Data Sanctuary for Trans People

A growing number of states have prohibited transgender youths from obtaining gender-affirming health care. Some of these states are also restricting access by transgender adults. Fortunately, other states have responded by enacting sanctuary laws to protect trans people who visit to obtain this health care.

Even before these new laws, most trans people had to travel out of state to obtain gender-affirming surgery. After these laws, we can expect much more out-of-state travel for all forms of gender-affirming health care.

To be the most welcoming health care sanctuary, a pro-trans state must also be a data sanctuary.

Anti-trans states are investigating people who provide gender affirming care, or help others receive it. For example, the Texas Attorney General is investigating a hospital for providing gender-affirming health care to transgender youths. Likewise, the Texas Governor last year ordered child welfare officials to launch child abuse investigations against parents whose trans children received such care. We can expect anti-trans investigators to use the tactics of anti-abortion investigators, including seizure of internet browsing and private messaging.

So it is great news that California Gov. Newsom last year signed S.B. 107, a trans health data sanctuary bill authored by Sen. Scott Wiener. EFF supported this bill. In important ways, S.B. 107 limits how California entities disclose personal data to out-of-state entities that would use it to investigate and punish trans health care.

First, the new law bars California’s state and local government agencies, and their employees, from providing information to any individual or out-of-state agency regarding provision of gender-affirming health care.

Second, the new law bars California’s health care providers from disclosing medical information about a person who allows a youth to receive gender-affirming care, in response to an out-of-state civil or criminal action against allowing such care.

Third, the new law bars California’s superior court clerks from issuing subpoenas to disclose information, based on out-of-state laws against a person allowing a youth to receive such care.

Three cheers for California! Other pro-transgender states should enact similar data sanctuary laws.

More work remains in the Golden State. Anti-trans officials will continue to seek information located in California, and policymakers must enact new laws as needed. For example, California may need new limits on disclosure of data held by California-based communications and computing services. Eternal vigilance is the price of data sanctuary.

Data sanctuary must extend beyond trans people visiting a pro-trans state for gender-affirming health care. For example, it must also include abortion seekers visiting an abortion sanctuary, and immigrants living in an immigrant sanctuary.

Data sanctuary is strongest if there is less data to protect. That’s one more reason why Congress and the states must enact comprehensive consumer data privacy legislation that limits how businesses collect, retain, use, and share our data. A great way to stop anti-trans officials from seizing data from businesses is to stop these businesses from collecting and retaining this data in the first place. Legislators should start with Rep. Jacobs’ My Body, My Data bill.

This article is part of our EFF Pride series. Read other articles highlighting this years work at the intersection of digital rights and LGBTQ+ on our issue page.