SCOTUS Undermined Trans Rights: How Do We Protect Them in NY

In its recent decision in the case, United States v. Skrmetti, the U.S. Supreme Court ruled that a Tennessee law banning gender-affirming medical care does not violate the Constitution and can remain in effect. The decision is a devastating loss for trans rights and risks emboldening other states to advance similar bans.

The decision comes as the Trump administration and its allies in hostile state governments have made clear they aim to exclude transgender people from public life and eliminate access to abortion across the country.

On this episode, we talk with Chase Strangio, the ACLU lawyer who argued against the Tennessee law in the Skrmetti case. He’ll explain the flawed logic behind the conservative majority’s decision, what it means and what its nationwide implications are.

Then we chat with two NYCLU experts who will explain what the decision means for New Yorkers and what Gov. Hochul can do to shore up access to gender-affirming and abortion care in our state.

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Resources

Tell Gov. Hochul to sign the bills we discuss on this episode

ACLU response to Skrmetti decision

NYCLU response

Transcript

Simon: [00:00:00] In its recent decision in the case United States versus Skrmetti, the US Supreme Court ruled that a Tennessee law banning gender affirming medical care does not violate the constitution and can remain in effect. The decision is a devastating loss for trans rights and risks emboldening other states to advance similar bans. The decision comes as the Trump administration and its allies in hostile state governments have made clear they aim to exclude transgender people from public life and eliminate access to abortion across the country. On this episode, we’ll talk with Chase Strangio, the ACLU lawyer who argued against the Tennessee law in the Skrmetti case. He’ll explain the flawed logic behind the conservative majority’s decision, what it means, and what its nationwide implications are. Then we’ll talk to two NYCLU experts who will explain what the decision means for New Yorkers and what Governor Hochul can do to shore up access to gender affirming and abortion care in our [00:01:00] state. Before we get started, I’d like to ask you to please download, rate, review, and subscribe to Rights This Way. It will help more people find this podcast.

Welcome to Rights This Way, a podcast from the New York Civil Liberties Union, the ACLU of New York State. I’m Simon McCormack, senior staff writer at the NYCLU, and your host for this podcast, which is focused on the civil rights and liberties issues that impact New Yorkers most. And now I’m joined by Chase Strangio. Chase is the co-director of the ACLU’s LGBT and HIV project. He argued the case United States versus Skrmetti before the Supreme Court, and he made history as the first openly trans attorney to argue in front of the high court. Chase, it’s an honor to have you on Rights This Way.

Chase: Hi Simon. Thanks for having me. I’m happy to be here.

Simon: If you could [00:02:00] please tell us about the case, United States versus Skrmetti, and what the ACLU argued in front of the Supreme Court.

Chase: Sure. So just to take a step back, what we were facing in the United States was a series of state laws that banned medical care only for trans adolescents. And between 2021 and 2025, we went from no states in the country banning this medical care to half the states in the country banning this medical care. And when Tennessee passed what was called SB1, which is a law that says that doctors in Tennessee can prescribe hormone therapy if it is consistent with an individual sex but not if it was inconsistent with an individual sex. The ACLU, along with the ACLU of Tennessee, our colleagues at Lambda Legal, and the law firm of Aiken Gump filed a lawsuit challenging that law [00:03:00] under the US Constitution arguing that it violated the equal protection rights of trans adolescents, as well as the due process rights of their parents to direct the medical care of their minor children. We won at the lower court. The district court looked at all the evidence and said this is a law that discriminates based on sex. It discriminates based on trans status, and the state has not carried its burden under the requisite standard of explaining why banning this medical care only for a subset of people, when it is inconsistent with their sex, in any way advances any government interest. So that was a win. We won every case actually at the lower courts in that period between 2021 and 2023. And then in this case, what was filed as LW versus Skrmetti, we represented three adolescents and their parents and a doctor in Tennessee. We had the appeals court reverse that lower court decision and unfortunately, that [00:04:00] decision from the Sixth Circuit Court of Appeals drastically changed the landscape with respect to medical care for trans people across the country. Not only did it reverse our win, thereby allowing Tennessee’s law to go into effect, it sort of set off a chain reaction. And we started to see all of these laws going into effect across the country. And trans people and their families were displaced from their homes because they had to go find healthcare elsewhere. And in that crisis, we at the ACLU and Lambda, along with the United States during the Biden administration, along with National Center for Lesbian Rights, which had been representing trans adolescents in Tennessee, all filed for review at the Supreme Court. The Supreme Court took only the United States’ petition, which is why it was then called United States versus Skrmetti, and the only question before the Supreme Court was whether Tennessee’s law violated the equal protection clause. The due process claim on behalf of the parents was not before the court. And we argued in what, you know, we thought of as a relatively straightforward [00:05:00] legal argument that the lower court got it wrong by saying that this law did not discriminate against trans people or based on sex because it, on its face, said you can’t do something, receive medical care, if you have one sex at birth but not a different sex at birth. So if you have a birth sex of male, you can receive testosterone to undergo a typical male puberty. If you have a birth sex of female, you can’t. That’s sex discrimination and the court should reverse the lower court. That was our argument. Unfortunately, the Supreme Court rejected it and therefore let Tennessee continue to enforce this law that is causing grave harms to trans people across Tennessee, but also comparable laws causing grave harms across the country.

