UK High Court rules ban on puberty blockers is lawful

A UK High Court ruled Monday that a ban on puberty blockers issued in May 2024 in the UK was lawful. TransAction, an organisation that advocates for transgender healthcare and legal protections, and an anonymous transgender young person, issued this legal challenge against the Secretary of State for Health and Social Care, alleging the ban was implemented through an unlawful process.

The claim failed on all three of its grounds, with the court concluding that the secondary legislation banning puberty blockers for under eighteens was in fact, lawful. Firstly, TransActual argued that the Health Secretary was not entitled to issue the ban through the emergency procedure as it did not satisfy the relevant test to do this. The court held that this test was satisfied, as it was “a matter for the judgment of the Ministers” in cases of “scientific uncertainty.” Secondly, TransActual alleged that the Health Secretary acted unlawfully in failing to consult organisations that worked with transgender individuals, such as themselves. Here, the court agreed with the Health Secretary that no such duty existed, and further held that even if such consultations had been conducted, it was “unlikely” they would “have made any difference.” Finally, TransActual argued that the ban breached the Article 8 rights of the anonymous transgender young person who was challenging the ban alongside TransActual. This claim, too, failed, and the overall decision to ban puberty blockers was held to be “rational.”

The ban was issued on May 29, 2024, under the previous Conservative government and just over a month before the newly elected Labour government came into power. It restricted the “prescription, sale or supply of [puberty blockers] for the purposes of puberty suppression to children and young people under 18 who are experiencing gender dysphoria.” The Health Secretary stated that the ban intended to protect “vulnerable children [who] were being placed on medical pathways which had substantial . . . risks and no or very limited clear benefits.” This impacted many young transgender individuals, including the transgender young person who participated in this legal challenge, as the ban meant she could no longer be prescribed puberty blockers from an overseas provider in England.

TransActual condemned the court’s decision to uphold the ban. They were particularly concerned by the Health Secretary’s reliance upon the “Cass Review,” when implementing this legislation. Reliance upon this review was also held to be lawful as the review “amounted to powerful scientific evidence in support of restriction on the supply of puberty blockers on the grounds that they were potentially harmful.” This review was conducted by Dr Hilary Cass, who concluded that puberty blockers should only be used under a research protocol. However, this review has been widely criticised by LGBTQ+ groups and medical experts such as the Yale School of Medicine. TransActual emphasised that the review “is the work of someone with no experience of trans healthcare,” which “excluded trans researchers from the review team, on grounds of potential bias, while including several clearly identified anti-trans academics.”

TransActual’s Director for Healthcare, Chay Brown, stated his concerns following the High Court ruling:

We are seriously concerned about the safety and welfare of young trans people in the UK. Over the last few years, they have come to view the UK medical establishment as paying lip service to their needs; and all too happy to weaponise their very existence in pursuit of a now discredited culture war.

TransActual urged NHS England and the Department of Health and Social Care to “take urgent steps” to reverse this perception of the transgender community and encouraged people to call on their local MPs to speak up about the ban. Regarding an appeal of the ruling, the organisation have asked the judge for leave to appeal the decision, and “will decide whether to do so subject to the advice [they] receive.”

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Germany lawmakers debate constitutional amendment for LGBTQ+ protections amid fierce opposition

The leader of the Christian Democratic Union (CDU) in the Bundestag, Thorsten Frei, told a local newsroom Monday that he opposes the implementation of a ban on discrimination based on sexual identity through a constitutional amendment. This statement is a reaction to the bill (Drucksache 19/13123) presented by the parliamentary groups FDP, Die Linke, and Bündnis 90/Die Grünen. The bill proposes to add sexual identity as a prohibited ground of discrimination to Article 3 of the Basic Law of the Federal Republic of Germany.

Currently, Article 3, paragraph 3 of Germany’s Basic Law prohibits discrimination based on sex, parentage, race, language, homeland and origin, faith, or religious or political opinions, as well as disability. Despite the absence of explicit protection for sexual identity, Frei maintains that the existing legal framework, including Article 3, the EU Charter of Fundamental Rights, and the General Equal Treatment Act, already provides sufficient safeguards against discrimination based on sexual orientation. He stressed that any modification to the “heart of the Basic Law” would necessitate exceptionally compelling reasons.

