Tennessee’s War on Trans People: Court OKs Ban on Gender-Affirming Care as AG Demands Medical Records
Written by GRB on 11/07/2023
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman. We turn now to Tennessee, where a panel of federal appeals court judges ruled 2 to 1 late Friday to allow a new state law banning gender-affirming care for transgender youth to take effect immediately. The anti-trans measure was previously blocked by a lower court following an ACLU lawsuit on behalf of three families and a doctor. The ruling marks the first time a federal court has allowed a ban on gender-affirming care to be enforced in the U.S. The decision came in response to an emergency appeal from Republican Tennessee Attorney General Jonathan Skrmetti, who called the ruling “a big win.” It ignores the guidance of major medical organizations. Similar legislation enacted by Republican-controlled legislatures in at least 20 states since 2021 has been blocked by federal courts in Arkansas, Alabama, Florida, Indiana and Kentucky.
For more, we go to New York to be joined by Chase Strangio, deputy director for trans justice with the ACLU LGBTQ & HIV Project. And in Nashville, Tennessee, we’re going to Holly McCall, editor-in-chief of the nonprofit news outlet Tennessee Lookout.
Chase, respond to this ruling.
CHASE STRANGIO: Hi, Amy. Thanks so much.
It is truly a devastating ruling. And it is, in some senses, feeling deliberately obtuse. The court had to distort legal precedent, the underlying factual record and, really, common sense in order to rule against the transgender adolescents, their parents and their doctors. There are large portions of this decision that have no citations because there’s no citations to be had.
And, of course, what this means practically is that this law, that goes against everything we know about gender-affirming care, that goes against the well-studied views of every major medical association, is now in effect. Families are terrified. And this is, of course, something that’s happening across the country. Thankfully, when judges actually look at the evidence, they have been blocking these laws. And we are going to, of course, continue to fight this decision on appeal.
AMY GOODMAN: Explain exactly what happened Friday night, how you learned of this and why this is so unusual. People might be saying there are anti-trans bills being passed across the country. What makes this so different?
CHASE STRANGIO: Yeah, so, what’s happening across the country is we have these bills that are being pushed and passed by Republican-led legislatures — of course, gerrymandered and voter-suppressed legislatures. And in this situation, you had a court, the district court, block the piece of legislation. The attorney general of Tennessee then filed for an emergency stay at the 6th Circuit Court of Appeals. This is sort of akin to what we see in the shadow docket at the Supreme Court, where you’re just getting these rushed opinions in the course of perhaps 24 hours or less, in some instances, putting this decision from the district court on pause while the case is proceeding. And, of course, this then allows the law to go into effect.
But the court isn’t close to the record. There were hundreds and hundreds of pages of expert declarations, plaintiff declarations filed in this case. And, in fact, the appeals court admits they may have got it wrong because it was rushed, which means, of course, they shouldn’t have done this in the first instance. This was not a comprehensive, briefed appeal. This was an abbreviated process wherein the court interjected itself and, again, in many cases, had no citations and admitted that it may have got it wrong. But the consequence of that is that hundreds of trans adolescents in Tennessee are now without the medical care that they need.
AMY GOODMAN: And talk about the medical organizations that are opposed to this.
CHASE STRANGIO: Yeah, every major medical association in the United States has opposed this type of legislation. And that includes the American Academy of Pediatrics, the American Medical Association, the Endocrine Society, the Pediatric Endocrine Society, the American Psychiatric Association. We’re talking every mainstream medical association in the United States is opposed to this legislation and believes and knows, from evidence and clinical experience, that this is going to cause very serious harms to transgender adolescents.
And, of course, the states are raising arguments in defense of these laws that make absolutely no sense when tested by courts that are actually looking at the evidence, arguments like the care has side effects, when we know that every medication has side effects. No intervention is perfect, but that doesn’t mean that we have states banning that form of care. And, of course, these are the same states and the same individuals that pushed for the permission to have ivermectin to treat COVID, when it had absolutely no evidence of efficacy, and are pushing against vaccines and masks in schools. And so, this is, of course, we know to be, a political argument in these states that are just categorically opposed to transgender people living full and thriving lives.
AMY GOODMAN: I want to bring in Holly McCall, editor-in-chief of the nonprofit news outlet Tennessee Lookout, which has been following this case, as well as Tennessee Attorney General’s Office demanding that Vanderbilt University Medical Center hand over medical records of patients at its clinic for gender-affirming care. Holly, can you talk about the significance of this, and the fact that Tennessee law grants the Attorney General’s Office authority to issue civil investigative demands? Explain what we’re talking about here. Patients’ information is being handed over to the attorney general?
