On Saturday, I published a blog post containing the text of Marjorie Taylor Greene’s bill for a ‘Protect Children’s Innocence Act’, whose chief stated purpose is ‘to prohibit gender affirming care on minors’.
MTG is known for her far-right Christian-nationalist views, but these have some traction in US politics right now, so it’s worth looking at this carefully.
It would be easy to dismiss the bill as falling so far outside the political norms that it couldn’t possibly be enacted. But then we (outside America especially) didn’t expect Roe v. Wade to be overturned. And we didn’t expect anti-abortion and anti-trans bills to start springing up all over the US. This draft legislation, though probably incompetent on a number of grounds (caveat: I am not a lawyer) isn’t something she’s just scribbled down in a bigotry-fuelled rage. No, it has the appearance at least of something that has been professionally and carefully drafted, and that in itself should set alarm bells ringing.
As an aside (probably very basic stuff for US folk!), US primary legislation is remarkably easy to navigate, as far as legal texts go! Delving into this bill for the appropriate references yesterday, I was pleasantly surprised to discover the existence of the United States Code, which codifies most (all?) federal legislation in one place. There is (as far as I know) nothing like that in Scotland or the wider UK.
I also discovered what Americans mean when they talk about ‘Title IX rights’ (which they have done a lot recently, as trans rights have been under attack since Barack Obama’s administration clarified its application to trans students). It’s a reference to Title IX (the ninth main section) of the Education Amendments of 1972, which were drafted to bring education law into line with employment law in regard to sex discrimination. They are codified in the first eight of the nine sections in chapter 38 (‘Discrimination based on sex or blindness’) of title 20 (‘Education’) of the United States Code. (All have had some amendments since 1972, and the ninth section was added just this March.)
Anyway, enough preliminaries. Let’s tear this bill apart! It has four titles (main sections), so I’ll divide my commentary in the same way:
- Title 1. Criminalising trans healthcare for under-18s
- Title 2. Banning federally funded trans healthcare
- Title 3. Banning otherwise affordable trans healthcare
- Title 4. Supplementary evils
- Conclusion. Trans genocide? (tl;dr)
Criminalising trans healthcare for under-18s (title 1)
The first title – surprisingly honestly called ‘Gender affirming care for minors prohibited’ – is the main thrust of MTG’s bill.
The title consists of instruction to add a new section (§ 2260B) to chapter 110 of title 18 of the United States Code. Title 18 deals with the whole gamut of criminal law, and chapter 110 encompasses legislation relating to ‘sexual exploitation and other abuse of children’. So it is immediately clear that the bill aims to place gender-affirming trans healthcare for under-18s in that category.
In case you are in any doubt about the sentencing that would be attached to such a ‘crime’, subsection (a) of the proposed new section tells us that it would be a ‘class C felony’ to engage in ‘gender affirming care on a minor’ under the circumstances described in subsection (e) (see Scope). Crimes in US law are divided into felonies and misdemeanours, with the former being more serious crimes. There are five classes of felony, with a class C felony being defined in § 3559 of title 18 of the United States Code as one bearing a maximum sentence of at least 10 but less than 25 years.
Subsection (b) of the proposed new section clarifies that a trans person under the age of 18 would not be guilty of any offence if they were the ‘victim’ of such a class C felony. So it’s not all bad. (Heavy sarcasm.) In fact, subsection (c) would open the door to the ‘victims’ of life-saving transition-related healthcare to sue for ‘compensatory and punitive damages’. MTG loves punishment.
Subsection (d) defines the terms ‘gender affirming care’ (for the purposes of the whole of chapter 110), ‘biological sex’ and ‘minor’ (the last, uncontroversially, being anyone under 18 years of age).
‘Biological sex’ (a well-known terfism) is defined somewhat sketchily as ‘indication of male or female sex by reproductive potential or capacity, sex chromosomes, naturally occurring sex hormones, gonads, or internal or external genitalia present at birth’. Yes, I really don’t want to say any more about that – this biological reductivism has been done to death.
The definition of ‘gender affirming care‘ includes quite a nice shopping list of healthcare options for those seeking to transition medically and/or surgically.
I suspect it’s seldom the case that any of the 16 named surgical procedures are available to trans under-18s in the US, and nor would I expect them to have access to facial feminisation or masculinisation surgery, or to breast or buttock augmentation surgery.
But the more serious problem is that the bill, if enacted, would criminalise use of puberty-blocking drugs to prevent a child suffering the ravages of going through the wrong puberty, and would also criminalise the use of exogenous hormones to enable a child to experience the right puberty at the same time as (or soon after) their peers.
