Joette Katz Authors Article In Connecticut Law Tribune Entitled "Criminalization Of Gender-Affirming Care Feeds A Crisis"

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Recently, there has been a huge national effort to punish those who facilitate minors' access to gender-affirming medical care. Some states have gone so far as to classify...
United States Food, Drugs, Healthcare, Life Sciences
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Recently, there has been a huge national effort to punish those who facilitate minors' access to gender-affirming medical care. Some states have gone so far as to classify gender-affirming care as "child abuse;" for example, the order issued by the Governor of Texas in February 2022, directing Texas's Department of Family and Protective Services to investigate any reported instances of health care providers or parents who provide or seek out gender-affirming care for children. The provision and consequent labeling of such care could then result in children being removed from their families.

Over the past two-plus years, as a result of legislation proposed or enacted nearly 60,000 transgender youth and young adults across 15 states have been placed in jeopardy of losing access to gender-affirming care. More than one third of the 150,000 youth ages 13-17 who identify as transgender live in the 15 states that have restricted access to gender-affirming care or are currently considering laws that would do so. More than 4,000 young adults, ages 18 to 20, would also be at risk of losing access to gender-affirming care under some proposed bills that would apply to young people over the age of 18.

The medical care at issue includes hormones to delay puberty and to promote physical development that is consistent with a child's gender identity. More than a dozen studies confirm that access to gender-affirming care is associated with better mental health outcomes, and the lack of access to such care is associated with higher rates of suicidality, depression and self-harming behavior. Major medical organizations, including the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the Endocrine Society, the American Medical Association, the American Psychological Association and the American Psychiatric Association, have published policy statements and guidelines on how to provide age-appropriate gender-affirming care. All of those medical societies find such care to be evidence-based and medically necessary.

Nevertheless, the aforementioned bills criminalize health care providers, subject them to discipline from state licensing boards and allow individuals to file civil suits for damages against medical providers who violate these laws. Some bills provide penalties for parents who facilitate minors' access to gender-affirming medical care. Nearly half of these bills would further limit access to gender-affirming care for transgender youth by barring certain insurance providers from offering coverage for gender-affirming care, by placing restrictions on the use of state funds or state facilities to provide this care or by excluding gender-affirming care as a tax-deductible health care expense.

While all this is happening, we are in the midst of a mental health crisis, with teenage suicide the second leading cause of death among people 15 to 24 in the United States. According to the National Alliance of Mental Illness, nearly 20% of high school students report serious thoughts of suicide and 9% have attempted to end their lives. Research shows that gender-affirming care improves mental health and overall well-being for transgender people, and a recent study published in Pediatrics found that access to pubertal suppression treatment was associated with lower odds of lifetime suicidal ideation among transgender adults. We also know that efforts to support transgender youth to live according to their internal sense of gender is associated with better mental health and feelings of safety at school, while efforts to change the gender identity of transgender people (i.e., conversion therapy) are associated with suicidality.

To be clear, according to the American Psychological Association and the American Psychiatric Association, there is no evidence that risk for mental illness is inherently attributable to one's identity of being transgender. The mental health issue is considered multifactorial, stemming from an internal conflict between one's appearance and identity, limited availability of mental health services, low access to health care providers with expertise in caring for youth who identify as transgender, discrimination, stigma and social rejection. In short, youth who identify as transgender often confront degradation and derision, which contribute to feelings of rejection and isolation that can adversely affect physical and emotional well-being.

And while advocates and families are challenging directives like the one in Texas, the movement continues. In September, the governor of Virginia unveiled new guidelines that would make it more difficult for transgender youth to change their names and pronouns at school. More than two dozen bills seeking to restrict transgender health care access have been introduced across 11 states — Kansas, Kentucky, Missouri, Montana, New Hampshire, Oklahoma, South Carolina, Tennessee, Texas, Utah and Virginia — for the legislative sessions beginning in early 2023. Bills targeting other facets of transgender livelihood have been filed in many of these states and more are expected. While gender-affirming health care providers and parents of transgender youths are the primary targets of these bills, many of which seek to criminalize helping a transgender child obtain what doctors and psychologists widely consider "medically necessary care," these efforts ultimately punish the youth we should be helping. Improving psychological well-being and reducing suicide risk are part of our charge as a society. They were certainly part of my mission when I was commissioner of Connecticut's Department of Children and Families as we expanded mental health services for all youth, making treatment accessible for youth without requiring they become a part of the DCF caseload.

I don't know if the aforementioned bills are the product of what has been termed "a permissible climate of hate," driven by disinformation and fearmongering. I do know, however, that they are based on misinformation. There is ample scientific literature from the most reputable medical societies that provide guidelines for developmentally appropriate care, including discussion of puberty blockers and hormones, which ones are geared toward youth not ready to make decisions about puberty, when access to gender-affirming hormones and potential access to gender-affirming surgery should be available, etc. And I was eternally grateful for all the medical guidance I received when I was asked to authorize treatment for youth who were in my care and custody.

As the commissioner, it was imperative to maintain a safe space where children and youth could be free to develop and explore their gender identity and expression and to have access to medically necessary and appropriate care. It was my obligation to ensure that the medical needs of transgender and gender diverse children in state custody were addressed in a timely manner. My goal was to provide consent where appropriate based on sound medical advice and to ensure that the child/youth would have personal, clinical and medical support and care coordination in their gender affirmation process. For all the things I have done in my professional and personal life, it never occurred to me that my support and authorization of gender-affirming care for the youth in state care would be the most personally dangerous, potentially subjecting me to legal claims of child abuse.

Fortunately, there are laws being passed to counter this Pandora's box of nightmarish legislation around the country. A new California law, effective as of Jan. 1, 2023 shields families of transgender youth from criminal prosecution if they travel to California for gender-affirming health procedures, such as surgeries or hormone therapy, from states that ban such treatments for minors, thereby making California a refuge for transgender youth and their parents. There is also a new law that blocks out-of-state subpoenas and prohibits medical providers from sharing information on gender-affirming care with out-of-state entities. California is considering proposals that would expand those protections by prohibiting a magistrate from issuing an arrest warrant for violating another state's law that criminalizes helping someone obtain gender-affirming care. Other states are considering proposals that would increase protections for patients and providers and would give the state jurisdiction in child custody cases involving parents who bring their children there for gender-affirming health care.

To some degree, we have always lived under a bifurcated system: for example the kind of health care someone can access, and the scope of criminal laws someone can be punished under have always differed depending on residence. But now more than ever, passing refuge bills for those seeking medical care in their states, expanding health-care access and adopting nondiscrimination laws are all important steps to combat the trend developing across the country. Rather than criminalize the providing of certain transition-related medical care services to transgender youth, our families and the doctors who treat them deserve our support nationally. What ever happened to first do no harm? I believe that as a society, we are in a crisis.

Originally published by Connecticut Law Tribune

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