Trans Health Equity Act Passes Maryland House of Delegates

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The Trans Health Equity Act, also known as House Bill 283, was passed by the Maryland House of Delegates with a majority of 93-37 votes. This bill mandates the inclusion of gender-affirming treatment for transgender individuals in Maryland’s Medicaid program.

The next step was for the measure to be considered by the Maryland Senate. Del. Anne Kaiser (D-Montgomery County), who introduced HB 283, expressed pride in the decision, calling it a significant step forward for transgender healthcare in the state. The bill passed.

So starting January 1, 2024, Maryland’s Trans Health Equity Act will become effective, making gender-affirming care more accessible to the state’s estimated 94,000 transgender and nonbinary residents. This law will expand Medicaid coverage to include more types of gender-affirming procedures.

Gender-Affirming Treatment

Gender-affirming treatment is a form of healthcare that involves medical procedures such as hormone therapy and surgery to help align an individual’s physical characteristics with their gender identity. This type of treatment has been found to be beneficial for individuals with gender dysphoria, a condition in which a person experiences distress due to a mismatch between their gender identity and the sex they were assigned at birth.

For transgender women, gender-affirming surgery may involve procedures such as breast augmentation and genital reconstruction. In contrast, for transgender men, it may involve procedures such as chest reconstruction and genital reconstruction. The specific surgeries and procedures performed can vary depending on an individual’s needs and goals, and can involve multiple stages over some time.

Gender-affirming surgery is often just one part of a more extensive process of gender transition, which can also involve hormone therapy, counseling, and other medical and social support. It is an essential option for many transgender individuals who experience gender dysphoria. In this condition, a person experiences distress or discomfort as a result of the mismatch between their gender identity and their physical characteristics.

transgender legal newsConcerns About the Trans Health Equity Act

Although the Act has been hailed by advocates, there is some concern. The Act may strain the existing infrastructure for such treatments, as there is already a shortage of trained doctors, especially outside urban areas. The move towards more inclusive healthcare in Maryland contrasts with other states that have restricted or banned such care.

Additional challenges may include the extensive wait times for certain procedures and the financial costs associated with gender-affirming care, especially since many trans individuals have limited income. The overall sentiment among advocates is the need for increased funding, infrastructure, and education to accommodate the expected rise in demand. Will that happen? We will see.

Gender-Affirming Legislation in Other States

Maryland is not the first state to consider legislation related to gender-affirming treatment. In fact, several states have passed healthcare-related laws for transgender individuals, while others have introduced bills that are still being debated.

In 2019, Vermont became the first state in the US to allow gender-affirming surgery to be covered by Medicaid. The landmark legislation was hailed by many as a major step forward for transgender healthcare access, as many transgender people face significant financial barriers to accessing gender-affirming surgeries. Before the Vermont law, many private insurance plans and Medicaid programs excluded coverage of these procedures, deeming them cosmetic or unnecessary.

Additionally, New York and California have passed similar laws requiring Medicaid to cover gender-affirming treatment. In Oregon, the Transgender Health Care Equity Act, which mandates the coverage of gender-affirming treatments, was signed into law in 2019. In Illinois, a bill was introduced in 2021 that would require insurance companies in the state to cover gender-affirming treatment.

On the other hand, some states have taken a different approach and passed legislation to restrict gender-affirming treatment for minors. For example, in Arkansas, a law was passed in 2021 that prohibits doctors from providing gender-affirming treatment to individuals under th, with penalties including loss of license and fines. Similar bills have been introduced in other states, such as Alabama, Texas, and South Carolina.

Maryland’s Law Is a Step in the Right Direction

The passage of the Trans Health Equity Act in Maryland would significantly improve healthcare access for transgender individuals in the state. While there is still much work to be done to ensure equitable healthcare access for transgender individuals across the country, the efforts of lawmakers in Maryland and other states demonstrate progress toward this critical goal.

House Bill 361 – Birth Certificate Modernization Act

Another piece of legislation in 2023, House Bill 361, also known as the Birth Certificate Modernization Act, proposes to make it easier for individuals to change the sex and parent designations on their birth certificates in the state of Maryland.

