Idaho’s Republican-controlled House of Representatives has passed a bill criminalising all gender-affirming healthcare for trans minors in the state, equating such procedures with female genital mutilation/cutting (FGM/C).

The draft bill, HB71, says medical workers who provide gender-affirming healthcare, including puberty blockers, cross-sex hormones and surgery, to anyone under the age of 18 can be prosecuted. If convicted, they could be imprisoned for up to ten years. Authorising this care is also considered a felony under the bill, so parents could be prosecuted too.

Campaigners have warned the bill will both deprive trans minors of essential healthcare and put girls at increased risk of FGM/C.

The bill was rushed through the lower chamber of the state legislature in just two weeks, and passed by a majority of 58-12 on 15 February. It now goes to the state Senate and, if approved there, to the desk of the Republican governor, Brad Little, for signature.

FGM/C, a ritual passage in some cultures, is considered child abuse and gender-based violence against women and girls. The World Health Organization (WHO) defines it as “the partial or total removal of external female genitalia or other injury to female genital organs for non-medical reasons”. It has no health benefits and can lead to a range of serious, negative physical and mental health outcomes.

Idaho’s draft law is similar to a Texas bill – which is yet to be voted on – that equates gender-affirming healthcare with genital mutilation. Both amend existing state legislation that bans FGM/C, by removing the word “female” from the phrase “female genital mutilation”, as well as the specific language that defines this harmful practice.

Changing the language “changes the law from focusing on FGM/C to instead focusing on gender-affirming healthcare – and these two issues are not the same”, said Caitlin LeMay, the chair of the US End FGM/C Network, a platform of survivors, civil society groups, activists, policymakers and healthcare providers.

“They are essentially scrubbing FGM/C from the bill completely, which is incredibly concerning,” LeMay told openDemocracy. If HB71 is passed, “there will no longer be a bill that prohibits FGM/C specifically, thus putting girls in Idaho at risk and left without any state protections”.

The Idaho bill bans any medical procedure performed on a child “for the purpose of attempting to alter the appearance of or affirm the child’s perception of the child's sex if that perception is inconsistent with the child's biological sex”. But, LeMay explained, “FGM/C has nothing to do with a person's gender identity and does not serve to alter or affirm a person’s perception of their sex or gender identity”.

The reasons behind the bill’s introduction are clear, believes Meredithe McNamara, assistant professor of paediatrics and a specialist in adolescent medicine at the Yale School of Medicine.

“If you can't pass an outright ban [on transgender medical care, you can try] to pass something else that can manipulate public opinion and people’s perceptions of gender-affirming care,” McNamara told openDemocracy.

In written testimony criticising the bill, the US End FGM/C Network said: “We firmly believe that these two very important issues should not be linked through legislation that seeks to criminalise gender-affirming care or be associated in any other context.”

The WHO estimates that more than 200 million women and girls globally have suffered FGM. Cases have been documented in at least 92 countries, including the US, according to the US End FGM/C Network.

The Centers for Disease Control and Prevention say that 500,000 girls and women in the US have experienced or are at risk of FGM/C. There are still ten US states and the District of Columbia without laws prohibiting this practice.

Second attempt

HB71 was introduced by Republican lawmaker Bruce Skaug. It’s not the first time he has weaponised FGM/C in an attempt to ban healthcare for trans children and youth; he sponsored a similar bill last year, which was also passed by Idaho’s House of Representatives but failed in the Senate, when the Republican majority considered it harmful for “parental rights”.

The 2022 bill included harsher penalties (up to life imprisonment) and also banned taking a child to another state to get treatments banned in Idaho.

Skaug refused to answer openDemocracy’s questions on HB71, saying he is “not giving any interviews or media responses on this bill until it is well on the way through the Senate”.

Amy Dundon, legislative strategist of the American Civil Liberties Union in Idaho, said one of the reasons they’re concerned about HB71 is because “it's criminalising all forms of gender-affirming care”, including “pharmacological treatments… standards of care that save kid’s lives”.

The bill is part of a broader effort, Dundon said, to restrict the rights of children to seek the medical care they need and to restrict the rights of parents to protect their own child and advocate for them.

They added: “One of the reasons we're concerned with HB71 is not only because of the name and what it's pointing to, but because it's criminalising all forms of gender affirming care.”

Dundon said it is not clear if the bill will pass Idaho’s upper chamber, the Senate, because several new senators were elected in 2022 and it’s not known how they will vote.

But if it does pass, Dundon said the bill is “unlikely to survive a legal challenge as it is unconstitutional”. They explained that any potential court case would be a lengthy procedure that will inevitably cost the state – and taxpayers – money.

Elsewhere in the US

Though Idaho and Texas have had more success than most, there are attempts in other states to weaponise FGM/C legislation to criminalise gender-affirming healthcare for trans youth.

In Washington, one of the people testifying at a state senate hearing last month in support of a bill banning “female genital mutilation” wanted to include male circumcision and a provision against gender-affirming healthcare.

And a 2020 bill to ban FMG/C in Wyoming originally included a provision that equated sex reassignment surgery with female mutilation, which was ultimately removed.

Republican authorities in Texas have repeatedly defined gender-affirming healthcare as “genital mutilation” and “child abuse” and also tried to take legal action against parents and practitioners who engage in providing such care to trans children.

The Texas draft bill is less extreme than Idaho’s in that it doesn’t ban puberty blockers and hormone therapies, although it does ban taking under-18s to another state for gender-affirming surgical procedures (although these are already extremely rare for minors in the US, and are only done after robust review by multiple medical professionals). Both bills, along with other state bills targeting gender-affirming care, include an exemption that allows surgery to be performed on intersex children without their consent.

“Most concerning to me (aside from the obvious barbarism) was that most FGM statutes include provisions that touch on interstate travel,” said Corinne Green, policy and legislative strategist at Equality Federation, which advocates for LGBTIQ+ equal rights in the US. “The Texas bill, by virtue of hitching a ride on it, was the first ever trans healthcare ban to go that far.”

The Idaho bill removed a similar clause, but Green said she’s tracked 34 bills this year that have attached interstate travel bans to gender-affirming healthcare bans.

Debunked statistics

Healthcare for trans youth requires gender-affirming approaches, according to numerous national medical authorities, including the American Psychiatric Association, the American Academy of Pediatrics and the American Academy of Child & Adolescent Psychiatry.

The Idaho bill quotes debunked statistics, paediatric specialists say, further fuelling disinformation about trans identities and realities.

The bill states that gender dysphoria among children rarely persists into adulthood, claiming that peer-reviewed research says that up to 98% of gender-dysphoric boys and 88% of gender-dysphoric girls ultimately identify with their biological sex after passing through puberty.

That is wrong, says McNamara, of the Yale School of Medicine: “That statistic has been recycled in other states to create the false narrative that gender dysphoria is somehow unstable or transient. We know that that's not the case.”