South Carolina Ignores 4th Circuit Court Ruling, Senate Bans Trans Care

Days after a 4th Circuit Court of Appeals ruling stating that discrimination against transgender medical care is unconstitutional, the South Carolina Senate passed a trans care ban.

Bill Badzo - Columbia South Carolina - State Capitol - United States - CC BY-NC-SA 2.0 DEED

Days after a landmark ruling in the 4th U.S. Circuit Court of Appeals that found medical discrimination against transgender people unconstitutional, the South Carolina Senate passed a broad gender-affirming care ban. The bill, House Bill 4624, prohibits gender-affirming care for transgender youth and also targets mental health providers. It forces teachers to out transgender students to their parents. It also includes an expansive public funding ban, prohibiting the use of public funds "directly or indirectly" for gender-affirming care at any age, potentially affecting the availability of all transgender care in the state. By doing so, South Carolina appears to be ignoring a ruling from the very court circuit in which it is located, just days after the decision was issued.

The bill states that “A physician, mental health provider, or other health care professional shall not knowingly provide gender transition procedures to a person under eighteen years of age.” The mental health provider portion of the bill was a heavy point of contention, with the ACLU of South Carolina interpreting it to cover at least some counseling for gender dysphoria. Though a later amendment was added that says it would not “impose liability on any speech protected by federal or state law,” the vagueness of the bill means that mental health providers who give out of state treatment locations to the families of transgender youth may still be targeted.

The bill also includes an extremely broad prohibition on public funding for gender-affirming care. It specifies that "public funds may not be used directly or indirectly" for such care, regardless of the recipient's age. This would eliminate Medicaid coverage, prohibit gender-affirming care under the state employee health insurance plan, and could potentially target any doctor or hospital that receives public funding. Notably, "indirectly" funding gender-affirming care could mean that any doctor providing such care might see state grants jeopardized. Such actions have already been taken against the Medical University of South Carolina, whose funding was threatened unless it ceased all transgender care in 2023. The hospital discontinued care for all transgender youth shortly thereafter. This provision, along with much of the bill, appears to come from the Family Policy Alliance’s model legislation, although it goes further than that model legislation in applying the ban to any age.

You can see the portion of the bill barring public funding as well as Medicaid coverage here:

Public funding ban

The bill seems to both directly and indirectly disregard a recent decision by the 4th U.S. Circuit Court of Appeals, to which South Carolina belongs. In that decision, a Medicaid ban on transgender care in West Virginia and a public employee health care policy ban in North Carolina were deemed unconstitutional. The court determined that gender identity is a protected characteristic and that medical discrimination infringes upon the equal protection rights of transgender individuals. Similarly, it ruled that Medicaid bans contravene both the Affordable Care Act and the Medicaid Act.

This point was emphasized repeatedly, including during a speech by Democratic Senator Tameika Isaac Devine, who observed, "Just earlier this week, the 4th Circuit, which includes South Carolina, ruled that North Carolina’s state healthcare plan must pay for gender-affirming surgeries... The 4th Circuit found that North Carolina’s law violates Equal Protection... This is the second ruling in favor of trans rights from the same 4th Circuit just this month. Last week during the discussion of bathrooms, I brought it up and it was disregarded."

Republicans rejected multiple amendments designed to make the bill less harmful towards transgender people. One rejected amendment would have banned conversion therapy. Another rejected amendment would have allowed for “reversible” treatments. An amendment adding speech protections to mental health providers was adopted, but the nature of those protections are likely to be seen as vague in the context of the bill.

The bill then ultimately passed 27-8, with all Republicans voting for the bill and disregarding the 4th Circuit decision on transgender care. Following the bill, Executive Director of the ACLU’s South Carolina branch Jace Woodrum stated, “I’m heartbroken. I imagine so many of you who have been in this fight with us are heartbroken too… I know in moments like this it may feel like nothing we do matters, but it does. We showed South Carolina that transgender kids do matter, and we’re going to keep fighting for them. I hope that you’ll continue to fight with us.”

The bill will return to the House for concurrence with the changes made. If the House concurs, it will proceed to the governor's desk, where it will take effect upon the governor's signature.