Criminalizing Transgender Care

72 Pages Posted: 21 Mar 2024 Last revised: 16 Nov 2024

See all articles by Lewis A. Grossman

Lewis A. Grossman

American University - Washington College of Law

Date Written: March 19, 2024

Abstract

Since 2021, twenty-four states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they violate a fundamental right under the Due Process Clause of the Fourteenth Amendment-namely, the right to obtain standard-of-care treatment from a physician. It demonstrates that this right is deeply rooted in America's history and traditions by presenting the first-ever comprehensive review of state policies regarding off-label prescribing practices and showing that the states have virtually never interfered with physicians' prescribing decisions in this manner. Finally, in light of relevant judicial precedents, this article shows why courts should strike down these unparalleled, oppressive state laws as unconstitutional.

Keywords: Drugs, Transgender, Gender Dysphoria, Gender Affirmation, Food and Drug Administration, FDA, Substantive Due Process

Suggested Citation

Grossman, Lewis A., Criminalizing Transgender Care (March 19, 2024). Iowa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4765290 or http://dx.doi.org/10.2139/ssrn.4765290

Lewis A. Grossman (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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