Transgender Health § 1557 Project: Initial Research Instructions

Project Overview:

Transgender, non-binary, intersex, and two-spirit people — and especially transgender youth — have been facing vicious, highly politicized, and rapidly escalating attacks on their right to best practice health care. Equitable access to safe, affirming and scientifically-validated medical care is a backbone to a just, democratic society. At L4GG, we believe that no court or legislature should step in between a patient and their doctor.  Not for reproductive healthcare.  Not for transgender healthcare. Not for any healthcare.

In recent years, some lawmakers have used stoking fear and hatred against gender-affirming care and the transgender community as a “wedge issue”, using misinformation as justification to enact laws to further marginalize an already marginalized group.  Just this month, Representative Marjorie Taylor Greene introduced a bill that would make providing best practice gender-affirming medical care for transgender minors into a felony nationwide.  On August 21, Florida published a rule to prohibit its state Medicaid from covering gender-affirming care.  Earlier this year, the Florida Department of Health published a document that advised against giving transgender young people any gender affirming care, including even “social transition”—acknowledging a child is the gender the child says they are.  In July, Alabama passed a bill banning gender-affirming care to minors.  And back in February, Texas directed its Department of Family Protective Services (DFPS) to investigate caregivers who authorized gender-affirming care for their children.

Gender-affirming care is life-saving treatment, and laws denying that treatment will lead to children’s deaths.  It has much higher satisfaction rates than most other types of medical care, and is backed by a solid base of evidence supported by every major U.S medical and mental health organization, including the American Medical Association, American Academy of Pediatrics, Federation of Pediatric Organizations, and American Psychological Association, for both transgender youth and adults.

This is not just a gender justice but a racial justice one – transgender people of color face higher access disparities and negative health outcomes when compared to their white transgender, or people of color cisgender, counterparts. For example, 32% of transgender people of color have no health insurance coverage as opposed to 22% overall, and while 0.3% of the overall population lives with HIV, a full 19% of Black, trans women do.

Increased federal and state protections are more necessary than ever.  As part of the Biden administration’s response to anti-trans policies, it has released a proposed rule that would increase protections for transgender Americans seeking health care.  This project aims to provide our partners at National Coalition for Transgender Equality (NCTE), Transgender Law Center (TLC), and Transgender Legal Defense and Education Fund (TLDEF) with the relevant provision(s) in each state’s code that either expand or contract protections for transgender and non-binary health, so that advocates can target comments about the administration’s proposed rulemaking to frontline states, and to develop model policies to increase these protections.

Instructions for Participating Attorneys:

We have provided two sets of questions for you to answer below. One set (Titled Form B: State-Level Substantive Legal Questions) will ask you a series of legal questions in regards to gender affirming care in your assigned state.  Research these first, and keep track of your answers in a separate Word document. A second set of questions (Form A: Citation-Level Legal Questions) is a series of brief questions for each citation that you use to answer the questions.  At the end of the project you, or a member of your team, will add the answers to these questions to a database that will be used by L4GG and our allies to better protect gender affirming care.  Detailed instructions are below.  

Please complete each of these steps by close of business, Monday, September 12.

STEP 1: RESEARCH & DRAFT ANSWERS TO STATE-LEVEL SUBSTANTIVE LEGAL QUESTIONS

  • Familiarize yourself with the available secondary sources on these questions. 

  • For your assigned state, research the state-level substantive legal questions listed in this document titled “Transgender Health § 1557 Project Form B: State-Level Research Questions”.

  • Keep your notes and draft responses to the questions in a Word document.

  • As you are researching and drafting your responses, you will find and cite to authoritative sources such as case law, statutes, regulations or administrative rules, executive orders, policies and informal guidances, proposed regulations, bills, and even statements by top state law enforcement officials such as a governors or attorneys general. Collectively, we will refer to those authoritative sources as “Citations.”

  • For each Citation you will need to research using your Westlaw or Lexis account to ensure the Citation has not been overruled by superseding case law or legislation.  As you do this research, please keep track of the following information in your Word document:

    • Bluebook citation

    • Public website URL where the source material can be viewed online (a free site such as Cornell Legal Information Institute, Justia, or Google Scholar rather than a paid subscription site like Westlaw or Lexis) 

    • Type of Citation (constitutional provision, case law, statute, and so forth)

STEP 2: RESEARCH & DRAFT ANSWERS TO CITATION-LEVEL QUESTIONS

STEP 3: FILL OUT “FORM A - CITATION-LEVEL LEGAL QUESTIONS” FOR EACH CITATION YOU CITE IN YOUR RESEARCH

Please DO NOT begin filling out any of these forms until your team has completed all of the research described in Steps 1 & 2 above. 

  • When ready (after you have already drafted answers to the questions in your Word document) use this link to fill out the form “Form A: Citation-Level Legal Questions” for each of the citations you cite in your research. The order that you enter these authorities is important.  The questions that will be asked for each of the citations is available below in the section entitled “Form A: Citation-Level Legal Questions”.

  • NOTE: The order in which you enter these citations is important. Please enter these citations to authorities in the following order:

    • (1) beginning with state constitutional provisions,

    • (2) then statutes,

    • (3) then case law, and

    • (4) then other authorities. 

  • The case law entries will request that you tag which constitutional provisions and statutes are cited in the holding, so the constitutional provisions and statutes MUST be entered first.

  • When each and every citation you rely upon in your analyses is added, continue to Step 4.

STEP 4: FILL OUT “FORM B - STATE-LEVEL SUBSTANTIVE LEGAL QUESTIONS” FOR EACH CITATION

Please DO NOT begin filling out “Form B: State-Level Substantive Legal Questions” until your team has completed all of the research described above AND filled out “Form A: Citations to Authorities” for each and every citation you rely upon in your analyses.

Tools:

  • Your Westlaw or Lexis account. You will need to use Westlaw’s flag tool or Lexis’s  Keycite to ensure the authorities cited remain good law.

  • Secondary sources that may help you with this research include: 

    • Sources by TLDEF.  These include citations to several relevant laws, but note that many of these sources have not been updated since early 2020, and major changes have occurred during those last two years.  They still may be useful in several states in reference to the following questions:

    • Healthcare Laws and Policies by the Movement Advancement Project.  This includes detailed analyses of several issues related to this project including citations to enacted bills.  However, please note that we will be instead requesting citations to enacted statutory provisions, not bill numbers.  The bills will help you find the statutory provisions, but are not the answers by themselves.  Clicking on “citations & more information”, on the following tabs could assist with the following research questions:

      • Private Insurance (Form B, substantive question 1)

      • Medical Care Bans (Form B, substantive question 2)

      • Medicaid (Form B, substantive questions 3-4)

      • State Employee Benefits (Form B, substantive question 5-6)

  • Justia (publicly available resource of the state codes of each jurisdiction)

  • Cornell Legal Information Institute (publicly available resource of the state regulations)

  • Google Scholar (publicly available resource of case law).

  • Puerto Rico Code (publicly available English translation of the Puerto Rico code on casetext.com, an English translation is also available on Westlaw)

  • IMPORTANT NOTE RE: SECONDARY SOURCES: If you use secondary sources for your research, you must independently confirm that any information upon which you are relying is up to date.

Thank you for contributing to this important project. If you have any questions, please email us at probono@L4GG.org.