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October 13, 2022 Article

Impact of Anti-LGBTQ+ Legislative and Executive Branch Action on Children’s Well-Being

This new wave of government-sanctioned discrimination targeting LGBTQ+ youth and limiting their ability to be themselves and see their families and community represented while at school only exacerbates a safety and well-being crisis.

By Maia Zelkind and M. Currey Cook

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

While weaponizing the child welfare system against supportive parents of trans children is new, attempts to harm and silence LGBTQ+ people are not.

While weaponizing the child welfare system against supportive parents of trans children is new, attempts to harm and silence LGBTQ+ people are not.

Pexels | Sharon McCutcheon

In 2022, state legislatures across the country introduced over 300 anti-LGBTQ+ bills. The vast majority of these attacks on LGBTQ+ rights were specifically levied against transgender young people who faced a record number of targeted bills. In states such as Texas and Florida, where bills focused on healthcare failed, their executive branches took action that limited or outright circumvented the democratic process in attempts to impede the ability of transgender youth to receive medically necessary, lifesaving care. In addition to being a public health concern for all LGBTQ+ youth—because ensuring the well-being of children is a core goal and obligation for government and government-funded systems of care for children—this onslaught has important and significant implications for all who work with youth in the child welfare and juvenile justice systems, youth experiencing homelessness, and immigrant or refugee youth. Because LGBTQ+ youth are overrepresented in these populations compared with their non-LGBTQ+ peers and too often face discrimination while in care or receiving services, these attacks directly impact thousands of system-involved youth. High systemic risk factors and poor public health outcomes are already a reality for LGBTQ+ youth. This new wave of government-sanctioned discrimination targeting LGBTQ+ youth and limiting their access to affirming healthcare and school sports, or their ability to be themselves and see their families and community represented while at school, only exacerbates a safety and well-being crisis for youth who are also now reeling from a global pandemic. LGBTQ+ youth need all of us to provide them with additional support and to fight with them against these harmful attacks.

Legislative and Executive Action

Healthcare. In 2022, 21 states introduced legislation to limit, ban, or criminalize access to gender-affirming healthcare for transgender youth. Arkansas was the first state to pass a legislative ban on this healthcare in 2021. The ban was quickly challenged in federal court (Brandt v. Rutledge), and the court granted a preliminary injunction stopping the bill from taking effect. The Eighth Circuit upheld the injunction on August 25, 2022. Following Arkansas’s lead, other states have passed limitations on access to gender-affirming healthcare for transgender youth, including Tennessee, Arizona, and Alabama. Alabama’s law criminalizing this lifesaving healthcare is also subject to a federal lawsuit (Eknes-Tucker v. Marshall). While the surgical ban remains in place, in May 2022, the district court granted a preliminary injunction that blocked the felony ban on prescribing hormone replacement treatment and puberty blockers.

After Texas Republican legislators failed to pass similar legislation criminalizing gender-affirming healthcare for minors, Texas Governor Greg Abbott issued a directive that the state’s Department of Family and Protective Services (DFPS) investigate gender-affirming healthcare as “child abuse.” Lambda Legal, ACLU National and ACLU Texas, and Baker Botts LLP filed a challenge in state court (Doe v. Abbott), and the Texas Supreme Court upheld an injunction blocking these investigations and recognizing the harm caused by these baseless and politically motivated investigations. The court found that the governor lacked authority to issue this directive requiring investigations of gender-affirming care, but the court narrowed the injunction from statewide to only the named plaintiffs. After the statewide injunction was lifted, DFPS renewed investigations and counsel filed a second lawsuit (PFLAG v. Abbott) on behalf of PFLAG National and its Texas member families and three individual families. The trial court granted a temporary injunction blocking investigations against the named families and as to PFLAG and its Texas member families. An appellate court has reinstated the temporary injunction for two of the families and is now considering a request to reinstate the PFLAG injunction, which was automatically stayed when the state appealed.

Florida’s Agency for Health Care Administration (AHCA) adopted a new regulation on August 1, 2022, that denies Medicaid coverage for medically necessary gender-affirming healthcare, including puberty blockers, hormone treatment, and gender-affirming surgery. On September 7, 2022, this rule was challenged in federal court by Lambda Legal, Southern Legal Counsel, Florida Health Justice Project, National Health Law Program, and Pillsbury Winthrop Shaw Pittman LLP (Dekker v. Marstiller), and counsel filed a motion for a preliminary injunction on September 12.

Sports. During the 2022 legislative sessions, 29 states introduced legislation barring transgender youth from playing on sports teams in accordance with their gender identity. Eighteen states have passed these exclusionary athletics bills, including this year in Arizona, Indiana, Iowa, Kentucky, Louisiana, Oklahoma, South Carolina, South Dakota, and Utah. The bans in West Virginia (BPJ v. West Virginia) and Idaho (Hecox v. Little) are currently being challenged in courts, which have issued preliminary injunctions blocking the enforcement of these limitations on participation in sports for transgender youth.

