Trump’s Anti-Trans Order Clashes With New York Law

Private plaintiffs, public interest groups, and state attorneys general quickly filed lawsuits to invalidate Trump’s order. Federal judges have blocked the Trump administration from freezing any funding while the lawsuits play out.

Letitia James, New York’s attorney general, has a long history of battling Trump. Now, she’s committed to fighting his anti-trans agenda.

James warned hospitals that denying gender-affirming care to transgender people is against New York law, regardless of the availability of federal funding. The state’s Human Rights Law — amended during the first Trump administration after years of advocacy by LGBTQ+ New Yorkers — expressly prohibits discrimination on the basis of gender identity or sexual orientation in places of “public accommodation.”

Legal experts told New York Focus that even if the federal courts ultimately uphold Trump’s order, the Human Rights Law still requires that health care providers supply the same treatment to transgender people as they do cisgender people — including gender-affirming care. But while New York’s law is clear, advocates say, litigation is not a cure-all.

Metzgar said she’s optimistic that New York will remain a “sanctuary state” for transgender people.

“Letitia James will fight back,” said Metzgar. “That’s what we’re hanging our hats on.”

Gender-affirming care encompasses a variety of types of support — name and clothing changes, updating official documents, speech therapy, counseling, puberty blockers, and more. Medical interventions for transgender youth typically require the child’s assent, parental consent, and approval by a mental health professional. Surgery is vanishingly rare for transgender youth. A Harvard study found that fewer than 0.01 percent of transgender and gender-divergent youth undergo gender-affirming surgery.

Delaying or denying gender-affirming care can cause real harm to young people. Hormone therapy, for example, helps prevent permanent and distressing body changes. One study found that transgender and nonbinary youth who receive gender-affirming care are 73 percent less likely to have suicidal thoughts.

Cisgender people benefit from hormone therapy and puberty blockers, too — to manage menopause symptoms, for example, or to treat early puberty.

Denying care to transgender people while making it available to cisgender people is discrimination, Gorneberg said. “And as the attorney general points out, that’s illegal.”

Enacted in 1945, New York’s Human Rights Law guarantees everyone in the state “equal opportunity to enjoy a full and productive life.” The law prohibits discrimination in employment, housing, education, and places of “public accommodation” — including hospitals and clinics. The state attorney general can investigate discrimination complaints and enforce the law. People experiencing discrimination can also sue on their own behalf or file a complaint with the state’s Division of Human Rights.

“Being able to access the Division of Human Rights is really important,” said Susan Hazeldean, an associate dean at Brooklyn Law School — especially for people who don’t have a lawyer.

The Human Rights Law has long forbidden discrimination based on race, sex, religion, and national origin. In 2002, the state legislature expanded the law to cover sexual orientation — and in 2019, after a decades-long push by LGBTQ+ activists, to explicitly prohibit discrimination based on gender identity.

Despite Trump’s executive order, that protection still applies to New York-based providers of gender-affirming care.

Katie Eyer, an anti-discrimination law scholar and professor at Rutgers Law School, noted that New York has some of the strongest protections in the country for transgender people — and that Trump can’t unilaterally override them. “It’s right there,” she said. “There’s no debate.”

But even when the law is clear, legal advocacy has its limits.

Litigating even straightforward discrimination cases takes resources and forces victims to wait for relief. And despite New York law, Trump’s executive order may still have severe financial ramifications. Advocates are unsure how health care providers that comply with New York’s Human Rights Law would make up for lost federal funding.

“It is a very grave threat,” said Hazeldean. “Federal support for the provision of health care is vital.”

Eyer said it’s also unclear if insurance will continue to cover gender-affirming care for transgender people. Not all plans have to comply with New York’s anti-discrimination laws. Assemblymember Linda Rosenthal introduced a bill that would require Medicaid to cover the costs of gender-affirming care, even if Trump succeeds in cutting off federal funding.

Federal judges have blocked Trump from withholding funding from health care providers while lawsuits against the order proceed, indicating they believe the lawsuits will likely be successful. One judge wrote that Trump’s order “facially discriminates on the basis of transgender status” and “does not survive constitutional scrutiny.”

Ultimately, Trump’s order could reach the United States Supreme Court. It’s unclear how they would rule: Conservative justices hold a 6–3 majority on the court, but two of them have joined with liberal justices to hold that anti-trans discrimination is illegal, at least in the context of employment law.

Trump and his allies have threatened federal judges with impeachment if they rule against the president and stoked fears that the administration may openly defy court decisions.