Simon: And, can you explain how the conservative majority in the case reached their conclusion?

Chase: Yeah. I mean, I think they reached their conclusion by doing what Justice Sotomayor said in dissent, which is distorting logic and precedent. For 50 years, the Supreme Court [00:06:00] has held that all sex discrimination is subject to what’s called heightened scrutiny. And that is an equal protection standard that requires the government to show their work, to say yes we drew this line, we made these distinctions, but we have a good reason for doing so. And in this case, the court said well, this isn’t really sex discrimination. It’s age discrimination and discrimination based on medical condition, but those types of discrimination are fine. We defer to the legislature. They must have had a good reason for doing this. The problem with that is we would agree it’s age discrimination in the sense that minors can’t do something adults can and it is medical diagnosis discrimination. You can do it for one diagnosis but not another. But that doesn’t change the fact that it’s also discrimination based on sex. And the court has historically recognized that you can be discriminating based on both age and sex. In a seminal case, the Supreme Court found sex [00:07:00] discrimination when a law treated young men and young women differently with respect to the sale of alcohol. Not all men and women were treated differently. It was entirely age limited, but it was also sex based. And so the court really neglected its own precedent and as the dissent pointed out, this is a statute that references sex over and over. And it doesn’t just reference sex in terms of benign acknowledgement that sex exists. It references sex in order to draw distinctions based on it. It says you can do something if you have a sex of male and not if you have a sex of female. That is sex discrimination. So really this is a decision that I think on its face is quite disingenuous. It is very outcome driven. And I think the other thing to point out is that it relies quite heavily on an old case called Geduldig v. Aiello, in which the Supreme Court said that pregnancy discrimination is not a form of sex discrimination. And that case [00:08:00] was one in which Justice Ginsburg and many other justices thought was so incoherent that it was rarely ever cited by the Supreme Court. And some people suggested that it was no longer good law. The problem is Justice Alito and his majority opinion in Dobbs overturning Roe v. Wade really reanimated the logic of Geduldig and trying to start to roll back sex discrimination protections for everyone. And so not only does this majority decision distort precedent, it also invigorates some of the worst precedent that we had hoped was basically abrogated by later decisions, but we’re now forced to contend with.

Simon: And you’ve talked about some of the broader implications of this decision. But it is, and we certainly don’t want to understate how important and devastating the ruling is, but it is limited in important ways, right? Can you talk about what the ruling does and does not mean for people in the [00:09:00] US?

Chase: Yeah, I mean, I think I wanna just start with the fact that a lot of the reporting has said that Skrmetti is the end of constitutional protections for trans people. And it just isn’t true. It’s not true in the sense that trans people still enjoy constitutional protections to the extent we continue to have them. Due process rights, Fourth amendment rights, all of those protections extend to trans people in theory, as they extend to everyone in theory. I say in theory because we’re obviously in a moment of time when, it’s not just trans people’s constitutional rights under attack. It’s all of our constitutional rights under attack. But this is not the end of protections for trans people as trans people either.