Exceptions for intersex children
Of course, this isn’t really about avoiding child abuse at all, because the exceptions listed in subsection (d) allow for exactly the same kinds of hormonal and surgical treatments in the case of intersex children, with exactly the same intent, e.g. surgery ‘for the purpose of changing the body of such individual to correspond to a sex that differs from their biological sex’.
But intersex children are considered by the likes of MTG to have something wrong with them, and they must be modified to fit neatly into one of the two permissible ‘god-given’ boxes as soon as possible – regardless of consent.
Yes, intersex children are still routinely operated on as babies, to modify the external appearance of their genitalia so that it conforms to the requirements of the patriarchy. This actually is child abuse. I’m not talking about life-saving surgery that is sometimes required in the case of some intersex conditions. This exception wouldn’t be needed for those purposes, as subsection (f) would already cover those cases, as far as I can see.
Subsection (e) defines the circumstances under which provision of gender-affirming healthcare for under-18s would become a felony. As far as I understand things (and let me reiterate that I am not a lawyer, far less an American legal expert), this subsection is designed to give individual states some independence.
If a state were to continue to allow publicly funded gender-affirming healthcare for under-18s, that would (as far as I can tell) be permissible. But no aspect of that healthcare could be offered to people from other states, or from other countries, and no one in a state where gender-affirming healthcare is prohibited by law could legitimately seek any aspect of such healthcare from anyone outside the state.
So this bill, if enacted, would effectively allow states to criminalise the provision of any life-saving transition-related healthcare for under-18s, without allowing them any possibility of just going elsewhere. It is just as cruel as it needs to be, particularly as I suspect there are a lot of state legislatures queueing up to stop trans people existing.
Subsection (f) seems to clarify that the scope of the entire section that is proposed for addition to the criminal code only applies to healthcare intended to ‘[change] the body to a sex that differs from one’s biological sex’. (Ugh.) The surgeries and medical treatments are not considered abusive per se, but only in this context, which is not considered by MTG to be a ‘legitimate health issue’ – despite the fact that transition-related healthcare is a genuinely life-saving treatment for many trans children and adults.
Banning federally funded trans healthcare (title 2)
Ok, so title 1 is pretty bad for trans children and young people. It pretty much covers the primary objective of the despicable bill: ‘to prohibit gender affirming care on minors’. Titles 2–4 deal with the innocuous-sounding phrase, ‘and for other purposes’.
If this bill were just about preventing trans children and young people from receiving transition-related healthcare before they turn 18, on the grounds that they’re just minors and too young to consent to something so important (not that they have any choice about consenting to endogenous puberty, and not that intersex children are given the same cautious wait-till-your-18 approach) – if this bill were just about that, and if we didn’t already know that MTG was a Christian-nationalist extremist, then we might just assume that the bill came from a place of genuine concern for children’s safety and well-being.
But it’s not, and we do. The ‘other purposes’ dealt with by the rest of the bill are an attempt to eliminate trans adults too.
Title 2 of the bill consists of instruction to add a new nine-section chapter (chapter 4) to title 1 of the United States Code. You won’t be too surprised to hear that title 1, being the very first of the 54 titles in the United States Code, deals with ‘general provisions’, things like: ‘words importing the masculine gender include the feminine as well’ (ugh!); and ‘the words “insane” and “insane person” shall include every idiot, insane person, and person non compos mentis’ (yikes!); and ‘the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals’ (ah, so that’s where the corporations-are-people thing comes from!). (Those are all from the very first section.)
In other words, title 1 of the code is a formal introduction to the rest of the code, and the language to be used. The three chapters are ‘rules of construction’, ‘acts and resolutions; formalities of enactment; repeals; sealing of instruments’, and ‘code of laws of United States and supplements; District of Columbia code and supplements’. All pretty dry, generic stuff, on the whole. That’s what makes me, as a lay person, feel that this particular part of MTG’s bill may be incompetent.
The proposed new fourth chapter of title 1 is titled ‘Prohibiting taxpayer-funded gender affirming care’. Doesn’t quite fit, does it!
The first three sections (§§ 301–303) are intended to limit the funds that can be used to pay for transition-related healthcare. Any such healthcare even tenuously linked to federal funds would be prohibited.
The next two sections (§§ 304–305) clarify just when non-federally-funded transition-related healthcare would be permissible. In particular, it limits states’ abilities to use their contribution of Medicaid matching funds to pay for such healthcare.
The remaining sections would allow for treatment in relation to complications arising from (legitimate or illegitimate) gender-affirming care, treatment of intersex people (gotta make them fit those boxes!), and treatment using the same procedures described earlier where these are not in relation to transition.