Schools. In 2022, 19 states introduced curriculum restrictions or what are popularly known as “Don’t Say Gay” bills. Six states have passed these bills, including Florida and Alabama in 2022. Two federal lawsuits have been filed challenging Florida’s HB1557: Equality Florida v. DeSantis, filed March 31, 2022, by the National Center for Lesbian Rights and Kaplan Hecker & Fink LLP; and Cousins v. School Board of Orange County, filed July 25, 2022, by Lambda Legal, the Southern Poverty Law Center, Southern Legal Counsel, and Baker McKenzie.

Impact on Well-Being

These bills targeting the rights of LGBTQ+ youth negatively affect their well-being both directly and indirectly. LGBTQ+ youth already face higher rates of negative health and life outcomes as result of the stigma and discrimination they face in society at large, including higher levels of school discipline and family rejection. LGBTQ+ youth also face disproportionate levels of suicidality and depression, homelessness, substance abuse, and social isolation, which make it imperative to affirmatively challenge systemic inequities and bias and promote protective factors. Instead, this tsunami of legislative and executive attacks against LGBTQ+ youth is actively discriminatory and restricts access to the very services and activities that could combat negative well-being outcomes.

Minority stress model. Research on the effects of prejudice and discrimination has led to the development of a social science model called the minority stress model. This model finds that as a result of stigma and discrimination based on their identity and the consequent hostile social environments, individuals in minority groups experience a form of stress known as minority stress. This minority stress causes negative mental and physical health outcomes and leads to health disparities when compared with those in majority groups. LGBTQ+ people experience disproportionately high levels of mental health challenges, which social scientists, including Ilan Meyer, associate with minority stress. Incidents of discrimination, internalized homophobia, and fear of rejection are a few of the stressors that lead to these mental health struggles. LGBTQ+ people who are Black and Brown, live with a disability, or are undocumented experience additional stressors based on multiple aspects of their identity.

Climate of hostility. The climate of hostility toward LGBTQ+ rights is not lost on young people. A recent Trevor project study found that “94% of LGBTQ youth reported that recent politics negatively impacted their mental health.” In addition to the reduction of rights, the fear and confusion generated by legislative attacks take their own toll on the mental health of LGBTQ+ youth. This climate of fear has led families to uproot their lives and move to more accepting states and for providers and mandatory reporters to cease care due to perceived or real legal uncertainty—all destabilizing for young people. Specifically, the “Don’t Say Gay or Trans” laws actively “other” and shame LGBTQ+ educators, families, and students by mandating that these identities are something to be hidden. The Florida law has led to confusion in which educators fear signaling their support for LGBTQ+ youth, discouraging them from creating affirming environments to combat hostility in schools. Attempts to eliminate references to LGBTQ+ historical figures or to prohibit instruction on racism and its historical and current impact contribute to constant messaging for youth that they are second-class citizens, or more pointedly, such efforts are outright attempts at erasure.

Physical and emotional health. Every major medical association organization has endorsed gender-affirming healthcare as medically necessary for treatment of gender dysphoria. Many studies, including a 2021 study, have found that access to gender-affirming healthcare for transgender youth is associated with lower rates of suicidality and depression. Given that this care is lifesaving and associated with positive mental health outcomes, efforts by legislatures and state governments to limit its availability is dangerous, as well as contrary to professional/scientific standards and efforts to improve LGBTQ+ youth’s well-being. See Yale Sch. of Med., Dean’s Advisory Council on LGBTQI+ Affairs, A Critical Review of the June 2022 Florida Medicaid Report on the Medical Treatment of Gender Dysphoria (July 8, 2022); Comments on Florida’s Medicaid Rule, submitted to the Secretary and Deputy Secretary for Medicaid of the Florida Agency for Health Care Administration (July 8, 2022); Biased Science: The Texas and Alabama Measures Criminalizing Medical Treatment for Transgender Children and Adolescents Rely on Inaccurate and Misleading Scientific Claims (Apr. 28, 2022). Policies, like the one in Texas, cause families to fear that merely taking their transgender child to routine medical or behavioral health appointments may result in a report of “child abuse,” creating a chilling effect on access to preventive care that promotes physical and mental health.