The court was very clear that they were not ruling on some things that the lower court ruled on, for example. So the Sixth Circuit had said that this is a law that discriminates based on transgender status, but that transgender status is not itself a suspect classification, meaning that discrimination based on trans status is more like discrimination [00:10:00] based on age than like discrimination based on sex, and we’re gonna defer to legislatures and sort of let them do what they want.

The Supreme Court did not reach that question. The Supreme Court specifically left for another day the question of whether or not transgender status is one of those suspect classifications, like race and sex, that is required by the judiciary to have more scrutiny when the legislatures and the government draws distinctions on that basis.

So that is not in this decision. We live to fight another day on that critically important question. The court also did not do what the government of Tennessee wanted it to do, which was to rule that its prior 2020 decision in Bostock versus Clayton County, Georgia was limited to Title VII. Bostock is a decision, also in a case litigated by the ACLU, that held that when you are fired for being LGBT, that is a form of prohibited sex discrimination under Title VII of the Civil Rights [00:11:00] Act. And one question that Bostock left open is does the logic of the court’s decision in that case extend to other contexts, other statutory context, for example, like Title IX that prohibits sex discrimination in education?

Does it extend to the Constitution? The lower court, the sixth Circuit had said, no, Bostock is limited to Title VII. The Supreme Court did not say that. The Supreme Court said that in this case, when we’re dealing with a constitutional claim with respect to medical care, Bostock’s logic does not apply. I still think that particular holding was incoherent, but it was limited both to the Constitution and to the Constitution with respect to medical care. So it is much narrower than it might have otherwise been, which means the logic of Bostock may well extend to other statutory prohibitions on sex discrimination as in the Affordable Care Act and the Fair Housing Act and in Title ix of the Education Amendments, which prohibits sex discrimination in education. Now, [00:12:00] there are lower court decisions that apply Bostock more broadly. And so those are undisturbed, which means we still have some of these protections quite robustly protected under lower court precedent, and that was undisturbed by the Supreme Court’s decision in Skrmetti. So those are some of the ways where it’s much narrower than it could have been. But of course, you know, that’s cold comfort for the trans people who have lost their healthcare, who want relief from these draconian state laws that displace the judgment of themselves, their parents and their doctors. And so yes, we live to fight another day. We live to fight on in all these other ways and all these other contexts, but the court got it absolutely wrong in devastating ways for the trans adolescents who need the medical care that their state governments have stripped away from them.

Simon: And Chase, let’s talk about the importance of that care and what that care looks like, if you don’t mind. Talk about what is at the core of what this law bans.

Chase: Yeah. So the, only issues before the Supreme Court were about two [00:13:00] forms of hormone treatment, puberty blockers and hormone therapy like estrogen and testosterone. And these are medications that are used across the lifespan to treat a range of conditions. One endocrinologist that I worked with at one point was saying to me that actually hormone treatment is so ubiquitous that the majority of people in our lifetime will rely on it at some point. Whether it’s, you know, as we get older and we need hormone replacement when we’re older, whether it’s in adolescence because our bodies are not producing hormones in a way that we might need to jumpstart puberty, or whether it’s to treat gender dysphoria, which is the serious condition that causes distress for transgender people who have, by definition, a misalignment between our gender identity and our sex assigned at birth. So these are common medications. They are used by endocrinologists and general practitioners all the time.

