Again heralding California as a refuge from discriminatory policies in conservative states, Gov. Gavin Newsom signed a bill into law on Thursday that aims to protect transgender youths and their families from bans against gender-affirming care.
Senate Bill 107 by state Sen. Scott Wiener (D-San Francisco) provides for a range of safeguards meant to block out-of-state attempts to penalize families that come to California seeking medical treatment for transgender children and teens or move to the state to avoid consequences for already seeking that treatment elsewhere.
In a signing message, Newsom said that state laws attempting to ban medical care for transgender people younger than 18 “demonize” the community and are an act of hate.
“In California we believe in equality and acceptance. We believe that no one should be prosecuted or persecuted for getting the care they need — including gender-affirming care,” Newsom said. “Parents know what’s best for their kids, and they should be able to make decisions around the health of their children without fear. We must take a stand for parental choice.”
The new law prohibits California courts and attorneys from enforcing subpoenas requested by other states about gender-affirming care for minors, and healthcare providers from releasing medical information.
The bill also declares that any potential out-of-state arrest warrant for violating laws related to such care will be given “the lowest law enforcement priority.”
“While attacks on the transgender community are not new, we are experiencing alarmingly blatant attempts to use legislation, policy and political rhetoric to restrict or eliminate the autonomy, freedom and existence of transgender people across the country,” the advocacy group Equality California said in a statement of support for the bill.
The California bill comes after more than 20 Republican-led states have introduced legislation to outlaw gender-affirming medical care for young people, and to penalize parents and healthcare providers who allow it.
The actual enactment of policies to limit that care has largely been stalled as states face legal challenges at the federal level. In August, a federal appeals court in Arkansas ruled that the state can’t enforce its ban on transgender children receiving gender-affirming medical care.
But Wiener said California cannot bank on such blockages continuing.
“We don’t know what’s going to play out in appeal or if states will find other kinds of laws they can get through to courts,” Wiener said in an interview before the bill’s passage. “It would be absolutely negligence for us to say we’re not going to do anything until one of these laws gets upheld and someone gets put in prison.”
Whether SB 107 itself will be upheld in court is also in question because of federal requirements that states must recognize out-of-state laws when residents travel.
Last-minute amendments to the bill include a severability clause because “it is unclear whether this bill will run afoul of the Constitution,” according to a legislative analysis of the measure. Severability allows parts of a law to remain in effect even if other provisions are struck down.
Wiener acknowledged that uncertainty, and said that the bill was crafted carefully to avoid violations of the U.S. Constitution, but said that California should not act as “an arm of law enforcement of the states of Texas or Alabama.”
“We may have limits under the U.S. Constitution, but we are going to go right up to the edge of what we’re able to do to protect them and say, ‘Unless we are absolutely forced to send you back, we are not going to send you back,’” he said of potential families of transgender youth who may come to California.
California has also labeled itself a “sanctuary state” for those seeking abortions, which several states have banned following the U.S. Supreme Court’s decision to overturn Roe vs. Wade, the historic 1973 ruling that granted a legal right to the procedure.
As with California’s attempt to support out-of-state residents seeking abortions, the impact of SB 107 is hard to estimate because many people in other states don’t have the option or financial wherewithal to abruptly move to California.
“We can’t solve everything in one bill. We’re making sure that people who are being criminalized have a place to go,” Wiener said. “This bill is about giving people refuge.”
Gender-affirming care includes a range of “social, psychological, behavioral and medical interventions designed to support and affirm an individual’s gender identity,” according to the World Health Organization.
That can include hormones and puberty blockers, depending on a child’s age. The World Professional Assn. for Transgender Health recommends some surgeries for patients starting at 15 years old, according to new guidelines released in June.
Conservative groups opposed the bill. The California Family Council, which routinely opposes LGBTQ rights legislation, said that SB 107 encourages “medical child abuse.”
Sen. Brian Dahle (R-Bieber), who is running against Newsom for governor, said children “really don’t know what their identify is,” and said the legislation would insert the state into family custody battles.
“If one parent is for it and the other is against it, the state now will be in the middle of that decision,” Dahle said on the Senate floor before voting against the measure. “This bill is basically putting the state in your home.”
The bill’s supporters included Lt. Gov. Eleni Kounalakis, Atty. Gen. Rob Bonta, Planned Parenthood Affiliates of California and Equality California.