Inclusion and socialization. Athletics and extracurriculars are key developmental resources for young people in school. Research shows that the benefits of team sports for youth development are extensive, including lower levels of anxiety and depression, higher self-esteem, and improved teamwork and social skills. In addition, sports have positive long-term outcomes for youth, such as increasing the likelihood of finishing college and making them more likely to plan for their future. See Declaration of Professor Mary D. Fry, PhD, B.P.J. v. W. Va. State Bd. of Educ., No. 2:21-cv-11111 (S.D. W. Va. filed May 26, 2021); Kelly P. Troutman & Mikaela J. Dufur, “From High School Jocks to College Grads: Assessing the Long-Term Effects of High School Sport Participation on Females’ Educational Attainment,” 38 Youth & Soc’y, no. 4 (June 2007). By being excluded from participation, not only are transgender youth experiencing discrimination—they are also being deprived of the many benefits that come with sports. Broadly, a majority of LGBTQ+ youth still report hostile school environments in the form of verbal and physical harassment and physical assault. These students are more likely to have negative school outcomes, including higher rates of truancy and lower rates of pursuing higher education. However, affirming schools can be a source of protective factors from these negative outcomes. Therefore, in addition to preventing transgender youth from enjoying the benefits of sports programs, these legislative attacks hinder affirmative efforts to combat negative school environments and implement programs that uplift LGBTQ+ youth.

Implications for Youth in State Care

These anti-LGTBQ+ bills have unique implications for youth in the child welfare and juvenile justice systems and youth receiving services related to housing instability or immigration status, especially given that LGBTQ+ youth are overrepresented in these populations. For example, multiple studies have found disproportionality in the foster care system. See, e.g., Bianca D.M. Wilson et al., Sexual and Gender Minority Youth in Foster Care: Assessing Disproportionality and Disparities in Los Angeles (2014); Theo G.M. Sandfort, Experiences and Well-Being of Sexual and Gender Diverse Youth in Foster Care in New York City: Disproportionality and Disparities (2020). A recent study funded by the Children’s Bureau in Cuyahoga County, Ohio, found that 32 percent of youth in the state’s foster care system identify as LGBT. This overrepresentation is also the case in juvenile justice settings. A 2016 survey found that “20% of youth in detention halls are lesbian, gay, bisexual, questioning, gender nonconforming, or transgender” and that “85% of those who identified as LGBQ or transgender or gender nonconforming (self-described) are youth are of color.”

Gender-affirming healthcare is already challenging to access, especially for youth in care and youth in detention, whether it is navigating government health insurance, medical consenters, foster parents, and, at times, the child welfare agency itself. These bills and executive actions erect further barriers to youth receiving this lifesaving, medically necessary healthcare. Specific policies, such as Florida’s Medicaid ban, that attempt to ban Medicaid coverage for all gender-affirming healthcare, create a particularly stark limitation for transgender youth in state care, as most youth in the foster care system receive their healthcare coverage through Medicaid. In addition, these bills have caused confusion and fear for affirming families. States like Texas that seek to criminalize this healthcare as child abuse threaten to remove LGBTQ+ youth from loving, affirming homes and place them into government care, a system that is already overburdened and underserving foster youth. These attacks conjure up painful memories of other sordid chapters in child welfare in which certain classes of parents were considered inadequate and targeted because of their race or ethnicity, and the legacy of that targeting persists explicitly and implicitly today. Given the high rates of family rejection for LGBTQ+ youth, these attacks are in direct opposition to efforts to promote family acceptance to keep LGBTQ+ youth from entering the foster care system and allow them to safely remain or reunify with their families.

Finally, the “Don’t Say Gay or Trans” laws have caused confusion and fear for educators and students. For LGBTQ+ students in foster care, these laws may have additional harmful implications. An educator unfamiliar with a child’s specific case may believe  he or she needs to contact a foster parent or family member and disclose that a youth came out to the educator. That foster parent or family member may be un-affirming, risking the stability and permanency of a young person’s placement. It should always be the choice of a young person when and who to disclose his or her identity to, and given the complex nature of child welfare cases, it is especially important that a young person’s confidentiality around identity be respected.

Conclusion

Although this year’s attacks on LGBTQ+ youth are at historically high levels and weaponizing the child welfare system against supportive parents of trans children is novel, attempts to harm, to marginalize, to stigmatize, and to silence LGBTQ+ people are not new. LGBTQ+ youth have had no choice but to be resilient out of a necessity to survive, although far too many have been lost while doing so.

What is different now is more LGBTQ+ young people feeling safe to come out, come out on their own terms, come out at younger ages, and reject antiquated and inaccurate gender stereotypes and the supposed gender binary. Family acceptance is on the rise, support for nondiscrimination protections for LGBTQ+ people is at an all-time high, and visibility in the media and on screens large and small is, at long last, notable. Young trans and nonbinary leaders—like Elliott Hinkle, who contributed a personal and poignant companion piece to this article as a person with lived experience in foster care—are out, proud, and leading reform efforts and changing hearts and minds in a robust, thrilling way.

As adults, what we must do is double down on our support for LGBTQ+ youth, demand change, increase available resources, resist oppression, educate ourselves, and step out of our comfort zone to fight mean-spirited and baseless attacks, because all young people have a right to dignity and happiness. If we do, all our communities large and small will be enriched by the thriving LGBTQ+ youth and young adults around us. 

Maia Zelkind is a paralegal in the Youth in Out-of-Home Care Project and M. Currey Cook is senior counsel and Youth in Out-of-Home Care Project Director at Lambda Legal in New York City, New York.


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