And in the context of treating trans adolescents, these are medications that have been used for decades and have been [00:14:00] studied by research, research scientists as well as clinicians. And what they do are two different things. The pubertal suppressants pause puberty after it begins at the stage it is when the medication starts. So if you’re, let’s say a trans girl. And you started at living and identifying as a girl when you were two years old and your parents are trying to figure out what’s going on. And as you get, you know, older and older, it’s clear that you have an identity as a girl. You are persistent and consistent. You’ve lived as a girl, let’s say for 10 years. You’re 12 years old, and all of a sudden your body is starting to produce testosterone and forcing onto this person, who may only be known as a girl to her peers, typical male characteristics. That can cause very significant distress and this medication is designed to just put a pause on that so that the young person can continue to assess their identity and not go through distressing physical changes of puberty that may be [00:15:00] impossible to reverse later in life. And then later as the young person gets older, hormone therapy, if it is deemed necessary, would allow that trans girl, for example, to undergo a typical female puberty. If the girl said, actually, you know what, I thought I had a female gender identity. I actually don’t. Now that I’ve paused puberty and I want to undergo a typical male puberty. The blocker is stopped. Puberty begins. There’s no longer term effects. And those are the medications that we’re dealing with. They are in the United States only prescribed with parental consent. They’re only prescribed after a mental health evaluation to determine whether a diagnosis of gender dysphoria is appropriate. And they have been shown to be extraordinarily effective at minimizing the severe and debilitating distress of gender dysphoria. And that’s what’s at issue here in these cases. That’s what is at issue with these laws. And these are really thoughtful, careful decisions that [00:16:00] parents, kids, and doctors make together.

Simon: And it can be lifesaving care, right?

Chase: Yeah, I mean, it can be lifesaving care in multiple ways. I mean, we have data that shows that the provision of this care reduces depression, anxiety, and suicidality. All of those things are indicators of potential completed suicide. And all of those things are a measure of one’s quality of life. And so one way in which people push back on this lifesaving rhetoric is sort of the, not rhetoric reality. One of the ways people push back on the reality that this is lifesaving is to say, well, you can’t prove that you would’ve died by suicide without it. And I think, well, we can prove that we would’ve had increased suicidality, which I think is a pretty clear indicator. But also what is it that we’re asking people to do with their lives. Do we want people to feel that they are so inhibited that they can’t go outside, that they can’t engage with their friends, that they can’t actualize their potential? And one thing I often say is [00:17:00] the life that I have now as a father, as a lawyer, as a friend, as someone who’s able to go out and experience the world in so many beautiful ways, would not be possible without that care. So in that sense, it saved my life. It gave me this life and that is so, so critically important and I really wanna push back on the idea that you need to prove that, you know, in a study, that there would be more completed suicides versus less completed suicides, because that’s not our only measure of life or death. That is not the only way we think of our lives and we shouldn’t be reduced to that.

Simon: Yeah, I think that’s a critically important point. Thank you. So we’ll be talking in a bit on this episode more specifically about New York and particular implications of this ruling in New York. But I’m curious if you have any thoughts on what New Yorkers in specific should take away from this ruling.

Chase: Yeah, I mean, I think first and foremost, there is nothing about this [00:18:00] ruling that changes anything about the availability of care in New York or any other state that does not currently have a ban on medical care for trans adolescents. New York does not. And so this ruling does not change that in any material way, and I think people need to know that and feel comforted by it and continue to push back on any misinformation about that. So that’s number one. I think number two is that we are living in a time when the threat to trans people and to our healthcare is not just coming from state legislatures, it’s also coming from the federal government. And we know that the Trump administration has attempted to coerce hospitals across the country, including in New York, to cut off care for adolescents and everyone under 19, gender affirming care specifically. That part of one of the president’s executive orders is currently blocked in court and has been for many months. It remains blocked in court and we at the ACLU, along with our co-counsel are continuing to fight that [00:19:00] effort by the administration and will fight to protect the availability of care across the country for adolescents, but for adults as well. And so New Yorkers can continue to access care as they had been and should fight back against any efforts by their providers to suggest that it’s not available as a result of the court’s decision in Skrmetti or anything that the Trump administration is currently saying. Now, I think we all across the country have an obligation to disrupt the harmful rhetoric about our healthcare.

