Constitutional Lawyers Mobilize Against Trans Care Bans Nationwide: 9 States Now Sued

While the wave of anti-trans legislation has been hard to witness, we are seeing the beginning of the fight back in the courts. Gender affirming care bans are challenged in 9 states now.

States where gender affirming care bans are being challenged in court.

Amid a surge in anti-trans legislation in the US, attorneys prepared to mount a strong response. Their counterattack has finally arrived. In recent months, lawyers from the American Civil Liberties Union (ACLU), Department of Justice, National Center for Lesbian Rights (NCLR), Human Rights Campaign (HRC), Lambda Legal, and several other organizations have contested laws banning gender-affirming care for transgender youth in states nationwide. Success stories are emerging, as seen in Missouri, where a temporary restraining order has blocked the ban. With seven states facing lawsuits challenging such bans added in the last few months, the total number of states being sued over gender-affirming care prohibitions now stands at nine.

Many of these lawsuits are spearheaded by the ACLU, a prominent force in the fight against gender-affirming care bans. In seven out of nine states facing legal action, the ACLU serves as a primary organization representing the plaintiffs. Florida and Alabama stand as the exceptions, with Southern Legal Counsel, GLBTQ Legal Advocates & Defenders, the Justice Department, and the National Center for Lesbian Rights leading the challenges there. The NCLR and other organizations have also been active and serve as co-leads in states like Kentucky. The ACLU has played a significant role in opposing these discriminatory laws this year.

Earlier, the organization's Deputy Director of Transgender Justice, Chase Strangio, delivered a powerful testimony against an anti-trans bill in Tennessee. In his testimony, he confidently asserted, "Tennessee will not be able to defend these laws."

See his testimony here:

Shortly after the Tennessee bill was passed, the ACLU challenged it in court on behalf of a 15 year old transgender girl. In a press release from the ACLU, the girl, whose name is not shared, stated,

“I don’t even want to think about having to go back to the dark place I was in before I was able to come out and access the care that my doctors have prescribed for me. I want this law to be struck down so that I can continue to receive the care I need, in conversation with my parents and my doctors, and have the freedom to live my life and do the things I enjoy.”

The ACLU is attempting to ensure that the law meets that fate.

Today, Montana became the latest state to face a lawsuit over its gender-affirming care ban. Montana has emerged as a hotspot for some of the harshest anti-trans laws and actions this year. With a gender-affirming care ban, drag ban, prohibition of gender markers on driver's licenses combined with a rigid definition of sex that excludes transgender individuals, and the expulsion of the state's first trans woman representative from the House floor, Montana has become a focal point for legal observers. The lawsuit is supported by prominent organizations, including ACLU Montana, Lambda Legal, and Perkins Coie, who are all committed to combating anti-trans measures in the state.

Jessica van Garderen, mother of a trans daughter in Montana and a plaintiff in the lawsuit, was quoted in a joint statement:

“It is mentally and physically painful to feel like you are trapped in the wrong body. Going through puberty for the wrong sex is like having your body betray you on a daily basis. The only treatment we have found to be effective and give our daughter hope again is hormone therapy. The difference we have experienced is night and day and there is no going back. Taking away this crucial medical care is inhumane and a violation of our rights. We will fight this law for our daughter and every other family whose rights are being trampled.”

Earlier this year, Montana increased their budget by $2.6 million to account for court challenges to clearly unconstitutional legislation.

There is ample reason to believe these lawsuits will succeed. So far, legal challenges against gender-affirming care bans and anti-trans policies have been effective. Bolstered by the recent Supreme Court precedent in Bostock v. Clayton County, judges recognize that discrimination against transgender individuals constitutes sex discrimination and is prohibited under US law. Such policies also infringe on transgender people's due process and equal protection rights.

In Alabama, Arkansas, and Texas, courts have enjoined gender-affirming care bans and child abuse enforcement measures. Recently in Missouri, a series of bans and restrictions targeting even adults were blocked, and this injunction will remain in place for at least two months while the case is under deliberation. It is clear that judges have shown little tolerance for anti-trans legislation.

States where lawsuits on gender affirming care bans have been filed include the following:

• Alabama - Ban temporarily blocked in court

• Arkansas - Ban temporarily blocked in court

• Florida - Ongoing litigation

• Indiana - Ongoing litigation

• Kentucky - Ongoing litigation

• Missouri - Ban temporarily blocked in court

• Montana - Ongoing litigation

• Oklahoma - Ongoing litigation

• Tennessee - Ongoing litigation

These lawsuits do not include several other categories of lawsuits where trans plaintiffs have also seen success, such as Tennessee’s drag ban, West Virginia’s sports ban, Utah’s Sports Ban, and Texas’ child abuse enforcements against trans kids, all of which have been blocked in court.

As the legislative season dies down, the narrative around transgender legislation is likely to slowly shift. Fewer laws will be passed targeting the community, although some states with legislative cycles that run throughout the year will continue to demand coverage. The focus will shift toward a massive, nationwide mobilization of constitutional lawyers dedicated to dismantling the anti-trans legislation that has proliferated this year. Considering their previous successes, news of victorious lawsuits should uplift the community during this phase. This period commences now.

An update has been made to this article to acknowledge the NCLR’s role in several cases.