Divisions of the Biden Department of Human Services and Health went all in on transgender kids’ rights on March 31, which is now known as the “Transgender Day of Visibility.” Numerous publications promoted “gender-affirming” care, which included access to hormones and puberty blockers for all children with gender dysphoria. They also cited the fact that these drugs can reverse any changes. On a case-by–case basis, the memos recommended minors undergo genital mutilation surgery. They did admit that they are irreversible. The enforcement arm of these proclamations has been declared by the Biden Department for Justice (DOJ).
A memo was issued the same day by Assistant Attorney General Kristen Clarke to state attorneys general.
The U.S. Department of Justice (the Department), is committed to ensuring transgender youth are treated with dignity and fairness in accordance with federal law. This includes making sure that transgender youth are not discriminated against based on gender identity.
How will the DOJ intervene? Invoking federal antidiscrimination laws. The federal civil rights legislation that was passed in the 1960s did not consider sexual preference or gender identity. Executive Order 13988, which President Biden signed on his first day of office, saw a memo from DOJ directing the Supreme Court’s Bostock v. Clayton County decision to Title IX of 1972’s Education Amendments. Although it is unclear whether the DOJ has the ability to extend legislation passed by Congress in this manner through regulation, that doesn’t mean they won’t try.
The DOJ’s belief that a majority decision of SCOTUS regarding sex discrimination at work extends to the ongoing debate about providing gender transition care for minors is absurd. Justice Neil Gorsuch, in the majority opinion, noted the narrowness of the decision, writing: “They say that sex-segregated bathroom, locker room, and dress code will prove unsustainable following our decision today, but none of these other laws have been before us; we haven’t had the benefit of adversarial test about the meanings of their terms and we don’t prejudge any such question now.”
Clarke will pursue any state that contemplates a law or policy against life-altering medication and minor surgery, despite the majority opinion.
Parents and guardians may not be able to follow the advice of a healthcare professional about what is medically necessary or appropriate for their transgender child. This could violate the Equal Protection or Due Process Clauses of Section Fourteenth Amendment. The Equal Protection Clause requires that laws that discriminate based on sex must be inspected closely and prohibited from being used unless there is a compelling reason. A government cannot discriminate against someone because they are transgender, “without discriminating against that person based on sexual orientation.” Therefore, state laws and policies that discriminate against transgender persons must be “substantially related” to a sufficient important governmental interest.
It may be in the best interest of the state government not to create millions upon millions of infertile individuals who will then need services to transsexualize, as many transgender youths do. These states may also be looking at other countries’ actions as they grapple with this issue. Author Abigail Shrier pointed out that the Biden DOJ has adopted a radical position regarding transgender minors, while European countries like France, Sweden, Finland, and the U.K. are refusing medical intervention for transgender children.
Shrier claims that other countries based their decisions on a decade’s worth of evidence that failed ot establish the benefits of gender-affirming medical treatment’s emotional or physical effects. Clarke warns the states that Clarke is still writing:
The Due Process Clause also protects parents’ right to “to seek and comply with medical advice” in order to protect their children’s health. The heavy burden of justifying interference with this right must be carried by the state or local governments. It is well-established within the medical community, that transgender youth receiving gender-affirming treatment is not only appropriate, but often necessary for their mental and physical health.
Recent European decisions have shown that these treatments are not necessary or appropriate.
Clarke is arguing for the DOJ’s right to direct medical care for their children, while Democrat-led municipalities and states are passing laws that permit children to get COVID-19 vaccines without the consent or knowledge of their parents. Some blue states allow them to receive birth control, mental healthcare medication, and abortions without the parents’ consent. Some even consider removing a child if the parents refuse to accept medical transition services. The DOJ might decide to support parents when it is politically convenient, rather than just supporting them.
Clarke also cites Sections 1557 of Affordable Care Act, Omnibus Crime Control and Safe Streets Act of 1967, and Section 504 of Rehabilitation Act of 1973, as legal barriers that could make gender-transition surgeries and medication illegal for children under 18. Only one of these may have considered transgender transition: the Affordable Care Act. Only the Affordable Care Act makes it clear that discrimination in care provision is prohibited. Clarke’s other citations would refer to the DOJ applying law in a situation where it didn’t intend to use the Bostock decision language.
Clarke uses legal action to threaten states that seek to prevent children from irreversible medical treatment. In her confirmation hearings, she proved to be just as radical and out of the mainstream as Republicans claimed. This memo confirms that the Biden administration is willing to implement policies for the most radical minority members of their base. The midterms are coming up and Democrats don’t seem to be encouraged by any negative news.