And so one thing New Yorkers can do is continue to push their elected representatives at the local and state and federal level to be firm advocates for trans people and our healthcare as we continue to see this widespread effort to erode support for trans life. I think we should remind people that if we cut off healthcare and erode bodily autonomy for one group of people, we are opening the door to doing that for many other groups of [00:20:00] people. And so we need strong advocates in our government. We need strong representatives at every level of government and New Yorkers can push our representatives to be strong and persistent and clear advocates for trans life.

Simon: Yeah. And you’re touching on the last question I wanted to ask you, which is first, what gives you hope in this moment as you continue to fight for trans rights, and what can people do to join this fight?

Chase: Yeah, I mean, so for me, at the end of the day, what gives me hope is the fact that no matter how robust a campaign that any institution or government wants to wage on our lives and our bodies, trans people have always been here. We will always be here and we’re not going anywhere. And so it gives me hope to stand in solidarity, to work in solidarity with my community because we have such a long history of powerful, beautiful, and transformative resistance. And one of the most powerful things about trans people is that we have been told [00:21:00] over and over again by our parents, by our communities, by our schools, by our workplaces, by our government, that we do not or should not exist. And yet even in the face of that overwhelming attempt to make us smaller, we continue to fight for who we are. And I think that is a powerful lesson for anyone, and it gives me hope every day, especially seeing the young people who stand up for their truth. And so when I think about what can people do to join in that hopeful, beautiful project, I come back to being an ambassador for the power and beauty of transness and for our diverse world that we live in. Because one of the most destructive forces in this moment is the impulse to divide us and the misinformation that is dominating so much of our media environments. And we all have a role to play in disrupting that.

We have a role to play in living a politics of solidarity, fighting for people outside of our immediate circles. We [00:22:00] have a role to play in challenging misinformation. You know, Fox News put out 400 segments on trans athletes in a period of four months when we have maybe a handful of trans athletes competing at different levels in this country.

We are being inundated with a story that deems trans people powerful monsters, and yet, what we want is a story that centers our humanity, that reflects the reality that attacking us is part of a larger executive power grab. It’s part of a goal of dividing us so that those in power can maintain their power. So we have a role to play in disrupting those narratives. And I think everyone can look to their representatives at their school boards, in their city council, in mayoral elections, in state legislatures, like this is a fight that is not just playing out at the federal level. Elections that happen at the federal level are not the only ones to control the material resources of our lives, and so [00:23:00] we should continue to be engaged in this fight at every level.

Simon: Thank you, Chase. That’s a great place to leave it and I just want to thank you so much again for coming on Rights This Way.

Chase: Thanks for having me.

Simon: And now I’m joined by two guests. Allie Bohm is a Senior Policy Council at the NYCLU, and Jenna Lauder is a NYCLU Policy Council. Jenna, Allie, welcome back to Rights This Way.

Allie: Thanks for having us.

Jenna: Pleasure to be here, Simon.

Simon: Yeah. Great to have you back. And I guess I wanna start, Allie, I’ll start with you. Talk about what the broad implications of the Skrmetti decision are specifically for New York.

Allie: Sure. You know, I wanna be really clear from the jump that the Skrmetti decision did not directly impact access to gender affirming care here in New York. What that decision did was allow a really horrific Tennessee law prohibiting young people from [00:24:00] receiving gender affirming hormone therapy. It allowed that law to remain in effect. That does not, it does not say anything about any other state’s laws including New York’s. However, it also creates a roadmap for states that want to prohibit gender affirming care. So I think we can expect here in New York that we will see more people traveling to New York to receive care and more families moving to New York because we are a state where people can receive healthcare.

The other really important piece is the message that it sends to the trans community and to trans young people in particular. And you know, frankly, ever since Trump was elected, ever since the executive orders in its first days and week in office, that really target trans people and seek to erase them from public life, trans people and their families have been getting a clear message and [00:25:00] saying, do we need to think about leaving the country? How do we get access to healthcare? And that has really risen to a fever pitch as this decision has come down. People are, even though healthcare remains, gender affirming care remains legal in New York, remains available in New York, remains accessible in New York, people are scanning the sky for other shoes to drop and saying, you know, is this a place I can continue to live? Am I going to be safe here? Is my child going to be safe here? Do I need to move to Canada? Do I need to look at other options? And that, I think that pitch has increased as a result of that decision, and that’s very real here in New York communities.

