PHOENIX — The Biden administration is warning states that moves to curb the rights of parents of transgender children to get the medical and surgical care they need could violate federal law.
“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal guarantees,” Kristen Clarke, an assistant attorney general at the Department of Justice wrote to state attorneys general this past week.
“State laws and policies that prevent parents or guardians from following the advance of a healthcare professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protection by both the Equal Protection and the Due Process clauses of the Fourteenth Amendment,” she said.
The letter comes on the heels of Gov. Doug Ducey signing SB 1138 which forbids doctors from providing “irreversible gender reassignment surgery” to any individual who is younger than 18.
Ducey defended the move at a press conference Thursday, saying that anyone who has questions about his or her identity can wait until turning 18 before making such a decision.
But at that same event he also declined to say, after being asked twice, whether he believes that transgender people actually exist. Instead, he launched into a defense of his separate decision to sign SB 1165, which forbids transgender girls from participating in girls’ sports in public schools or colleges.
“I’m going to protect female sports,” he said. “And that’s what the legislation does.”
By Friday, however, with time to reflect, the governor had a different answer to the same question.
“Yesterday I was asked an absurd and offensive question,” he said in a statement on Twitter.
“Do transgender individuals exist?” Ducey continued. “Of course, they do.”
And the governor said he always has believed that, citing the letter he sent when he signed SB 1138 and SB 1165. In there, he said the two bills were “narrowly tailored” to address the specific legal issues of gender reassignment surgery and who can participate in girls’ sports “while ensuring that transgender individuals continue to receive the same dignity, respect and kindness as every individual in our society.”
And press aide C.J. Karamargin called the question asked Thursday a “cheap shot.”
But Karamargin would not address the letter from the Department of Justice, saying the governor does not comment on threats of litigation.
Attorney General Mark Brnovich, however, said if the federal government does go after the new law, he will defend it.
“Arizonans do not tolerate radical national interests attempting to redefine our values,” said Brnovich who is a Republican candidate for U.S. Senate.
In sending out the letter, Clarke said the legal issue turns on the question of discrimination based on sex.
“Because a government cannot discriminate against a person for being transgender without discriminating against that individual based on sex, state laws or policies that discriminate against transgender people must be substantially related to a sufficiently important governmental interest,” she wrote.
And Clarke said it isn’t necessary for a statute to specifically target transgender individuals to be illegal.
“For instance, a ban on gender-affirming procedures, therapy or medication may be a form of discrimination against transgender persons,” she said, even if it does not specifically target transgender individuals. More to the point, Clarke suggested it would be hard for any state that enacts such a prohibition to prove that there is an important governmental interest.
“It is well established within the medical community that gender-affirming care for transgender youth is not only appropriate but often necessary for their physical and mental health,” she said.
That language mirrors some of the testimony from parents of transgender children during hearings about the legislation. They told lawmakers how it is important for their children to have bodies that reflect who they are.
And then there's the issue of whether it is discrimination to ban surgery based on the reason, targeting only those who want it to have their bodies conform with their gender identity.
During debate, Rep. Kelli Butler, D-Paradise Valley, pointed out that nothing in existing state law — and nothing in SB 1138 — precludes teens, with parental permission, from getting surgery to increase their breast size, something she suggested falls within the area of “gender-affirming surgery.”
Clarke said her office has a legitimate interest in protecting transgender rights.
“People who are transgender are frequently vulnerable to discrimination in many aspects of their lives, and are often victims of targeted threats, legal restrictions, and anti-transgender violence,” she told the state attorneys general. “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.”
And Clark said that it’s not just a question of constitutional rights. She cited provisions in specific federal statutes she said protect the rights of transgender people, including youths with parental permission, to surgery.
For example, she said the Rehabilitation Act of 1973 protects people with disabilities, something Clark said also includes people who experience gender dysphoria, where individuals feel distress because their biological sex does not match their gender orientation.
And Clark said the Affordable Care Act protects the civil rights of individuals, including transgender youth, who want nondiscriminatory access to healthcare.
She said that's not just the opinion of her office. Clark said the U.S. Department of Health and Human Services said the restricting the ability of an individual to get receive medically necessary care, including gender-affirming care, may also violate that law.
The legal threats come from more than just the Department of Justice. Both the American Civil Liberties Union and the National Center for Lesbian Rights also have said they are examining the statute.
“This is a harmful law that wrongly allows the government to dictate medical care for transgender youth in Arizona,” said Asaf Orr, senior attorney for NCLR.
“Parents want what’s best for their children,” Orr said. “They don’t need the state of Arizona seeking to take over their parental role.”
By 