HOLLY McCALL: Yes. And this attorney general is the definition of an activist. You know, we often hear Republican legislators who do not like judicial decisions talk about an activist judge or a judge who’s legislating from the bench. But I think, in reality, we have an attorney general who is an activist AG. He has spoken at anti-transgender events that were held in Nashville. He has not only requested the records of patients at Vanderbilt University Medical Center, which he claims is part of a Medicare — or, excuse me, Medicaid investigation of Medicaid fraud, but he has also asked for records of people who volunteered to be buddies to people going through gender-affirming care. He’s asking for this broad swath of documents that really would have nothing to do with Medicaid fraud.
AMY GOODMAN: And asking for emails sent to and from a public portal for questions about LGBTQ health?
HOLLY McCALL: That is correct. And I think it’s clear that, as Chase remarked, this is not just a Tennessee issue. This sort of activity is going on around the country. There is obviously an effort to target LGBTQ Americans. This attorney general, you know, he set up a special litigation unit just to take on issues like this, to address issues that could be addressed at the federal level. So, this is — I think this is extraordinary even for him. We have not seen this kind of, I think, a gross overreach into people’s personal lives.
I have an acquaintance whose daughter volunteers, has sent in a couple of emails. She is now worried that her records are going to be open to the state, worried about what might happen to her. Will she face persecution? She is not an LGBTQ American. She is a Tennesseean who wants to be supportive of her friends in the LGBT community. And now she feels that she is at risk.
AMY GOODMAN: And Vanderbilt notified patients over the Juneteenth weekend that their confidential medical records are now in the possession of the state attorney general? Your newspaper, Tennessee Lookout, you called Vanderbilt to ask them if, in fact, they are handing over these records?
HOLLY McCALL: Yes, we did. One of our reporters, Anita Wadhwani, has been tracking this very carefully. Vanderbilt has been a little cagey about what records they handed over. They are very — Vanderbilt is not the easiest institution to communicate with. And so, we still don’t know exactly what they have handed over and what they have not. After we published our original story on this, they did come back and say, “Well, we didn’t hand everything over that easily.” But we still don’t know exactly what they have handed over.
You know, Vanderbilt University Medical Center has been in the sights of the right wing for almost a year now. In September of last year, Matt Walsh, with the very right-wing outlet The Daily Wire, posted, you know, spliced videos online, heavily edited videos online, of Vanderbilt doctors talking about transgender and gender-affirming care. And in one clip, you had a physician who was saying — talking about the financial aspects of gender-affirming care. Well, that is kind of what started the whole ball rolling in Tennessee, because then the right took that to say, “Oh, Vanderbilt is just trying to make money. They are permitting genital surgery, a top surgery, to just about any minor who comes through the center.” Of course, that is not true. They are not doing any genital surgeries. But they have been on the hot seat for more than a year. And I think at this point they are in a cover-your-you-know-what mode.
AMY GOODMAN: You have the prominent trans activist Roberto Che Espinoza leaving Tennessee. You’re the editor-in-chief of a newspaper, Tennessee Lookout. How often is this happening? Are people, just as — as Roberto Che Espinoza said, “It’s not a way to live.”
HOLLY McCALL: You know, it’s no way to live. And he’s not the only transgender individual who is leaving the state. We have a story coming this week about families who are leaving the state of Tennessee, including a friend of mine who has a 15-year-old transgender child. And they do not feel safe to live in the state anymore. And I can’t say that I blame them. If you cannot access care, if you are under a microscope, if the Legislature and the attorney general has targeted your family, I think it’s clear that this is probably not a safe place to live.
AMY GOODMAN: And finally, let me go back to Chase Strangio. What rights do Vanderbilt Hospital, this prominent hospital not only in Tennessee but in the country, have to just say no to handing over that information to the state attorney general?
CHASE STRANGIO: I think, taking a step back, what’s important here is this is a playbook that we’ve seen over and over again. It looks exactly like the anti-abortion playbook from attorney generals that started to investigate medical providers, to threaten medical providers. And what we’re seeing here is we have even the state of Tennessee making arguments in court that they will go after doctors who provide care when a preliminary injunction is in place, even if it’s subsequently overturned. The threats on these doctors are astounding. And this looks a lot like the anti-abortion context. And we need to be vigilant here, because this has many forms. It is the legislation. It is the threats from attorney generals. And then, of course, it’s the extralegal threats of violence that are impacting our communities across the country. And this is obviously devastating for transgender people, our families and our doctors.
AMY GOODMAN: I want to thank you both for being with us. Chase Strangio is with the ACLU LGBTQ & HIV Project, deputy director for trans justice. And Holly McCall, editor-in-chief of the nonprofit news outlet, Tennessee Lookout.
Next up, we speak to Democratic state Senator Sarah McBride, who’s now running to be the first openly transgender member of Congress. She’s running from Delaware. Stay with us.