Simon: And there are a number of pieces of legislation that the state legislature passed this year and that are just awaiting Governor Hochul’s signature. Jenna, can you talk about one of those bills, which would help prevent hostile states and the Trump administration from punishing both abortion and gender affirming care providers.

Jenna: Sure Simon. And before I [00:26:00] jump into talking about that bill, I think I just wanted to add on to some of what Allie was saying about the Skrmetti decision. You know, Allie is totally right to highlight that even in the midst of this culture of fear and extraordinary attacks on the trans community, gender affirming care, you know, does remain not only legal, but also protected here in New York. And that is in part thanks to New York State Constitutional Amendment that New Yorkers overwhelmingly voted to enshrine in our constitution just this past year, the Equal Rights Amendment, which includes explicit protections for gender identity and expression. So that’s yet another bulwark we have in place here in New York to guard against attacks like the one that you know, we’re seeing in Skrmetti as well as rollbacks of protections that exist here for the trans community in our state. So by enshrining those protections in our state [00:27:00] constitution, we’ve really taken a step to insulate trans rights from not only the narrowing of federal equality law, but also from potential shifts in political winds here in New York should we end up with in the future, you know, an anti-trans legislature or an anti-trans governor. They’ll be restricted in their ability to actually enact anti-trans policies thanks to these new state constitutional protections. So just wanted to really uplift that for folks who might be listening. And now, you know, I think that’s a great segway into talking about the legislation that the New York State legislature passed at the end of this session which now awaits Governor Hochul’s signature, which would strengthen New York state’s legal protections for gender affirming and reproductive healthcare providers, patients, and the people who facilitate access to that care. So, you know, as the Skrmetti case really illustrates reproductive freedom and gender justice are, and have been for many [00:28:00] years now, under unprecedented historic attack. Access to healthcare and, you know, in particular these forms of healthcare that are really integral to gender equality and affirmation, namely abortion and gender affirming care, have been rapidly diminishing for people across the country. And the people who provide that care as well as those seeking it and the people helping them access it, whether that be family members or abortion and logistical funds have been coming under legal attack by hostile states and the federal government. You know, Allie referenced some of the federal government’s executive orders really targeting trans people and aiming to erase them from public life. As of this past spring, at least 49 bills have passed in states around the country banning or restricting gender affirming care. So, you know, these attacks are very real.

They’re not hypothetical at this point. You know, this is essential and often life-saving care for people. And [00:29:00] people will need to continue to access it, whether or not it’s permitted in their state. So this is leading folks who can to travel to other states and access care in other states like New York where that care is legal and protected. But we know that these states who are hell bent on banning this care, they’re not, they’re not stopping at just banning it within their own borders. They’re already trying to chill and punish access to care from out-of-state providers. So what we’ve been seeing is some states actually issuing information demands to hospitals and nonprofits providing gender affirming care in other states in order to get evidence that will help them punish provider seekers and helpers. And, whether or not those attempts to punish folks are actually successful in court, they have this terrible chilling effect where they really create this culture of fear. And so New York has taken steps to better protect New York’s [00:30:00] own gender affirming and reproductive healthcare providers, patients, and those supporting people in accessing care after the fall of Roe v Wade, which I think as folks know is the Dobbs decision that overturned the federal constitutional right to abortion, New York enacted what have become known as SHIELD laws, which make it harder for hostile states and now also the Trump administration to investigate, prosecute, and punish those who seek, provide, and facilitate access to reproductive and gender affirming healthcare here in New York.

But in the years that have passed since New York first enacted those laws, we have come to see that there are significant gaps in those protections that continue to leave people vulnerable to criminalization. And so now that those gaps have become clear and as assaults on care continue to escalate, New York urgently needs to strengthen our SHIELD laws to better protect access to gender affirming healthcare as well as reproductive healthcare. So this past [00:31:00] spring, the legislature passed a bill that would strengthen New York’s SHIELD law protections. It would do a number of things, and I won’t get too far deep into the weeds, but I think what folks really need to know is that it closes gaps and strengthens protections, especially against the sharing of information with hostile states and federal government actors that could be weaponized against people. And that bill is now on Governor Hochul’s desk to sign into law.

