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Transgender girls in Austin, TX

Three transgender pre-teen girls sit together in a bedroom in the Austin, Texas area. Republican lawmakers in several states have recently pushed legislation to keep doctors from providing care to transgender children, including providing puberty blockers like the ones these girls have begun taking. The Department of Justice on Thursday said such legislation is unconstitutional. (Photo: Adam Gray / Barcroft Media via Getty Images / Barcroft Media via Getty Images)

GOP State Laws Attacking Trans Kids' Rights Are 'Unconstitutional': DOJ

"We hope that state legislatures finally get the message," said the ACLU, which has filed lawsuits challenging anti-trans legislation.

Julia Conley

Recently-passed state laws attacking transgender children's rights, which have been condemned by human rights groups and medical experts, have now officially been labeled unconstitutional by the U.S. Department of Justice.

In a legal brief filed Thursday in support of a lawsuit filed by the ACLU, DOJ officials wrote that Arkansas' law barring physicians from providing gender-affirming care to transgender youths runs afoul of the Equal Protection Clause of the 14th Amendment.

"Arkansas cannot demonstrate that prohibiting certain medically necessary healthcare only for transgender people is substantially related to achieving a legitimate government interest," the DOJ wrote. "Prohibiting medically necessary care in the manner proscribed by Act 626 amounts to intentional discrimination against transgender minors on the basis of sex."

"These filings from the Department of Justice confirm what we have been telling legislatures all year: Banning trans youth from sports and denying trans youth health care violates the Constitution and federal law." —Chase Strangio, ACLU

The law was vetoed by Republican Gov. Asa Hutchinson in April, after thousands of transgender youths, parents, and pediatricians spoke out against the legislation. GOP lawmakers, however, soon overrode the governor's veto.

Act 626 is scheduled to take effect in late July and will prohibit doctors in the state from providing or referring gender-confirming hormone treatments, puberty blockers, or surgeries to people under age 18.

In the DOJ's brief, officials argue the law violates the Affordable Care Act's guarantee of access to nondiscriminatory healthcare in addition to running afoul of the 14th Amendment. 

The ACLU filed its lawsuit in Arkansas last month on behalf of four transgender youths and two doctors who provide gender-affirming care. 

Another "statement of interest" filed by the DOJ pertained to the ACLU's lawsuit challenging West Virginia's recently passed law which bars transgender girls from participating on girls' high school sports teams. Officials said the law violates Title IX as well as the Equal Protection Clause. 

Republicans in West Virginia have claimed the law will protect athletic opportunities for girls who are identified as female at birth—an assertion the DOJ questioned.

"To be sure, there remain significant barriers to providing full equity in athletics to female students," wrote officials. "But permitting participation by transgender girls, who make up 'approximately one half of one percent' of the United States' population, is not one of them."

The West Virginia Secondary School Activities Commission has said that it hasn't received any complaints about transgender athletes playing on girls' teams.

"The United States has a significant interest in ensuring that all students, including students who are transgender, can participate in an educational environment free of unlawful discrimination," the brief stated. "This includes ensuring that recipients offer equal athletic opportunities to students regardless of their sex."

Arkansas and West Virginia are just two of the states where Republicans are currently waging attacks on young transgender people's rights, against the guidance of the American Academy of Pediatrics and other experts. 

As of April, at least 15 states were considering legislation similar to Act 626 in Arkansas, and dozens of state legislatures have proposed laws barring transgender girls from participating in sports. 

By filing its legal briefs this week, Human Rights Campaign President Alphonso David said in a statement, "This Justice Department is making clear that these laws are harmful and illegal and cannot be tolerated."

"Today's filings from the Department of Justice send a powerful message that discrimination against transgender youth is not just wrong, it is also plainly unconstitutional," said Chase Strangio, deputy director for trans justice at the ACLU's LGBTQ & HIV Project. "These filings from the Department of Justice confirm what we have been telling legislatures all year: Banning trans youth from sports and denying trans youth health care violates the Constitution and federal law. We hope that state legislatures finally get the message."

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