How Texas Became the Right’s Anti-Trans Legal Laboratory
The DOJ could also encourage states to increase surveillance of gender-affirming care through tools like PDMPs, Oliva explained. This could create a chilling effect on health care providers, exacerbating their fears of legal or professional repercussions for offering essential care to transgender youth. In fact, states like Texas could exploit the PDMP system to track gender-affirming care prescriptions and share this data with other states and law enforcement. “I would be unsurprised if the Trump DOJ begins to provide incentive funding to states to enhance their surveillance of gender-affirming care prescription drugs,” Oliva said.
Ferguson’s approach could draw on tactics already employed by state attorneys general like Paxton in anti-trans campaigns, adapted for federal enforcement. For example, the FTC could target healthcare providers offering gender-affirming care, alleging deceptive practices related to the safety or efficacy of treatments. In fact, Ferguson’s pitch already uses this language, saying that providers who have “deceptively pushed” gender-affirming care or who have not “disclosed” anti-trans misinformation about such care could be targeted. By leveraging its authority in consumer protection and competition, the Trump Administration’s FTC could use Paxton’s anti-trans blueprint to amplify attacks on trans healthcare, potentially chilling access and advocacy nationwide under the guise of regulatory oversight.
However, there are steps that sanctuary states can take to make trans people safer. Because private health care information shared to a state’s PDMP database is no longer protected by HIPAA but regulated by state law, advocates stress that gender-affirming care sanctuary states should stop sharing prescription data related to hormone therapy with states that criminalize it. Such measures would limit the ability of anti-trans states to track, monitor, and potentially punish families seeking care for their children across state lines. “One thing that legislatures need to do now is remove themselves from the PDMP system and … not share who has been prescribed hormones, including testosterone, with other states,” said Chapman.
Advocates also stress that the need for stronger privacy protections at the federal level has never been more urgent. Although Congress is unlikely to pass new data protection laws to protect transgender people under the incoming administration, legal experts agree that state legislators have the power to create stronger shield laws that protect transgender health care.
