CRAIG KONNOTH
In recent years, every state in the South has passed laws prohibiting minors from accessing gender-affirming care. Virginia became the last bastion for providing this care -- which complies with best practices endorsed by the American Medical Association, the American Association of Pediatrics, the American Psychiatric Association, and many others.
In recent days, however, this care has come under threat. On Jan. 30, Attorney General Jason Miyares issued a letter stating that state medical entities "must stop" pediatric gender-affirming care "immediately" or face "significant legal risk and ... financial exposure." Virginia Commonwealth University stopped providing gender-affirming care that same day, the University of Virginia (UVA) followed suit a day later. While UVA resumed providing care last week, the Board of Visitors meets Friday to determine future steps.
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The advice in the attorney general's letter, however, is incorrect. The law in Virginia is exactly the inverse of what the letter suggests. Both federal and state law require hospitals to provide gender-affirming care to transgender minors, according to best practices; failing to do so is what would open them to liability.
The letter was issued in light of an executive order issued by President Donald Trump on Jan. 28 entitled, "Protecting Children from Chemical and Surgical Mutilation." This letter was one among many anti-LGBT actions taken by the new administration. The order instructs federal agencies to penalize medical institutions that provide gender-affirming care to transgender people under the age of 19. Such threats mainly comprise the withholding of Medicare and Medicaid funds, as well as funding medical research and education.
In the wake of the order, numerous institutions around the country suspended various forms of gender-affirming care. After two federal courts temporarily barred the order from going into effect last week, some institutions reinstated care -- including UVA (but not VCU).
The attorney general's letter incorrectly presents the executive order as an immediate threat to the operation of hospitals. The executive order on its own terms is not targeted at health care entities, but rather tells government agencies to take action. Further, last week, two courts temporarily barred the order from going into effect at all. Even if the order were to be reinstated, legal agency actions take time. For example, regulations affecting how Medicare and Medicaid funds get spent take months, if not years, to formulate.
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In other words, there are no existing regulations with which hospitals should comply.
More to the point -- and what the attorney general's letter omits to explain -- is that it violates federal and, likely, state law for institutions to comply with the order. Last year, the Fourth Circuit Court of Appeals (which covers Virginia, West Virginia, Maryland and the Carolinas) held that the anti-discrimination provisions of the Affordable Care Act prohibit banning gender-affirming care for transgender minors.
Relying on a previous Supreme Court case, the court explained that prohibiting such care discriminates based on sex. Cisgender children (whose sex is the same as their sex assigned at birth) seek gender-affirming care often in higher numbers than transgender children (whose sex differs from that assigned at birth). For example, some cisgender boys develop undesired breast tissue growth or retain high voices after puberty; some cisgender girls experience abnormal menstruation patterns or unwanted hair growth.
The president's executive order allows for cisgender care. But it bars transgender children from seeking care for the same purposes -- breast tissue development, voice alteration or hair growth. By discriminating based on sex assigned at birth, the order discriminates on the basis of sex.
It bears noting that VCU and UVA are also subject to federal and state laws that prohibit sex discrimination in education, as well as state law that prohibits gender identity discrimination. The attorneys general of nearly every other state with similar state laws have rejected the order as discriminatory. Finally, basic principles of medical negligence prohibit providers from suddenly stopping care once a doctor-patient relationship is created. Similarly, foundational bioethical principles require providers to respect patient autonomy, comply with the best medical standards, and refuse to discriminate against vulnerable groups.
A few weeks ago, a mother who packed up her family's life in Tennessee (whose gender-affirming care ban is currently before the U.S. Supreme Court) and moved to Virginia, called a local lawyer in tears when local hospitals stopped caring for her child. "Where will my family be safe?" she asked.
Federal law, Virginia state law, medical ethics and the medical standards supported by every major medical organization dictate that her child be able to access the care they need in Virginia.
Photos: Transgender rights protest at Capitol Square
Craig Konnoth is a professor of law at the University of Virginia, where he specializes in health law and LGBT rights, and a former deputy solicitor general for the state of California. Contact Konnoth at [email protected].
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