State legislatures across the nation are continually targeting the rights of transgender individuals with a variety of laws affecting everything from bathrooms to medical care. One particularly invasive type of legislation, the gender-affirming healthcare ban, seeks to prohibit all forms of healthcare that align a person’s physical traits with their gender identity for individuals under eighteen. Bans like this severely impede the treatment necessary for transgender youth suffering from gender dysphoria, which carries serious physical consequences and sometimes fatal psychological repercussions. As legislative sessions pass, more and more states are introducing and actually enacting these bans
Striking down these bans as constitutionally impermissible is vital to ensuring that transgender individuals have equal access to healthcare. As litigators bring important and crucial lawsuits to challenge these bans under the federal Constitution, this Note proposes and explores options under the lesser-known but highly valuable state constitution. Although often ignored, many state constitutions contain enforceable rights that could protect the existence of gender-affirming healthcare, especially if federal constitutional protection is denied at the Supreme Court. This Note specifically dives into the state constitutional right to health as an avenue for greater protection, and argues that the general principles of judicial federalism should protect the rights of transgender individuals in this context. As the federal landscape changes, this Note urges litigators to use all the resources available to prevent unwarranted state interference, including previously unenforced state constitutional provisions. State legislators cannot be allowed to violate their own constitutions in the campaign against transgender individuals, and litigators have the ability and obligation to hold them accountable.