Simon: And Allie, there’s another bill called the New York Health Information Privacy Act that would give New Yorkers, including those seeking gender affirming or abortion care, more control over their personal electronic information. Can you tell us about that bill and exactly why it’s so critical right now.

Allie: Sure. So in the digital age, in our modern age, we use a number of apps and technologies and devices, whether intentionally or unintentionally, that collect information about our [00:32:00] health. So I’m thinking about period tracking apps, smartwatches, Fitbits, you bought a lot of unscented lotion at Target and now Target thinks you’re pregnant and the list goes on. Those apps and devices and tools reveal health information. And yet, and I think for that reason, a lot of folks think that they are protected by HIPAA, the federal Health Insurance Portability and Accountability Act, that’s our federal health privacy law. But in fact, this type of data receives no privacy protections at all because HIPAA really only applies in a healthcare context. So are you seeing a doctor, a nurse? If so, HIPAA probably applies. If not, if it’s just an app on your phone, HIPAA doesn’t apply, and we don’t have a federal health privacy law in this space. We don’t have a New York health privacy law, or general consumer privacy law that would apply in this space. So the New York Health Information Privacy Act fixes that problem.

[00:33:00] It gives us more control. It puts in place some reasonable privacy protections for that electronic health data, that commercial health data like the Fitbits and the smart watches. It also really importantly, takes steps to make sure that other states cannot use those data, whether they’re about New Yorkers or when they were generated in New York, to penalize or criminalize people for accessing healthcare here.

So, Jenna talked about our SHIELD laws. Our SHIELD laws are really important, but our SHIELD laws cannot bind another state’s law enforcement. So for example, if somebody is traveling to New York to access gender affirming care, and they take an Uber to Callen Lorde, community health center in New York City, that information about that Uber ride to Callen Lorde would be in Uber systems. Generally speaking, if a Texas prosecutor wants to go after that person, they can show up at Uber’s office in Texas, serve legal [00:34:00] process there, and the New York courts and the New York SHIELD law is not going to kick in at all. But, if the New York Health Information Privacy Act is signed, Uber is going to have deleted that health information, that information that revealed health because it was going to a health center, that took place in New York, because that’s when the Uber ride was. And so when Texas shows up with a subpoena at Uber’s Texas office and says you must comply, or I will hold your people for contempt, I will arrest them, I will jail them. Uber says, here’s everything we’ve got on this person, and it does not include the Uber ride to Callen Lorde. That’s a really important measure for protecting people. That’s a bill that passed back in January for the anniversary of Roe v. Wade. It’s been on the governor’s desk ever since. She needs to sign it. It will just say, as a sort of corollary, we have very similar protections for children’s online data here in New York for young people. So these are protections that companies know how to deal with. There’s also a health [00:35:00] privacy law in Washington state. Again, the companies know how to do this, and it’s just awaiting the governor’s signature.

Simon: And I also wanted to talk about the fact that New York does have, as you both have mentioned, strong protections for abortion and gender affirming care. But there are healthcare deserts in our state, and if people live in one of those, accessing that care can actually be pretty challenging. And there’s also the added element under the Trump administration where after he issued an executive order earlier this year threatening gender affirming care providers, some in New York actually stopped providing that care. Allie, can you talk about what the governor can do to start to address those problems?