Banning otherwise affordable trans healthcare (title 3)
Title 3 of MTG’s bill instructs changes to be made to sections of the Internal Revenue Code (title 26 of the United States Code). This is in relation to health insurance policies and tax-deductible expenses. (But I don’t pretend to fully understand how the whole American health-not-really-care system works.)
The first would amend section 36B (‘Refundable credit for coverage under a qualified health plan’). It would change the definition of the term qualified health plan to read as follows (with the addition in red):
‘The term “qualified health plan” has the meaning given such term by section 1301(a) of the Patient Protection and Affordable Care Act, except that such term shall not include a qualified health plan which is a catastrophic plan described in section 1302(e) of such Act or any health plan that includes coverage for gender affirming care (other than any gender affirming care or treatment described in section 306 or 307 of title 1, United States Code).’
The intention of this change is fairly plain, I think. A ‘catastrophic plan’ isn’t as much fun as it sounds, but appears to be one that doesn’t provide a certain minimum (‘bronze’) level of cover. So the inclusion of transition-related healthcare would, if I understand correctly, effectively disqualify such a healthcare plan from being offset against income tax, so that such healthcare plans would be unlikely to offered. Separate healthcare plans for transition-related healthcare alone could, however, be offered under the terms of the bill.
‘Any term used in this section which is also used in the Public Health Service Act or subtitle A of title I of the Patient Protection and Affordable Care Act shall have the meaning given such term by such Act or subtitle.’
This would be amended by making this hold ‘in general’, but adding a caveat that it would exclude ‘health plans including coverage for gender affirming care’, along the same lines as the first change in this title of the bill.
This title also includes a proposed change to section 18054 of title 42 of the United States Code (‘Multi-State plans’). Subsection (a) (‘Oversight by the Office of Personnel Management’) would have a paragraph added to prevent transition-related healthcare slipping through the gaps. (The paragraph is numbered (7) in MTG’s bill, but there appears to be an existing paragraph (7) in that section of the code, so I’m a little confused. This is also cited as ‘Section 1334(a) of Public Law 111–148 [link to PDF]’, but there is no § 1334 in that document.)
Supplementary evils (title 4)
The first section of this title instructs amendments to chapter 28 of title 20 of the United States Code (‘Higher education resources and student assistance’).
First, it would amend section 1094 (‘Program participation agreements’) by adding a paragraph to the end of subsection (a) (‘Required for programs of assistance; contents’), to ensure that ‘The institution will not offer instruction in gender-affirming care’. This would basically prevent any medical school or other higher-education institution that receives federal funding, or whose students receive federal student loans etc., from including transition-related healthcare in its syllabus.
Second, it would amend section 1099b (‘Recognition of accrediting agency or association’) by adding a paragraph at the end of subsection (a) (‘Criteria required’), extending the criteria used by the Secretary of Education to determine whether a body is fit to evaluate the quality of educational programmes. It would ensure that only an agency or association that ‘does not accredit any institution that offers instruction in gender-affirming care’ would be considered competent as an accrediting body.
Immigration and deportation
The second section of this title instructs amendments to chapter 12 of title 8 of the United States Code (‘Immigration and nationality’).
It would extend the scope of the definition of ‘gender affirming care’ to this chapter by the addition of a new paragraph at the end of section 1101(a).
It would amend section 1182 (‘Inadmissible aliens’) so that any non-citizen/national ‘who is determined to have performed gender affirming care on a child that has not attained the age of 18 years old’ would be barred from entry to the United States.
And it would amend section 1227 (‘Deportable aliens’) so that the same people who are already in the United States would be deportable.
Trans genocide? (tl;dr)
I really don’t think it’s much of stretch to say that this bill is essentially a recipe for trans genocide in the United States. Whether or not it gains the support of enough people in Congress, this bill will already be terrorising trans people in the US and those who care about them. Fear is an emotion that the Marjorie Taylor Greenes of this world love to instil in those they irrationally hate. And for some fascists, neo-nazis and other assorted gun-toting, far-right zealots in the US, this bill alone will be enough to tip them over the edge into worse and worse hate crimes against trans people. Stochastic terrorism. Our siblings in the US aren’t living in a good timeline.
What this bill would accomplish, were it to be enacted, would be to force trans children to suffer an unwanted puberty, by considering anyone who would seek to alleviate their discomfort as a criminal on a par with murderers (unless permitted by a state – but only for trans children within that state). It would effectively prevent most trans adults who have survived such a puberty from gaining access to transition-related healthcare, by closing off all moderately affordable routes to this. Furthermore, most educational institutions would be barred from teaching anything relating to trans healthcare. And healthcare practitioners from other countries who have at any time worked in this area would be excluded from the United States.
Sounds like genocide to me.