Idaho defends protecting gender-confused children from harm

Idaho officials urged a court last Wednesday to allow them to enforce a recent state law aimed at protecting children with gender dysphoria.

Idaho Gov. Brad Little signed the Vulnerable Child Protection Act in April 2023. The measure supports children’s natural development by protecting them from puberty-blocking drugs and body-altering surgeries. Weeks later, two Idaho teens who identify as transgender sued state officials, claiming the law violates their constitutional rights and discriminates against youth who identify as transgender.

While the teens challenged only certain aspects of the law, a lower court in December 2023 blocked the whole law from going into effect while the case proceeded. This April, the U.S. Supreme Court set aside the court’s order and ruled that Idaho can enforce the law against everyone but the plaintiffs while the case is ongoing.

Now, the state is asking the 9th Circuit U.S. Court of Appeals to allow it to enforce the law against anyone in the state—including the plaintiffs. John Bursch, senior counsel at Alliance Defending Freedom, which represents Idaho, opened last week’s arguments by pointing to the irreversible harm the prohibited procedures can do to minors.

“Idaho and the rest of the country are facing an epidemic of teenage depression. Everyone is looking for solutions,” Bursch told the panel of three judges. “Some have turned to treatments that physically alter children’s bodies to match their perceptions of their sex. But these treatments are experimental and they carry heavy risks.”

Judge M. Margaret McKeown questioned Bursch on whether the law targets gender and sex in a problematic, discriminatory manner. Bursch pointed out that the law affects both genders equally.

On the opposing side, Chase Strangio, an attorney for the American Civil Liberties Union, told judges that the law violates the equal protection clause, which requires the government to apply laws equally. He contested that the law categorically bans a range of procedures for teens who do not identify as their biological sex and argued that parents should always have the right to direct the medical care of their children.

Judge Michael Daly Hawkins asked Strangio if his views would be the same if these medical treatments were for children 5 years old and younger. Strangio dodged the question and diverted to another point.

Bursch said that the law doesn’t ban procedures based on sex or gender identity in his rebuttal. Instead, it merely limits certain procedures and treatments.

Strangio’s defense implies that any law classifying medical treatments based on sex or gender could undergo strict court review, Bursch said. No court has ever required this.

The two sides are arguing for how strictly the court should evaluate whether the law violates the equal protection clause, Bursch said. Idaho reasoned that the court should rely on the normal standard of review and uphold the law if it has any rational basis, while Strangio petitioned for a stricter standard with heightened scrutiny.

“If rational basis applies here, then I think even the other side can see that Idaho’s law stands,” Bursch said.

State laws like Idaho’s are facing legal challenges across the country. Circuit courts are giving mixed rulings on regulations aimed at protecting children.

In February, the 7th U.S. Circuit Court of Appeals struck down a court ruling that blocked a similar Indiana law, enforcing the law for now while the underlying case is pending. A trial is expected to occur in April 2025.

The full 8th U.S. Circuit Court of Appeals is currently debating the legality of a comparable law in Arkansas. Previously, a three-judge panel of the 8th Circuit upheld a lower court’s decision to put a hold on the law while the case proceeds.

In June, the U.S. Supreme Court announced it would take up a case involving a law protecting children from transgender surgery, puberty blockers, and hormone therapy in Tennessee and Kentucky. The 6th U.S. Circuit Court of Appeals previously upheld the law.

The scientific evidence is overwhelming that transgender medical treatments for children are harmful, Bursch said. The risks of puberty blockers or gender-altering surgeries far outweigh any benefits, he added.

“If we know that85 percent to 90 percent of kids will naturally desist from this gender dysphoria if they were just left on their own … then it’s almost criminal to impose these kinds of radical experiment treatments on those kids,” Bursch said. “It’s vital that Idaho be allowed to protect its children.”