Under the proposed law, the Secretary of Health would be required to issue a new birth certificate with a different sex designation if the Department receives satisfactory proof that the individual has undergone appropriate medical treatment for sex transition or has an intersex condition or if a court of competent jurisdiction has issued an order indicating that the sex of an individual has been changed.

The bill would also allow individuals to change the parent designations on their birth certificates by making a written request under penalty of perjury, and to choose the designation of “mother,” “father,” or “parent.” The proposed law would require the new birth certificates to not be marked as “amended” and not indicate that a change has been made to the sex or name designation.

Related Maryland Law

Maryland has been making legislative efforts to improve healthcare access and equity for transgender individuals. In 2014, Maryland became one of the first states to prohibit discrimination based on gender identity in employment, housing, and public accommodations.

In 2018, Maryland Governor Larry Hogan signed an executive order prohibiting discrimination based on gender identity in state employment. This was followed by the state legislature passing the Caregiver Advise, Record, Enable (CARE) Act, which requires healthcare providers to ask patients if they identify as LGBTQ+ and to document that information in their medical records.

In 2019, Maryland enacted the Vital Records Modernization Act, which allows individuals to update the gender on their birth certificate without requiring gender confirmation surgery or a court order. The law also allows parents to choose a nonbinary gender marker for their child’s birth certificate.

Transgender Law Updates

May 20, 2024

The Supreme Court on Monday continued to stear clear of transgender law issues.  The court declined to review an appeal from a group of parents who alleged that their suburban Washington-area school district was concealing transgender support plans involving their children.

Three parents had sued the Montgomery County school district in Maryland over guidelines adopted in 2020. These guidelines permit schools to develop support plans for transgender students and “respect the students’ wishes to keep certain information confidential.”

The Supreme Court’s decision left in place an appeals court ruling that the parents lacked standing to sue, as they never demonstrated that the plans were applied to their children. What was the court’s thinking?  Annoying, they did not give an explanation.

This decision is the latest in a series of cases where the high court has avoided addressing transgender rights in schools, often upholding lower court rulings in favor of transgender students.

The parents argued in their appeal that the issue was significant for parents, their children, and public schools across the country. “It is important for parents, their children, and public schools alike to have this issue addressed and resolved now,” they stated.

The school district defended the guidelines, stating they were designed to “ensure a safe and respectful school environment” for all students. The district asserted that a student’s disclosure to a teacher or administrator does not authorize the school staff to share that information with others.

Both a federal district court and the 4th US Circuit Court of Appeals ruled in favor of the school district, but for different reasons. The appeals court concluded that the parents had not proven they were directly harmed, which was necessary to have standing to sue.

May 16, 2024

A federal appeals court has upheld a lower court’s ruling that a Georgia county discriminated against a sheriff’s deputy by not covering her gender-affirming surgery. The U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 that a health insurance provider can be held liable under the Civil Rights Act of 1964 for denying coverage based on an employee’s transgender status.

Houston County Sgt. Anna Lange sued Sheriff Cullen Talton and the county in 2019 after being denied coverage for the surgery. The court found that the county’s refusal amounted to illegal sex discrimination under the Civil Rights Act, citing a 2020 Supreme Court decision that prohibited firing employees for being transgender. The county was ordered to pay for Lange’s surgery, which she eventually received, and a jury awarded her $60,000 in damages.

The county tried to overturn the ruling and the damages, but the appeals court upheld the decision, reinforcing that discrimination based on transgender status is considered sex discrimination under the Civil Rights Act.

May 1, 2024

Several Republican state attorneys general are challenging a new federal regulation designed to protect transgender students’ rights in schools, which includes provisions to prevent blanket bans on transgender students using bathrooms that align with their gender. The officials argue that these policies could harm women and girls, infringe on free speech rights, and impose burdens on states.

Lawsuits were filed in multiple federal courts, including in Louisiana, Alabama, and Texas, with the goal of delaying the regulation’s implementation, which is set for August 1. These states claim the regulation, if unchallenged, could invalidate existing state laws and preempt those under consideration. T

hey also contend that it mandates the use of pronouns associated with a student’s gender identity and undermines female sports. The Biden administration’s regulation does not specifically address sports participation, but it opposes outright bans on transgender students in sports, a contentious issue in recent years.

