Winmill found, as it relies on the discrimination of transgender status, prohibits transgender minors from treating their gender nonconformity and allows their sex at birth to determine whether they can receive certain types of medical care under the law.
Winmill added that even if the state’s interests in protecting “vulnerable children from the dangers of unproven medical and surgical treatments” are genuine, the evidence shows that withholding gender-affirming medical care is harmful — undermining the asserted goal of protecting children.
Labrador vowed to appeal the order Wednesday, contending that it allows Idaho to continue “mutilating procedures that have been largely rejected, even in in many European countries.”
“The federal judiciary once endorsed the eugenics movement and forced sterilization of intellectually disabled people,” Labrador said in a statement. “Similarly, Judge Winmill’s ruling places children at risk of irreversible harm. History will not look kindly at this decision.”
Bennetts did not immediately respond to a request for comment.
Attorneys for the plaintiffs also responded to the order Wednesday, championing the injunction as a win for Idaho’s transgender youth and their parents.
“This judicial decision is a much-needed ray of hope for trans people amid a years-long onslaught against their rights to access health care and ability to navigate the world around them,” said Leo Morales, executive director for the American Civil Liberties Union of Idaho, in a statement.
In addition to the ACLU and its Idaho division, plaintiff representation includes Wrest Collective of Boise, Idaho, and attorneys from the New York City offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP and Groombridge, Wu, Baughman & Stone LLP.