AUSTIN, Texas - Texas officials are seeing a firestorm of criticism over their lawsuit against the Obama administration's guidance on how schools should treat transgender students.

Texas, joined by 10 other mostly "red" states, wants to overturn a Justice Department determination that transgender students should be allowed to use the restroom that corresponds with their gender identity. Dan Quinn, communications director for the Texas Freedom Network, described the lawsuit as nothing more than political theater.

"This is another example of our state's top elected officials playing politics with people's lives," he said. "These are already vulnerable kids who simply want to be able to use the restroom without being harassed and bullied."

In announcing the suit, Texas Attorney General Ken Paxton dismissed the civil rights issue, calling the regulation an "unconstitutional overreach by the federal government." The U.S. Justice Department issued the guideline after North Carolina passed a law restricting transgender people to the restroom matching the gender on their birth certificate.

Quinn said the U.S. Supreme Court has made it clear that someone cannot sue an agency just because they disagree with that agency's guidance, and that an agency's guidance only can be challenged through a contested legal case.

"This action by the administration was a guidance for local school districts on how to make sure they treat all of their students fairly and equally," he said. "So, it's kind of hard to imagine here what legal objection the attorney general actually has to this."

Quinn said Titles VII and IX of the Civil Rights Act prohibit discrimination on the basis of sex, adding that federal courts already have ruled that the law includes protections for gay and transgender people.

The text of the lawsuit is online at texasattorneygeneral.gov.


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By Cecilia Nowell for KFF Health News.
Broadcast version by Roz Brown for New Mexico News Connection reporting for the KFF Health News-Public News Service Collaboration.

This summer, Sophia Machado packed her bags and left her home in Oregon to move to Albuquerque, New Mexico, where her sister lived and where, Machado had heard, residents were friendlier to their transgender neighbors and gender-affirming health care was easier to get.

Machado, 36, is transgender and has good health insurance through her job. Within weeks, she was able to get into a small primary care clinic, where her sister was already a patient and where the doctor was willing to refill her estrogen prescription and refer her to an endocrinologist.

She felt fortunate. "I know that a lot of the larger medical institutions here are pretty slammed," she said.

Other patients seeking gender-affirming health care in New Mexico, where access is protected by law, haven't been as lucky.

After her primary care doctor retired in 2020, Anne Withrow, a 73-year-old trans woman who has lived in Albuquerque for over 50 years, sought care at Truman Health Services, a clinic specializing in transgender health care at the University of New Mexico. "They said, 'We have a waiting list.' A year later they still had a waiting list. A year later, before I managed to go back, I got a call," she said.

But instead of the clinic, the caller was a provider from a local community-based health center who had gotten her name and was able to see her. Meanwhile, the state's premier clinic for transgender health is still at capacity, as of October, and unable to accept new patients. Officials said they have stopped trying to maintain a waitlist and instead refer patients elsewhere.

Over the past two years, as nearly half of states passed legislation restricting gender-affirming health care, many transgender people began relocating to states that protect access. But not all those states have had the resources to serve everyone. Cities like San Francisco, Chicago, and Washington, D.C., have large LGBTQ+ health centers, but the high cost of living keeps many people from settling there. Instead, many have chosen to move to New Mexico, which has prohibited restrictions on gender-affirming care, alongside states like Minnesota, Colorado, Vermont, and Washington.

But those new arrivals have found that trans-friendly laws don't necessarily equate to easy access. Instead, they find themselves added to ever-growing waitlists for care in a small state with a long-running physician shortage.

"With the influx of gender-refugees, wait times have increased to the point that my doctor and I have planned on bi-yearly exams," Felix Wallace, a 30-year-old trans man, said in an email.

When T. Michael Trimm started working at the Transgender Resource Center of New Mexico in late 2020, he said, the center fielded two or three calls a month from people thinking about moving to the state. "Since then, it has steadily increased to a pace of one or two a week," he said. "We've had folks from as far away as Florida and Kentucky and West Virginia." That's not to mention families in Texas "looking to commute here for care, which is a whole other can of worms, trying to access care that's legal here, but illegal where they live."

In its 2023 legislative session, New Mexico passed several laws protecting LGBTQ+ rights, including one that prohibits public bodies from restricting gender-affirming care.

"I feel really excited and proud to be here in New Mexico, where it's such a strong stance and such a strong refuge state," said Molly McClain, a family medicine physician and medical director of the Deseo clinic, which serves transgender youth at the University of New Mexico Hospital. "And I also don't think that that translates to having a lot more care available."

The U.S. Department of Health and Human Services has designated part or all of 32 of New Mexico's 33 counties as health professional shortage areas. A 2022 report found the state had lost 30% of its physicians in the previous four years. The state is on track to have the second-largest physician shortage in the country by 2030, and it already has the oldest physician workforce. The majority of providers offering gender-affirming care are near Albuquerque and Santa Fe, but 60% of the state's population live in rural regions.

Even in Albuquerque, waitlists to see any doctor are long, which can be difficult for patients desperate for care. McClain noted that the rates of self-harm and suicidal ideation can be very high for transgender people who are not yet able to fully express their identity.

That said, Trimm adds that "trans folks can be very resilient."

