The Biden administration issued its strongest statement of support yet for trans youth being targeted by Texas Gov. Greg Abbott’s discriminatory policies.
On Wednesday, the U.S. Department of Health and Human Services (HHS) declared that it would take “immediate action if needed” to protect individuals targeted by a Feb. 22 directive declaring that gender-affirming health care is “child abuse.” Abbott’s order, while non-binding, has reportedly led the Texas Department of Family Protective Services (DFPS) to open investigations into several Texas families who have permitted their trans children to access medical treatments like puberty blockers.
“HHS is closely monitoring the situation in Texas and will use every tool at our disposal to keep Texans safe,” HHS Secretary Xavier Becerra said in a statement.
In addition to signaling that the White House is prepared to take legal action against Texas, HHS issued comprehensive guidance outlining the rights of trans youth and medical authorities who provide them care. Although Abbott’s directive threatens “mandatory reporters” such as teachers and doctors with criminal penalties if they fail to notify DFPS of gender-affirming treatments being given to a trans young person, HHS affirmed that medical privacy is protected under federal law.
The HHS guidance also made clear that the rights of trans youth to appropriate medical care is protected under Section 1557 of the Affordable Care Act (ACA), which bans discrimination on the basis of characteristics like gender identity in federally-funded health centres.
Cathryn Oakley, state legislative director for the Human Rights Campaign (HRC), praised the HHS guidance as “timely” and “important” as Texas families attempt to fight back against Abbott’s directive. A district court judge partially enjoined the Texas policy on March 2 after a DFPS employee with a trans child and a mental health counsellor who treats trans youth fought to block its implementation.
“The Texas government’s attacks against transgender youth and those who love and care for them are discriminatory and unconscionable.”
“HHS reminded health care providers they are not required to disclose the private information of their patients,” Oakley tells Xtra. “That is really important because if you do consider gender-affirming care to be child abuse, then those records are things that could be discoverable as part of a criminal investigation.”
Should the rights of Texas trans youth and their families be violated, HHS made clear that they have the ability to seek redress. Any young person who experiences discrimination can file a federal complaint online through the HHS Office of Civil Rights.
“The Texas government’s attacks against transgender youth and those who love and care for them are discriminatory and unconscionable,” Becerra said. “These actions are clearly dangerous to the health of transgender youth in Texas. At HHS, we listen to medical experts and doctors, and they agree with us, that access to affirming care for transgender youth is essential and can be life-saving.”
LGBTQ2S+ advocates believe the HHS guidance released is not only of practical importance to trans youth but also has a real symbolic and emotional impact. Research from The Trevor Project suggests that young people are listening closely to how politicians talk about them: when state lawmakers and national leaders introduce policies negatively impacting the LGBTQ2S+ community, calls to suicide prevention hotlines typically go up.
Currey Cook, senior counsel with Lambda Legal, says that on the other hand, seeing positive messages from their elected representatives can positively benefit youth mental health. He says the White House’s recent statements are an “amazing message of support and affirmation for trans youth.”
“With so much anti-trans legislation pending in state legislatures around the country and then this most recent move by Texas last week, it’s just a full-on attack against trans youth,” Cook tells Xtra in a phone interview. “Hearing from HHS that ‘we see you, we support you, and here are ways to address discrimination that’s facing you’ is just incredibly important.”
While the White House has not announced specific actions against Texas, U.S. President Joe Biden reaffirmed Becerra’s pledge that the administration was prepared to do so. In a statement this week, Biden said investigations of affirming parents are “discriminatory” and he has put Texas officials “on notice.”
“This is government overreach at its worst,” he said. “Like so many anti-transgender attacks proliferating in states across the country, the governor’s actions callously threaten to harm children and their families just to score politics points.”
The comments echo Biden’s State of the Union address a day prior, when he expressed support for trans youth under attack by an onslaught of bills introduced in state legislatures across the U.S. and reiterated his plea to pass the Equality Act. The landmark civil rights bill, which would extend federal protections for LGBTQ2S+ people in areas like housing and health care, has stalled in the Senate after passing the House on two separate occasions.
“As I said last year, especially to our younger transgender Americans, I will always have your back as your president, so you can be yourself and reach your God-given potential,” Biden said in the March 1 speech.
A court is set to rule on a full injunction against the Texas directive on March 11.
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