By Miriam Aroni Krinsky and Joyce White Vance / Special To The Washington Post
An Alabama law that went into effect last week allows medical professionals to be charged with a felony and sentenced to up to 10 years in prison for providing trans youth with gender-affirming health care; medical treatments that are often lifesaving and support people who are transitioning. While most of the law has since been temporarily blocked by a federal judge, the judiciary alone cannot be relied upon to protect the fundamental rights of LGBTQ+ people in the face of unrelenting attacks.
A second Alabama law forces students to use bathrooms that align with the gender on their birth certificates, while in Texas, Gov. Greg Abbott, Republican, has attempted to unilaterally declare that gender-affirming care constitutes child abuse. The Texas Supreme Court on Friday ruled that investigations of parents of trans children could continue, even if the governor did not have the authority to order them.
The country is grappling with multiple pressing, critical challenges, but you wouldn’t know it based on the staggering amount of time state lawmakers have devoted this last year to stigmatizing and potentially criminalizing transgender children and the people who care for them. According to the Human Rights Campaign, over 130 anti-trans statutes have been introduced by state legislators so far in 2022, among more than 300 anti-LGBTQ bills put forward. Eight states have already passed such laws this year.
While the laws target trans people, they hurt everyone. The legislators backing anti-trans efforts have created an illusory problem as a way to distract from the real issues facing their states. In 2020, Alabama had the fourth highest murder rate in the United States, and Texas had the 15th highest violent crime rate. These leaders inevitably try to scare their constituents into embracing failed tough-on-crime strategies by fearmongering about rising crime, but then they decide that limited public safety resources should be used to investigate and punish trans children and their families, as well as medical providers. They call their efforts “pro-family” but divert resources that would protect all families and instead put some children’s lives at risk as they attempt to separate them from responsible parents.
An increase in violence against transgender people has accompanied the recent escalation of anti-trans legislation. Last year, at least 57 trans people were killed in the U.S., the deadliest year ever for trans people in this country.
Gender-affirming treatments, which for young people can include hormone therapies and puberty-blockers — medications that prevent the body from releasing the sex hormones that cause the physical changes of puberty and have long been safely used by both trans and cisgender kids — can be lifesaving for children. But more than 58,000 transgender youth and young adults in 15 states are at risk of losing access because of these cruel and unnecessary state laws, which the American Medical Association described as “a dangerous intrusion into the practice of medicine.”
Fighting to restrict trans children’s access to gender-affirming care threatens the safety of all communities, not just trans people, because employing the criminal legal system as a weapon against the most vulnerable among us undermines the integrity of — and trust in — the entire justice system. When people do not have faith in the legal process, they are less likely to report crimes and cooperate with the police, making it more difficult for law enforcement to keep communities safe.
Every dollar spent on investigating and prosecuting private health-care decisions is one less dollar that can be spent solving serious crimes.
One of the most basic elements of a chief prosecutor’s job description is to apply judgment in deciding how to use limited resources. It’s something that every chief prosecutor in this country — whether pro-reform or tough-on-crime — does every day. Some state laws still criminalize blasphemy, adultery and profanity, but you would be hard-pressed to find a prosecutor willing to dedicate criminal justice resources to those cases. And as ministers of justice, prosecutors are ethically bound to not enforce laws that are at odds with constitutional protections.
The immense discretion provided to prosecutors can and must be used to stop these deeply troubling anti-trans laws. More than 75 elected prosecutors have already pledged to steer clear of them, and five district attorneys in Texas similarly spoke out against Abbott’s directive. But that’s a fraction of the 2,000 prosecutor’s offices nationwide. As long as states continue to enact hateful and misguided laws, local elected prosecutors — who take an oath to protect all in their communities — have no choice but to exercise their vast discretion and refuse to prosecute.
Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution and a former federal prosecutor. Joyce White Vance, a former U.S. attorney in Alabama, is a professor at the University of Alabama School of Law.