Some trans people have to wait many years to receive transition-related medical care, even "when they've known this all their lives," he said. Although waiting for care can be painful, he hopes a waitlist is easier to endure "than the idea that you maybe could never get the care."

New Mexico had already become a haven for patients seeking abortion care, which was criminalized in many surrounding states over the past two years. But McClain noted that providing gender-affirming care requires more long-term considerations, because patients will need to be seen regularly the rest of their lives. We're "working really hard to make sure that it is sustainable," she said.

As part of that work, McClain and others at the University of New Mexico, in partnership with the Transgender Resource Center, have started a gender-affirming care workshop to train providers statewide. They especially want to reach those in rural areas. The program began in June and has had about 90 participants at each of its biweekly sessions. McClain estimates about half have been from rural areas.

"It's long been my mantra that this is part of primary care," McClain said. As New Mexico has protected access to care, she's seen more primary care providers motivated to offer puberty blockers, hormone therapy, and other services to their trans patients. "The point really is to enable people to feel comfortable and confident providing gender care wherever they are."

There are still significant logistical challenges to providing gender-affirming care in New Mexico, said Anjali Taneja, a family medicine physician and executive director of Casa de Salud, an Albuquerque primary care clinic serving uninsured and Medicaid patients.

"There are companies that are outright refusing to provide [malpractice] insurance coverage for clinics doing gender-affirming care," she said. Casa de Salud has long offered gender-affirming care, but, Taneja said, it was only this year that the clinic found malpractice insurance that would allow it to treat trans youth.

Meanwhile, reproductive health organizations and providers are trying to open a clinic - one that will also offer gender-affirming care - in southern New Mexico, with $10 million from the state legislature. Planned Parenthood of the Rocky Mountains will be part of that effort, and, although the organization does not yet offer gender-affirming care in New Mexico, spokesperson Kayla Herring said, it plans to do so.

Machado said the vitriol and hatred directed at the trans community in recent years is frightening. But if anything good has come of it, it's the attention the uproar has brought to trans stories and health care "so that these conversations are happening, rather than it being something where you have to explain to your doctor," she said. "I feel very lucky that I was able to come here because I feel way safer here than I did in other places."


Cecilia Nowell wrote this story for KFF Health News.


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Three proposed ballot initiatives affecting transgender students are now in the signature-gathering stage in California. The group Protect Kids California said it is planning to combine them, to try to get one big measure on the ballot next fall.

One proposal would prevent transgender girls from competing on girls' sports teams in school.

Jonathan Zachreson, co-founder of Protect Kids California, said it is an issue of competitive fairness.

"It's not fair, where biological boys are able to enter into girls' sports, based off of the gender that they identify as," Zachreson contended. "Girls are losing scholarships; they're losing opportunities to play. And in some cases, they're being injured."

The proposal would also require schools to limit boys' restrooms to students born male; and girls' restrooms to students born female. LGBTQ+ groups have argued forcing a transgender child into a different restroom puts the student at risk of harassment or violence.

Another initiative would require schools to notify parents if a student presents as a different gender or requests a new name or pronoun. Earlier this year, the school board in Chino tried to pass a similar policy, but a judge declared it unconstitutional and blocked it.

Tony Hoang, executive director of Equality California, is concerned about the bill's repercussions.

"In an ideal world, all LGBTQ+ students would live in an affirming and supportive home," Hoang noted. "But unfortunately, we know that not all do, and in some circumstances, forcibly outing students can cause significant harm and potentially, violence."

A third proposal would ban medical providers from offering gender-affirming care to minors, including puberty-blocking medication, cross-sex hormonal treatment, mastectomies or genital surgery.

Amanda Goad, Audrey Irmas director of the LGBTQ Gender and Reproductive Justice Project at the ACLU of Southern California, noted such therapies are approved by the American Medical Association and the American Academy of Pediatrics.

"The proponents of these measures sometimes make them out to be efforts to protect kids," Goad pointed out. "That really offends me, given that care reduces trans youths' risks of suicide, and benefits their ability to live their lives and figure out who they are."

A ribbon-cutting ceremony is planned for next week as a South Dakota organization begins serving LGBTQ individuals at its new resource space.

The Transformation Project, a support network, just opened its Prism Center in Sioux Falls. It is being described as the first and only such location within the state.

Jack Fonder, community health worker for the nonprofit, said it will mainly serve two purposes: Those identifying as LGBTQ, as well as their families, can come in for guidance on various services; and activities such as game nights provide an avenue for people to gather and hang out.

"Just know that they're in the presence of other people that share their life experiences and then they're making those lifelong connections that they can keep," Fonder explained.

He pointed out feeling connected is important with another legislative session on the horizon. South Dakota is among the conservative-led states in recent years adopting policies deemed hostile toward the LGBTQ community. The center opened its doors last week and the formal welcoming ceremony is scheduled for Nov. 8.

Fonder acknowledged residents from far-flung parts of South Dakota still might find it difficult to visit the Prism Center. He hopes the Transformation Project can branch out in the future to reach more areas. But he added the new community space will still be important to a lot of people.

"It's a pretty big deal," Fonder contended. "The LGBTQ-plus community in the area, they don't really have a safe place to hang out other than maybe like a bar?"

Fonder explained other features will include support group meetings with an online option. And the Transformation Project will house its Marty's Closet operation at the new center, which provides free gender-affirming clothing.


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