The Lesbian and Gay Association (LSVD) offers a more nuanced perspective on the issue. While acknowledging the positive impact of Federal Constitutional Court decisions and subsequent legislative actions on LGBTI lives, they emphasize that these advancements often resulted from protracted legal battles. The LSVD commends the gradual establishment of a constitutional interpretation that equates the protection of sexual identity with other explicitly mentioned grounds of discrimination. However, they caution that this jurisprudence may not provide enduring protection against potential future reinterpretations. This stance highlights the LSVD’s recognition of progress made while also expressing concern about the long-term stability of these protections without explicit constitutional recognition.

The proponents of bill 19/13123 further elaborate on this concern in their explanatory statement. They acknowledge the significant progress made in LGBTQ+ legal protections, citing anti-discrimination provisions in EU law and several German state constitutions. However, they argue that persistent societal prejudices, particularly against homosexuals, continue to manifest in legal and social discrimination. This assertion is supported by alarming statistics from the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which reported 1,422 anti-LGBTI hate crimes in Germany in 2022 alone.

Against this backdrop, recent events have amplified the call for stronger legal protections. During Christopher Street Day celebrations in Berlin, hundreds of thousands of demonstrators demanded enhanced rights for LGBTQI individuals. Notable among them was singer and LGBTQI rights advocate Herbert Grönemeyer, who urged for the amendment of Article 3 of the Basic Law to explicitly include protection against discrimination based on sexual identity and gender. While achieving the necessary two-thirds majority in both the Bundestag and Bundesrat for such a constitutional amendment remains challenging, recent legislative progress offers a glimmer of hope. In April, Germany’s parliament passed a landmark law allowing transgender and non-binary individuals to modify their legal documents through a self-identification process, replacing the outdated 1980 Transsexuals Law. This development signals a potential shift towards more inclusive and progressive legislation in the realm of LGBTQI rights.

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US federal court blocks sex discrimination protections for LGBTQ+ students

A US federal court Wednesday blocked the Department of Education’s Final Rule prohibiting sex discrimination against LGBTQ+ students from taking effect in six states.

The plaintiffs in the suit were Arkansas, Iowa, Missouri, Nebraska, North Dakota and South Dakota. The states sought to block revised regulations which expanded Title IX discrimination protection to LGBTQ+ students.  

Interpretation of the word “sex” in Title IX was the central issue. The law prohibits discriminatory treatment in schools on the “basis of sex.” The Department of Education interpreted this term to include sexual orientation based on a US Supreme Court ruling, Bostock v Clayton County. In that decision, the court held that the phrase “because of … sex” prohibited employers from making employment decisions based on an individual’s sexual orientation or gender identity. The court’s reasoning was that “when an employer discriminates against a person for being gay or transgender, the employer necessarily discriminates against that person for traits or actions it would not have questioned in members of a different sex.”

The plaintiff states argued against this broader interpretation. The US District Court for the Eastern District of Missouri agreed and found that the Department of Education inappropriately applied the Bostock interpretation of “sex” as Bostock was a workplace human rights case interpreting different civil rights legislation, Title VII. Judge Rodney Sippel held that the plaintiffs met their “preliminary burden of demonstrating that they have a fair chance of prevailing on their argument that the Department [of Education] exceeded its statutory authority and/or acted in contravention of the law in expanding the definition of sex-based harassment.”

Wednesday’s ruling is the latest in a series of recent federal court rulings that have blocked the regulation from taking effect. This lawsuit was one of eight launched by 26 states in response to the proposed Title IX protections. The Department of Education’s final rule is now temporarily blocked from taking effect in 21 states and being challenged in another five, according to Edweek. The new regulations were due to come into force on August 1, 2024.

Title IX of the Education Amendments of 1972 was landmark legislation that prohibited sex-based discrimination in schools or other education programs that received federal government funding.

