Lois A. Weithorn

Volume 75, Issue 3, 713-822

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice.  Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare  practitioners who provide such services at risk of license revocation.  Some statutes create  rights of enforcement in third parties or the state, some establish criminal penalties, and others restrict financing of services. Minor patients and their parents have sued to prevent enforcement of these policies, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Many federal and state district courts have issued preliminary injunctions staying enforcement of some or all of the provisions of the reviewed statutes. Some of these injunctions have been reversed or modified on appeal, creating a split in the federal circuits.

This Article reviews and examines the enacted state measures and the litigation challenging those policies. It focuses primarily on Due Process Clause challenges, analyzing the issues through the lens of the law governing healthcare decisionmaking for minors. Guided by federal constitutional law, state statutory and case law, scholarly commentary, and the new Restatement of Children and the Law, this Article reviews the doctrine of parental consent and its exceptions. It concludes that the recent state restrictions on access to gender-affirming care for TGD youth do not satisfy the legally recognized exceptions to that doctrine, and that therefore, the intrusions into family decisionmaking authorized by these statutes are unconstitutional under the Due Process Clause.

Proponents of these measures reject the scientific basis for the standards of care and the consensus positions of the healthcare community. In their place, the measures’ proponents proffer misinformation and in some instances, disinformation (that is, content disseminated with the intent of creating controversy, confusion, and uncertainty). Of additional concern, some federal appellate courts have given weight to these unsubstantiated assertions and misrepresentations of the scientific literature in reversing lower court decisions that were well-grounded in the science. This phenomenon reflects a broader trend: Politically and ideologically motivated efforts have infused misinformation into public discussions and legal decisionmaking, affecting the outcomes of legal decisions.

As the review of the scientific literature within this Article reveals, the measures—not the treatments they restrict—risk substantial harm to a highly vulnerable group of young persons and their families, isolating these individuals and families from much-needed professional sources of treatment and support. Although the denial of needed treatment is the most obvious harm, the infliction of pain on these children and their families through social stigmatization, rejection, and marginalization is among the many ripple effects of these legal measures.