April 16, 2024

A federal appeals court ruled that West Virginia’s transgender sports ban violates the federal rights of a teen athlete. The U.S. Fourth Circuit Court of Appeals decided 2-1 that the state’s law cannot be applied to a 13-year-old  because it violates Title IX, which prohibits sex-based discrimination in schools. Jackson, who has identified as a girl and taken puberty blockers since third grade, was previously blocked from being removed from her middle school cross country and track teams by the same court.

The ruling stated that forcing the child to choose between participating in boys’ sports or not at all is discriminatory. The ACLU and Lambda Legal, who sued West Virginia, hailed the decision as a victory for transgender youth. However, West Virginia Attorney General Patrick Morrisey criticized the ruling and vowed to continue defending the state’s law, arguing it is necessary to protect women’s sports. The court clarified that its decision applies specifically to this case and does not mandate that all transgender girls be allowed to play on girls’ teams.

West Virginia is one of at least 24 states with laws keeping transgender women and girls from competing in certain sports. The other states are Texas, Florida, North Carolina, Indiana, Missouri, Tennessee, South Carolina, Alabama, Kentucky, Louisiana, Oklahoma, Iowa, Arkansas, Mississippi, Kansas, Montana, North Dakota, South Dakota, and Wyoming.

September 15, 2023

Federal Chief District Judge David Nye heard arguments regarding Idaho’s school bathroom law, Senate Bill 1100, which prevents transgender students from using facilities that match their gender identity. Instead, the law requires students to use bathrooms based on their “biological sex” as assigned at birth.

The law, briefly in effect since July 1, has been temporarily blocked by the U.S. District Court after being challenged for discriminating against transgender students.  The question is whether the law violates the Equal Protection and Due Process Clauses of the 14th Amendment and Title IX.

September 23, 2023

A federal judge has ruled that while the new Florida law limiting healthcare for transgender individuals is under legal scrutiny, it can still be enforced for adults. Judge Robert Hinkle, who had earlier stopped the application of this law for minors, stated that adults trying to broaden this block haven’t shown they’d face immediate harm before the case concludes. Initiated by Republican Gov. Ron DeSantis in May, this law not only prohibits transgender treatments for young people but also mandates that transgender adults personally consent to treatments with a doctor present. This is concerning for advocates, as many treatments are typically prescribed via telehealth or by nurse practitioners, making in-person visits challenging. Florida is among 22 states that recently banned gender-related healthcare for minors, but it stands out by also regulating care for transgender adults.

August 18, 2023

Two anti-trans groups are suing the state of Washington in Seattle federal court over a new law that policymakers say is intended to ensure shelter for teens seeking gender-affirming care and reproductive health services, alleging that the measure tramples parents’ ability raise their children.

August 17, 2023 – New Executive Order in Oklahoma

Oklahoma Governor Kevin Stitt issued an executive order outlining definitions for terms such as “man,” “woman,” “father,” and “mother” based on sex assigned at birth, following two unsuccessful attempts in the state legislature. This order, applicable to government bodies, schools, and state institutions, does not accommodate transgender, nonbinary, or intersex individuals. Stitt positioned this move as defending against the supposed dilution of gender terms, particularly “woman.”

Nicole McAfee from Freedom Oklahoma, an LGBTQ+ advocacy group, criticized the directive for promoting civil rights violations and promoting gender policing. The order mirrors efforts in conservative states to restrict transgender rights and is influenced by the Independent Women’s Voice, a right-leaning group advocating for anti-trans policies.

Within the past year, Oklahoma has introduced several laws that negatively impact the trans community, ranging from restricting gender-affirming medical care for minors to disallowing nonbinary markers on birth certificates.

