Department of Justice issues stark warning to state lawmakers over attacks on trans rights

A protester holds a placard that says "Hatred is a choice, being trans is not" during a trans rights demonstration

The US Department of Justice (DOJ) has warned that states seeking to restrict the rights of trans people may be violating federal law. 

The DOJ issued new guidance concerning the growing number of anti-trans bills in a searing letter sent to all of the nation’s attorneys general on Thursday (31 March), Transgender Day of Visibility.

The letter – signed by assistant attorney general Kristen Clarke for the DOJ’s civil rights division – advised lawmakers against “intentionally erecting discriminatory barriers” that target trans Americans as this would be at odds with federal protections. This includes preventing trans people from receiving gender-affirming medical care. 

The DOJ said state laws and policies which prevent supportive parents and guardians from helping their trans kids access “medically necessary or otherwise appropriate care” may infringe on “rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment”. 

“When a state or recipient of federal funds criminalises or even restricts a type of medical care predominantly sought by transgender persons, an intent to disfavor that class can ‘readily be presumed’,” it added.

“For instance, a ban on gender-affirming procedures, therapy, or medication may be a form of discrimination against transgender persons, which is impermissible unless it is ‘substantially related’ to a sufficiently important governmental interest.

Clarke said in a statement that the DOJ is “committed to ensuring that all children” can “live free from discrimination, abuse and harassment”. 

“Today’s letter reaffirms state and local officials’ obligation to ensure that their laws and policies do not undermine or harm the health and safety of children, regardless of a child’s gender identity,” Clarke added. 

The letter also cited that laws discriminating against the trans community could fall foul of protections and provisions within the Affordable Care Act, Title IX of the Education Amendments of 1972, the Omnibus Crime Control and Safe Streets Act of 1968, the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Ac

Arizona and Oklahoma are among the states to most recently enact measures against trans youth. 

Governor Doug Ducey signed two bills into law restricting gender-affirming surgeries for trans youth and banning trans students from participating in women’s and girls’ sports in Arizona. Oklahoma governor Kevin Stitt also signed an anti-trans sports ban into law. 

In 2021, Arkansas was the first state in the US to ban gender-affirming care for trans minors after the state legislature overrode a veto by governor Asa Hutchinson. The ACLU has since brought legal action against the state to fight the cruel anti-trans bill, and a federal judge temporarily blocked the law from going into effect while it’s being debated in courts. 

Just a month later, Tennessee governor Bill Lee also signed a ban on gender-affirming healthcare for trans youth

In recent months, Republican lawmakers in several states have also pushed bills and policies attacking gender-affirming care for trans minors. 

Texas attorney general Ken Paxton issued a non-binding legal opinion in which he labelled gender-affirming medical care “child abuse” in February. This prompted Republican governor Greg Abbott to order the state to investigate the parents of trans children involved in such practices

A judge has since ordered that the investigations be temporarily halted while the case goes through the legal system. Paxton has asked the state’s supreme court to overturn the ruling and allow the investigations to go forward. 

US attorney general Merrick Garland also issued his own statement to mark Transgender Day of Visibility, stressing that his department is “committed to protecting the civil and constitutional rights” of trans people.

“Transgender individuals deserve to be able to live free from discrimination, harassment, violence, and threats of violence,” Garland said. 

“Transgender youth deserve to be loved and protected. And members of the transgender community deserve to be treated with dignity and respect.”

Garland vowed the DOJ will “continue to work tirelessly to make real the promise of equal justice under law for everyone in our country”.