The Free Exercise Clause in Transition: Examining Religious Challenges to State Bans on Gender-Affirming Care
When Rabbi Daniel Bogard’s child was four years old, he asked his father one night, “[D]addy, do you think God could make me over again as a boy?” Footnote #1 content: What Next, After They Testified: The Rabbi Leading an Interfaith Fight for Trans Rights, SLATE, at 01:43 (June 15, 2023, 5:00 AM), https://slate.com/podcasts/what-next/2023/06/jewish-community- fighting-anti-trans-legislation-missouri [https://perma.cc/GB5G-2LKT]. Although his son’s school was supportive of his son’s transition and a local rabbi even gave him a yarmulke in the colors of the trans pride flag, Bogard and his family found less acceptance elsewhere. Footnote #2 content: See Ariana Eunjung Cha, ‘Our State Is at War with Our Family’: Clergy with Trans Kids Fight Back, WASH. POST (Feb. 28, 2023, 2:18 PM), https://www.washingtonpost.com/health/2023/02/28/ missouri-transgender-bills. In particular, Bogard felt threatened by increasing legislative efforts in Missouri to restrict the rights of transgender youth, which he characterized as the government “creat[ing] an undue burden on [his] ability to practice [his] own faith.” Footnote #3 content: Daniel Bogard (@RavBogard), X (Feb. 7, 2023, 6:13 AM), https://twitter.com/RavBogard/status/ 1622916568437952513; see Cha, supra note 2. As a result, Bogard has been among the many religious leaders advocating against the restriction of transgender rights in statehouses across the United States. Footnote #4 content: See Jackie Hajdenberg, Missouri Jewish Leaders Advocate for Trans Rights at State Legislature, TIMES ISR. (Feb. 10, 2023, 2:09 AM), https://www.timesofisrael.com/missouri-jewish-leaders-advocate- for-trans-rights-at-state-legislature/ [https://perma.cc/C8AV-6P6H] (highlighting one Jewish educator who said, “As a Jew, this is something that speaks to me quite a bit. We call it ‘b’tzelem Elokim’ – ‘created in the image of God,’ literally . . . . But the way we understand this is that God bestows a special honor onto humans that requires that we need to be treated with dignity and we need to treat others with dignity.”); Cha, supra note 2.
There are many ongoing attacks on transgender rights right now, but one of the quickest to gain traction has been the effort to restrict access to gender-affirming care for minors. As of the end of October 2023, twenty-two states have enacted laws or executive-level policies aimed at denying access to gender-affirming care for transgender and nonbinary minors. Footnote #5 content: See infra Table 1; see also HRC Found., Map: Attacks on Gender Affirming Care by State, HUM. RTS. CAMPAIGN (Nov. 13, 2023), https://www.hrc.org/resources/attacks-on-gender-affirming-care-by- state-map [https://perma.cc/6TEV-3V3J]. Many of these laws have sparked intense public debate and backlash, with opponents arguing that these laws often have devastating and even deadly consequences for youth who are targeted. Footnote #6 content: See Kareen M. Matouk & Melina Wald, Gender-Affirming Care Saves Lives: Growing Legislative Attempts to Limit, Ban, or Criminalize Access to This Critical Model of Medical Care Endangers the Health and Well-Being of Transgender and Nonbinary Youth, COLUM. U. DEP’T. PSYCHIATRY (Mar. 30, 2022), https://www.columbiapsychiatry.org/news/gender-affirming-care-saves-lives [https://perma.cc/ ZTQ7-M6H2]; Orion Rummler, How Utah’s New Ban on Gender-Affirming Care for Minors Is Affecting Trans Teens in the State, PBS NEWSHOUR (Feb. 3, 2023, 5:25 PM), https://www.pbs.org/newshour/nation/ how-utahs-new-ban-on-gender-affirming-care-for-minors-is-affecting-trans-teens-in-the-state [https:// perma.cc/Q4AN-P2AD].
Opponents of these bans on gender-affirming care have filed lawsuits challenging the laws, typically relying upon the Equal Protection Clause of the Fourteenth Amendment and arguing that the bans constitute an impermissible classification based on sex and transgender status. Footnote #7 content: See, e.g., Class Action Complaint for Declaratory and Injunctive Relief/Notice of Challenge to Constitutionality of Indiana Statute at 2, 42–43, K.C. v. Individual Members of the Med. Licensing Bd. of Ind., No. 23-CV-595, 2023 U.S. Dist. LEXIS 104870 (S.D. Ind. June 16, 2023). While some efforts to challenge these laws on Equal Protection Clause grounds have had some success thus far, Footnote #8 content: See, e.g., Class Action Complaint for Declaratory and Injunctive Relief/Notice of Challenge to Constitutionality of Indiana Statute at 2, 42–43, K.C. v. Individual Members of the Med. Licensing Bd. of Ind., No. 23-CV-595, 2023 U.S. Dist. LEXIS 104870 (S.D. Ind. June 16, 2023). litigation remains pending in several cases, and it is unlikely that these issues will be resolved any time soon. Footnote #9 content: See, e.g., Doe v. Ladapo, No. 23cv114, 2023 WL 3833848, at *1 (N.D. Fla. June 6, 2023) (granting preliminary injunction against Florida statute banning gender-affirming care for minors); Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1230–31 (11th Cir. 2023) (vacating a district court’s preliminary injunction against enforcement of Alabama’s ban on gender-affirming care, and finding that the ban is “subject only to rational basis review”); K.C., 2023 U.S. Dist. LEXIS 104870, at *3–4 (granting preliminary injunction against Indiana statute banning gender transition procedures for minors).
Continue Reading The Free Exercise Clause in Transition: Examining Religious Challenges to State Bans on Gender-Affirming Care.