June 29, 2023 – Tennessee Blocks Ban on Medical Treatment for Minors

A federal court in Tennessee has temporarily blocked a state ban on certain medical treatments designed to affirm the gender of minors. The decision came after the US government, three transgender minors, their parents, and a doctor, argued that the measure, known as SB 1, is potentially unconstitutional. This legislation, which would have come into effect on July 1, is part of a series of gender-affirming care bans enacted across the country in 2023, many of which have been suspended by courts pending further review.

The Tennessee law specifically outlaws medical interventions, such as puberty blockers or hormone therapy, that aim to help minors with gender dysphoria align their biological sex with their gender identity. The law also includes gender-affirming surgeries.

However, Judge Eli Richardson ruled the plaintiffs could not argue against this aspect due to lack of standing. Judge Richardson found that the plaintiffs had shown they are likely to succeed in their claims that the ban breaches the 14th Amendment’s clauses on equal protection and due process, and that they would suffer significant harm if the law is enforced. The ruling on the preliminary injunction was made without hearing oral arguments.

May 17, 2023 – Gender Affirming Care in Missouri

Missouri Attorney General Andrew Bailey is seeking the dismissal of a lawsuit filed by Southampton Community Healthcare, a St. Louis clinic, challenging an emergency rule that banned gender-affirming care for transgender minors and adults. Bailey terminated the rule on Tuesday and has asked the St. Louis County Circuit Court to end the legal challenge, citing the rule’s nonexistence as the basis for mootness. The lawsuit, filed last month, sought to have the rule declared unlawful. Judge Ellen Ribaudo issued a temporary administrative stay in April. The judge later converting it into a temporary restraining order earlier this month. Bailey stated that due to the rule’s expiration in February 2024 and the scheduling constraints for a preliminary injunction hearing, there wouldn’t be sufficient time for an appeal.

The termination of the rule was partly prompted by a bill passed by Missouri lawmakers on May 10, 2023, which imposes a four-year ban on gender-affirming care for minors. The bill also includes a provision that restricts access to gender-affirming healthcare under Medicaid.

May 16, 2023 – Iowa Supreme Court Dismisses Appeal

The Iowa Supreme Court dismissed an appeal that contested a ruling declaring a state law unconstitutional. This law had been used by the state’s health department to deny Medicaid coverage for gender-affirming surgeries. The lawsuit ended when the state agreed to cover the surgical costs for two transgender individuals, following a lower court’s decision that the law violated the state constitution’s equal protection clause. The court stated that the state’s agreement to pay for the procedures made its appeal on the amendment to the civil rights act moot. (You can find the briefs in the case here.)

May 15, 2023 – Florida Transgender Lawsuit Dismissed (for now)

A lawsuit filed by a transgender police detective, accusing Florida Atlantic University of sex discrimination under two federal laws for not promoting him, was dismissed. The U.S. District Court for the Southern District of Florida addressed the question of whether an employee could sue for sex bias under Title IX of the 1972 Education Amendments Act or if such claims are preempted by Title VII of the 1964 Civil Rights Act. While the plaintiff, Jonathan Ponce, cited decisions by the First, Third, and Fourth circuits and a Justice Department manual, the court argued that Ponce’s case was more similar to cases decided by the Fifth and Seventh circuits, which held that Title VII is the exclusive remedy for sex discrimination at federally funded educational institutions. Furthermore, the court stated that even if Ponce could sue under Title IX, his claims under both statutes failed to meet federal pleading standards, leading to the dismissal of the suit. However, this case may not be over quite yet. The court dismissed the suit without prejudice, allowing Ponce the opportunity to file an amended complaint.

September 22, 2023 – Transgender Teacher Settles Claim

Jennifer Eller, a transgender teacher who alleged harassment by students, parents, and colleagues, has settled a lawsuit with the Prince George’s County Board of Education in Maryland. The settlement, reached on Monday, includes policy modifications, training protocols focusing on LGBTQ+ issues, and monetary compensation.

Eller had filed the lawsuit in 2018 after facing discrimination, including being told to present as male and facing threats. Despite formally reporting these issues, she experienced further setbacks like the removal of her Advanced Placement English class and an unfruitful disciplinary hearing. Eller hopes all of this helps ensures a safer environment for LGBTQ+ students and teachers.