Biden DOJ Warns Red States Not to Restrict Transgender Surgeries for Kids

Matt PalumboApril 2, 2022

The Biden administration’s Justice Department warned states across the country on Thursday that any legislative attempt to limit access to sex-change therapies or operations for children could violate federal law.

The letter to state attorneys general from Kristen Clarke, the assistant attorney general for civil rights, states that any effort to restrict procedures available to “transgender youth” amounts to “unlawful discrimination based on their gender identity, including when seeking gender-affirming care.”

Governors in several states have signed laws or issued executive orders meant to protect children from sex-change operations, hormone-blockers, and other medical interventions that switch their biological sex. An Arkansas law forbids physicians from prescribing puberty-blockers to children. And Texas governor Greg Abbott (R.) issued an executive order providing that parents attempting to change their child’s gender should be referred for a child abuse inquiry.

Clarke’s letter suggests that any state action that limits the availability of so-called gender-affirming care violates the Constitution and federal laws like the Affordable Care Act, which contains medical non-discrimination provisions. And it indicates, but does not explicitly warn, that the Justice Department will take action against states pursuing policies like those in Arkansas and Texas. The letter could be a precursor to a lawsuit.

“The department and the federal government more generally have a strong interest in protecting the constitutional rights of individuals who are lesbian, gay, bisexual, transgender, queer, intersex, nonbinary, or otherwise gender-nonconforming,” the letter reads.

Thursday’s memo relies in part on a 2020 Supreme Court decision, Bostock v. Clayton County, in which a six-justice majority led by Justice Neil Gorsuch held that a federal employment non-discrimination law bans workplace bias against LGBT workers. The Free Beacon reported in July 2020 that the decision could reach beyond the employment context, and put the force of federal law behind transgender participation in women’s sports and pro-LGBT bathroom access policies, among other issues.

Clarke’s letter also cites a 2021 memo from Pamela Karlan—a Stanford law professor briefly made famous for invoking Barron Trump during the first impeachment of the former president—applying the Bostock ruling to schools. The Free Beacon reported in July 2021 that the memo would serve as the linchpin for a regulatory regime imposing gender ideology through federal policy.

Apart from Thursday’s memo, the department has also filed court papers backing legal attacks on state laws that keep biological men from competing in women’s sports. And the federal Bureau of Prisons, a Justice Department agency, recently revised its operating procedures to grant criminals access to sex-change operations or related therapeutics.

The letter is part of a broader Biden administration push on the “Transgender Day of Visibility,” during which the administration made several announcements aimed at the transgender community, such as that U.S. passports will now include a nonbinary gender option. President Joe Biden in a Thursday speech urged “parents of transgender children” to affirm their child’s chosen gender.

“To parents of transgender children, affirming your child’s identity is one of the most powerful things you can do to keep them safe and healthy,” Biden said in taped remarks, adding that the administration will stand against “hateful” legislation on transgender issues.

“This administration is standing up for you against all these hateful bills,” Biden said. “We’re committed to advancing transgender equality in the classroom, on the playing field, at work, in our military, and our housing and health care systems.”