Challenging Louisiana’s Gender Affirming Care Ban

Both at and outside of school, transgender young people often face isolation, bullying and discrimination along with rejection from activities and social spaces. Some also suffer from gender dysphoria, which is defined as clinically significant discomfort or distress arising from misalignment between one’s gender identity and their sex assigned at birth or sex-related physical characteristics. Targeting transgender youth, a wave of states – there are currently 25 – have passed prohibitions on various types of evidence-based, medically-recommended gender-affirming care.

Major national medical and scientific associations including the American Medical Association, the American Academy of Pediatrics and the Pediatric Endocrine Society all recognize gender dysphoria and have set out treatment guidelines that include the same types of gender-affirming care being outlawed nationwide. In 2021, in the early stages of the movement to ban gender-affirming medical care for transgender youth, the American Medical Association urged governors to oppose state legislation of this nature, American Medical Association urged governors to oppose state legislation of this nature, calling it “a dangerous intrusion into the practice of medicine.”

Despite vocal and repeated objections from medical providers, parents and transgender youth, in July 2023, Louisiana’s legislature overturned then-Governor John Bel Edwards’ veto of the Gender Affirming Care Ban (HB648), making Louisiana one more state to ban care.

The Ban, which went into effect on January 1, 2024, prohibits physicians from providing certain types of gender-affirming medical care, including hormone therapies and puberty blockers, when that care is provided to “validate a minor’s perception of his sex if the minor’s perception of self is inconsistent with his biological sex.” Patients already receiving treatment must transition off care before the end of the one-year titration period, concluding December 31, 2024. These same treatments are prescribed – and can still be prescribed – to youth in Louisiana for reasons other than gender dysphoria, such as the treatment of early-onset puberty. Under the Ban, healthcare professionals who continue to provide genderaffirming care to their minor patients in violation of the Ban face mandatory disciplinary action, including the revocation of their professional licenses, by their occupational or licensing boards. Some qualified healthcare providers have already started to leave the state in response.

This past January, Davis Polk joined Lambda Legal and the Harvard Law School Center for Health Law and Policy Innovation (CHLPI) in representing five transgender clients ages 10 to 17 and their parents in a lawsuit against the Louisiana Board of Medical Examiners and Attorney General Elizabeth Murrill. The lawsuit, Soe v. Louisiana State Board of Medical Examiners, argues that Louisiana’s ban violates the Constitution of the State of Louisiana by discriminating on the basis of sex in violation of rights to equal protection and dignity while also interfering with the parent plaintiffs’ parental autonomy and rights to direct their children’s medical care.

The minor plaintiffs have all been diagnosed with gender dysphoria, and, with the support of their parents and healthcare providers, have begun to take steps to live in accordance with their gender. This includes changes to their appearance, and, for some plaintiffs where medically-indicated, pubertyblockers or hormone therapy. Our clients reported significant benefits from treatment, including feeling “more themselves,” “more confident” and “less anxious.” As the end of 2024 nears, some of our clients have been told by their physicians, who are concerned about enforcement of the Ban and effect on their licensure, that they should no longer expect treatment at all.

Without means or support to travel long distances with frequency to a state that does allow gender-affirming treatment (currently, the closest states without bans are New Mexico, Kansas and Illinois), many transgender youth in Louisiana will soon be completely cut off from much needed care.

In April, the defendants – the State Attorney General and the Louisiana State Board of Medical Examiners – moved to hear the case in East Baton Rouge Parish instead of New Orleans in Orleans Parish, where our clients receive treatment, and where both their medical providers and the Board of Medical Examiners are based. Civil Litigation associate Deborah Mazer argued and won a decision from the bench to keep the case in Orleans Parish. This bench decision was subsequently appealed by the defendants to the Louisiana Fourth Circuit Court of Appeal.

Some members of the Davis Polk team, White Collar Defense & Investigations counsel Gabe Jaime-Bettan and Litigation associates Anna Fish and Leah Samuel, accompanied Deborah to Louisiana for the hearing and to meet with the clients in person for the first time following many virtual meetings. Through a gathering the Davis Polk team and co-counsel organized at a Mexican restaurant, the clients were also able to meet one another for the first time. 

“The team had this wonderful idea of creating bingo cards that had different factoids about people, and we played a game where we all had to walk around the room, mingle and find people who met those criteria – things like ‘I’m an only child’ or ‘I can name every Taylor Swift album.’ We were all looking for the Swifties in the group,” Gabe shared. “The kids were so into it.”