The Republican-controlled Tennessee Senate passed a bill Thursday that would make it a felony to help a transgender youth obtain gender-affirming care. Read broadly, the bill could apply even to those providing information about healthcare resources and laws in other states to youths in Tennessee. The bill borrows old language from anti-gay rhetoric of decades past around “recruiting” to further clamp down on information given to transgender youth about healthcare. It signals a new phase in the fight over transgender care in the United States, potentially having nationwide repercussions and pitting the state against others that have passed shield laws protecting patient healthcare from out of state investigations.
The bill is Senate Bill 2782. The language of the bill was amended before its passage Thursday, stating that any adult who "recruits, harbors, or transports" a minor in Tennessee for the purpose of gender-affirming care could be guilty of a Class C felony, which carries a prison sentence of three to 15 years. Read broadly, it could prohibit discussing healthcare options available in other states with transgender youths or providing maps of "safe states" for transgender healthcare to a transgender youth, though some legal experts say that this reading is constitutionally dubious and could violate first amendment protections.
The bill is not the first to target transgender people, although it is the first to specify that it applies over state lines. Some gender affirming care bans in the United States have also banned “aiding and abetting” gender affirming care, such as in Mississippi and Iowa. Those bans have sparked concern that even counselors, voice therapists, and LGBTQ+ organizations could be targeted for “aiding and abetting” transgender youth obtaining care.
The Tennessee bill was passed alongside an abortion bill that would make it illegal for adults to help minors obtain abortions without parental consent, also dubbed an "abortion trafficking" law. If passed, Tennessee would become only the second state to enact such a law after a similar one in Idaho was blocked in court. The Idaho law uses identical language, barring "recruiting, harboring, or transporting" a pregnant minor seeking an abortion. Together, these laws represent the latest in the cross-pollination between attacks on gender-affirming care and reproductive freedom that have become increasingly common in recent years.
This has in turn led to several states passing "safe state," "shield," or "sanctuary" laws for transgender people and those seeking or providing abortions or gender-affirming care. Currently, 15 states have enacted legislation or policies declaring themselves "sanctuary states" for gender-affirming care and reproductive healthcare. These shield laws assert that other states cannot subpoena healthcare legally provided within their borders, and that they maintain jurisdiction over their own territories. These shield laws have already made an impact; Texas Attorney General Ken Paxton recently attempted to subpoena medical records from Seattle Children’s Hospital, which informed him that it could not comply due to Washington’s shield law.
The fight over transgender rights is spilling into a battle over jurisdictional issues that have not been litigated in over a century and a half. In response to a recent proposal in Maine to pass a shield law, 16 Republican attorneys general signed a letter authored by the AG of Tennessee stating their intention to sue Maine if they pass a law that would bar complying with requests for patient healthcare information from across state lines. A similar letter, written by Indiana Attorney General Todd Rokita and signed by 18 Republican AGs, announced similar opposition to shielding abortion records. In response, the Maine Legislature passed LD227, making it the potential 16th state to enact such a shield law, despite legal threats from Republican states like Tennessee.
The Tennessee bill is slated for a subcommittee hearing on April 16th. If the bill passes, there could be a showdown between the state and other states that have acted to protect their transgender citizens and citizens seeking abortions. Likewise, there could be an enormous chilling effect on providing information about transgender healthcare to minors in the state.
This article originally appeared on Erin in the Morning.
