A panel of three judges with the 9th Circuit Court of Appeals on Wednesday repeatedly questioned the state of Idaho’s decision to outlaw gender-affirming care for minors.
Specifically, they asked John Bursch, an attorney from the conservative legal firm Alliance Defending Freedom representing Attorney General Raúl Labrador’s office, how the law doesn’t discriminate based on sex and gender identity.
State legislators made it a felony in 2023 for medical providers to offer gender-affirming care, like cross-sex hormones or puberty blockers, for the purpose of treating gender dysphoria in minors.
However, parents can consent to those same types of treatments, like breast augmentations and plastic surgery, if their children are not transgender.
“How can you say that this is not related to sex ?” asked Judge Margaret McKeown.
“Breast removal for a girl who has cancer versus one who wants to appear to look like a boy – very different reasons for that medical treatment,” Bursch said. “Those are not the same treatments, even though the same procedure is being done.”
After several back and forth questions, McKeown didn’t seem convinced.
“It seems to me that in permitting the treatment there that you are creating a classification that distinguishes between cisgender and transgender,” she said.
Regardless, Bursch said parents have “no substantive due process right” to choose specific medical treatments for their children. Instead, he said, the state should be able to regulate, including banning, treatments it deems harmful.
“Do not require Idaho to use children as medical experiments,” Bursch said.
Surveys of the transgender community and dozens of studies have found gender-affirming care offers significant benefits to those experiencing gender dysphoria, including reductions in anxiety, depression and thoughts of self-harm.
There are risks associated with hormone therapy, including potential infertility and decreasing bone density.
Regret among patients is rare.
Chase Strangio, deputy director for the ACLU’s Transgender Justice division and attorney for the plaintiffs, said Idaho’s law “categorically bans” treatments based on a person’s identity and gender.
Elizabeth Hecker, an attorney with the U.S. Department of Justice’s Civil Rights division, backed Strangio’s argument, saying the statute entirely swivels on someone’s assigned sex at birth.
Bursch and the Idaho Attorney General’s office appealed a district court’s ruling that initially blocked the law from taking effect entirely as the lawsuit progressed. But in April, the U.S. Supreme Court significantly narrowed the injunction’s scope to apply only to the plaintiffs in the case, saying the lower court had overstepped its bounds.
The 9th Circuit panel has no deadline in which to issue its decision in this case.
Meanwhile, the U.S. Supreme Court said it would hear a case involving a similar law enacted in Tennessee during its upcoming session. An opinion is expected next summer.
Copyright 2024 Boise State Public Radio
Copyright 2024 Boise State Public Radio News