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Ghana’s top court upholds law criminalizing gay sex

The six-decade-old law prohibits same-sex sexual acts, calling them “unnatural carnal knowledge.”

More: https://www.nbcnews.com/nbc-out/out-news/ghanas-top-court-upholds-law-criminalizing-gay-sex-rcna163620

Burkina Faso moves towards criminalising homosexuality

More: https://www.thepinknews.com/2024/07/16/burkina-faso-homosexuality-lgbtq-criminalise/

New Research: Legal protections for LGBTI people have increased around the world

Source: https://williamsinstitute.law.ucla.edu/publications/lgbt-acceptance-legal-inclusion/

ECtHR: TRANS WOMAN SHOULD HAVE BEEN ALLOWED ACCESS TO HORMONE THERAPY IN POLISH PRISON

On July 11, the European Court of Human Rights (ECHR) passed judgement in a case concerning the refusal by Polish authorities to allow a trans woman to continue hormone replacement therapy in prison, although she had already undergone such therapy for nearly one and a half years in two previous prisons.

The Court found that the authorities had failed to justify their refusal on any reasonable grounds, and did not provide sufficient explanations as to why the treatment might have been detrimental to the applicant’s health.

To the contrary, the Court pointed out that hormone replacement therapy had beneficial effects for the applicant’s physical and mental health and that the prescribing doctors had considered it necessary and urgent for the applicant to access such care. As such, the Court concluded that the Polish authorities had failed to strike a fair balance between the competing interests at stake, especially in light of the need to protect the applicant’s health as well as her interest in continuing hormone replacement therapy.

Transgender Europe (TGEU) intervened on this case. The judgement can be downloaded here. 

More: https://www.ilga-europe.org/news/trans-woman-should-have-been-allowed-access-to-hormone-therapy-in-prison-says-european-court/

USA: Michigan becomes 20th US state to ban regressive and homophobic ‘gay panic’ defence

Source: https://www.thepinknews.com/2024/07/24/michigan-becomes-20th-state-to-ban-gay-panic-defence-lgbtq/

USA: New Hampshire governor signs bill banning transgender girls from womens’ sports

New Hampshire Governor Chris Sununu signed legislation Friday that prohibits transgender girls from competing on school athletics teams that match their gender identity while also approving another bill that bans gender reassignment surgery for minors.

Sununu also vetoed a bill that would have permitted some businesses and government entities to restrict bathroom access to individuals on the basis of biological sex.

New Hampshire HB1205 requires schools to use a student’s biological sex at birth when determining eligibility for participation in youth sports. Schools would be required to use a birth certificate “issued at or near the time of the student’s birth.” Students who provide birth certificates that do not list the sex of the student would be required to provide other evidence of their biological sex at the time of birth at their own expense. The law leaves designated coed sports and activities untouched but creates a cause of action for students who have been “deprived of an athletic opportunity or suffer[ed]…direct or indirect harm as a result of a school knowingly violating [the bill].” The law applies to sports from grades 5-12.

The second bill, HB619, bans gender reassignment surgery for minors but leaves exceptions for reconstruction or removal surgeries to address “malformations, malignancy, injury, or physical disease” as well as male circumcisions.

The bill Sununu vetoed, HB 396, would have rolled back protections enacted in 2018 that specifically addressed discrimination based on biological sex. In the veto statement, Sununu wrote:

In 2018, Republicans and Democrats passed legislation to prevent discrimination because I said at the time, it is unacceptable and runs contrary to New Hampshire’s Live Free or Die Spirit. That rings true today. The challenge with HB396 is that in some cases it seeks to solve problems that have not presented themselves in New Hampshire, and in doing so invites unnecessary discord.

Civil rights organizations GLAD and the ACLU denounced HB1205 and HB619 as unconstitutional and vowed to fight the enactment of the bills.

Laws concerning transgender rights have varied widely throughout the US with Texas upholding a ban on gender-affirming care for minors while California recently passed a law that prohibits schools from informing parents if their children choose to change pronouns.

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