Transgender youth are under attack. Facing an already-dire mental health crisis, trans adolescents now confront state legislatures that have enacted sweeping bans on gender-affirming medical care. These prohibitions have barred trans adolescents, their families, and doctors from engaging in and pro-viding medically necessary care. In the face of these laws, transgender minors and their families have gone to the courts for relief. Specifically, these plaintiffs have argued that state bans on gender-affirming medical care for transgender minors violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.2 In this article, we contend that bans on gender- affirming care utilize an all-too-familiar conduct-driven framework to mask status-based discrimination on the basis of transgender status and sex.

To do so, we explain how legislatures have historically used a deceptive conduct-centered framework against LGBTQIA+ persons and the means by which the Supreme Court has rejected this approach as a cover for status-based discrimination. Next, we describe gender-affirming care as being undertaken by both cisgender and transgender minors alike to reveal how the bans use conduct based framing to prohibit exclusively transgender minors from accessing such care, thus discriminating on the basis of transgender status. Finally, we apply the interlocked sex discrimination reasoning established in Bostock v. Clayton County to the bans on gender-affirming care. In doing so, we demonstrate how medical providers must engage in a two-step identification process under the bans to determine a minor’s access to “masculinizing” or “feminizing” care, thereby uncovering how the prohibitions use conduct as a means of discriminating on the basis of sex. This article concludes by reminding readers that while access to gender-affirming care is a topic of significant controversy and political salience, we must not forget its stakes.

Keep Reading Under (Conduct-Based) Attack: Familiar Discrimination and The Trans Care Bans