DOJ letter about transgender health care could land Texas in legal hot water

Kristen Clarke, the assistant attorney general for the DOJ's civil rights division, sent a letter Thursday to state attorneys general, which argued that policies blocking gender-affirming care for children violates the Constitution. The letter coincided with Transgender Day of Visibility as well as the announcement of new federal actions intended to make things like travel and government documents more inclusive for transgender Americans.

AUSTIN (KXAN) — If Texas lawmakers end up enacting a bill that officially bans transgender health care options for young people during next year's legislative session, then the state could find itself in hot water with the U.S. Department of Justice (DOJ).

Kristen Clarke, the assistant attorney general for the DOJ's civil rights division, sent a letter Thursday to state attorneys general, which argued that policies blocking gender-affirming care for children violates the Constitution. The letter coincided with Transgender Day of Visibility as well as the announcement of new federal actions intended to make things like travel and government documents more inclusive for transgender Americans.

"The U.S. Department of Justice (the Department) is committed to ensuring that transgender youth, like all youth, are treated fairly and with dignity in accordance with federal law," Clarke's letter began. "This includes ensuring that such youth are not subjected to unlawful discrimination based on their gender identity, including when seeking gender-affirming care."

She further wrote any laws passed by a state "that prevent parents or guardians from following the advice of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the Equal Protection and the Due Process Clauses of the Fourteenth Amendment." She also suggested such laws could put federal funding in jeopardy because of nondiscrimination requirements.

Elizabeth Sepper, a professor at the University of Texas at Austin School of Law, said the letter should serve as a warning shot to state leaders as well as even health care providers.

"The letter details the ways in which restricting health care on the basis of gender identity violates the Constitution in the form of equal protection due process and also parents' rights to raise their children as they see fit and to control their medical care," Sepper said. "I think the real warning, though, comes in the second part of the letter where the Department of Justice points out the variety of federal funding streams that require nondiscrimination from the state as well as from any entity receiving those federal dollars in education and health care, in family placement and beyond. That's really, I think, a warning about what will happen to what Texas relies on to fund most of the services that it provides in the state."

Texas legislators may not have been successful in doing what Arkansas lawmakers did last year when they made Arkansas the first to ban gender-confirming treatments and surgery for transgender youth. They enacted the prohibition even after the Republican governor’s objections.

However, Texas managed to pass a law barring transgender students from playing on girls' sports teams. Gov. Greg Abbott also recently directed the Texas Department of Family and Protective Services to open child abuse investigations into parents who seek gender-affirming care for their transgender children.

Sepper said the DOJ's letter could essentially serve as a "roadmap for litigants" who may challenge the governor's directive.

"The Department of Justice wrote a bit of an outline of a complaint for folks and gave a couple of examples of behavior that would violate federal statutes," she said. "For example, we know there's been a fair amount of litigation in the health care space when transgender people are denied, for instance, treatment for gender dysphoria, and courts have found that violates federal protections against sex discrimination in health care."

A temporary injunction put into place by a Travis County district judge halted Abbott's directive, preventing the state from moving forward with investigating more families with trans kids for child abuse. However, Attorney General Ken Paxton announced he asked the state Supreme Court to intervene and let those investigations proceed again. 

With the state injunction still in place, though, Sepper said she expects the DOJ may not bring a federal lawsuit against Texas right now, but it could lend its support in other future legal challenges.

"We're already seeing various private hospitals, who are themselves recipients of federal funding, say that they will deny health care," Sepper said. "It looks like, right, there could be a plausible lawsuit brought based on sex discrimination that those hospitals are engaged in sex discrimination now because they're worried about the order that requires them to engage in mandatory reporting."

KXAN reached out Friday afternoon to Paxton's office for comment about the DOJ letter and will update this story if a response is shared.

Since President Biden came into office, the DOJ brought a number of lawsuits against Texas, including for its latest redistricting maps and its abortion restrictions.