Allie: Absolutely. So, you know, and I wanna step back. As Simon said, in the first week of his administration, Trump issued some executive orders really aimed at chilling people from providing gender affirming care. [00:36:00] These orders were not legally binding and entities in New York and frankly since have been enjoined. So really entities in New York should not be complying with them. But we saw a lot of fear in the provider community and we saw hospitals starting to cancel appointments, starting to deny care. And the number one ask that we got in community was, how do we know? How do we know who’s denying care? How do we know who’s still providing care? And the answer was, there is no systemic way to find out. You make phone calls to hospitals. There’s word of mouth in community. And in fact, we as a state don’t have a picture of where gender affirming care is available statewide. We don’t have a picture of where abortion is available and where it’s not statewide. We don’t have a picture of any number of types of healthcare that are frequently denied. We can add end of life care to that list as well. And the list goes on. So what this bill would do, it’s a bill called Hospital Transparency, and it would give New [00:37:00] Yorkers the ability to find out whether the hospital in their area provides the care they need before they’re admitted and before they end up in the sort of phone spiral that we were seeing our trans families getting into at the top of the year.

And really importantly, it would help the state identify care deserts where particular types of care are completely unavailable. And this is a first step. It’s laying the groundwork to making sure that everybody can get access to comprehensive healthcare, comprehensive quality healthcare, regardless of their zip code in the state.

This is a bill that passed again at the end of this year. It is on the governor’s desk. The governor needs to sign it. It’s also a bill that she was on the wrong side of last year. She actually vetoed this bill at the end of last year which is really, sort of a nightmare when you think about the ways in which healthcare has come under attack at a global level, to say nothing of abortion and gender affirming care coming under attack at a nationwide level, and the real need for people to know where they can access this care and for the state to [00:38:00] know where we have a problem, where we don’t actually have access to care if we are going to be an access state for abortion care, for gender affirming care, for healthcare more generally. We need to understand where care is being provided and where it’s being denied in our state.

Simon: And as we wrap up, what else should people listening to this right now know about the threats and the challenges we’re facing and what they can do if they wanna try to get these bills over the finish line. Jenna I’ll start with you.

Jenna: Thanks, Simon. I mean, I think, one other thing to name when it comes to threats and challenges just on a big picture level is the critical need for funding and investment in our access to care ecosystem, both with respect to gender affirming care and reproductive healthcare. You know, we see that funding is a major barrier both to providers being able to continue to provide [00:39:00] this care in a sustainable way and for individuals who are seeking to access it. I think that the federal budget bill that was just passed earlier this month really throws that into sharp relief as the federal government massively slashes funds that keep our communities healthy.

So I just wanted to name that for folks to keep on their radar. But I think in terms of ways that people can really immediately get involved to get some of these measures over the finish line, the three bills that we talked about today, which are critical for keeping care accessible and really protecting folks from punishment as a result of accessing or providing care. All of these bills remain unsigned with Governor Hochul And so she needs to sign these bills as the final step to actually enacting them into law. So, people can take action by emailing her office. And the NYCLU has tried to make this easy.

We have an action on our website that folks can [00:40:00] click into very quickly, you know, in 30 seconds or less, send a message to Governor Hochul’s office reiterating the importance of these bills and urging her to sign them without delay. So hopefully we’re able to somewhere drop the link for those actions for listeners to find

Simon: Yes. We’ll have a link to that action in the show notes. Thank you for mentioning that, Jenna.

Allie: And if folks wanted to take the next step, you can also find the governor’s phone number on her website and you can call her office. And for every email she receives, she assumes probably a hundred people agree. For every phone call she receives, she assumes probably 500 people agree, because that’s a higher, you know, sort of barrier to action. So we do encourage folks to call as well and stay tuned. If you are not plugged into our channels, to our listservs, please get in the loop. We are hoping that we will have some more ways that folks can engage, perhaps even in person, on these bills coming down the pike. So [00:41:00] watch this space. Look for opportunities for engagement with us.

Simon: Yes. And with that, I agree. Watch this space. And Allie and Jenna, thank you both so much for coming on Rights This Way.

Jenna: Thanks so much for having us, Simon.

Allie: Thanks Simon.

Simon: Thank you for listening. You can find out more about everything we talked about today by visiting nyclu.org, and you can follow us at NYCLU on Instagram, Twitter, and Facebook. If you have questions or comments about rights this way, you can email us at podcast@nyclu.org. Until next time, I’m Simon McCormack, thank you for fighting for a fair New York.