As the 2023–24 legislative session gets underway, a number of states have resolved to make “gender-affirming care” a central focus. In red states, this means restricting the controversial practice or trying to eliminate it altogether. Some states, including Alabama and Arkansas, will be defending previously passed bans in the courts.
State efforts to restrict the use of puberty blockers, cross-sex hormones, and surgeries to address (apparent) gender-related distress in youth make for good public policy. Yet even lawmakers on the morally and scientifically correct side of an issue risk overstepping by unintentionally proposing harmful or strategically counterproductive regulations. We write to warn of three such mistaken efforts.
By way of background, European countries, including Finland, Sweden, and England, have conducted systematic reviews of evidence for hormonal interventions and found no evidence that the benefits outweigh the risks. In more specific terms, they found no evidence that drugs and surgeries (which, in Europe, remain almost unheard-of) are superior to the less invasive alternative—psychotherapy. In addition, new research highlights how the social and political climate surrounding such aggressive treatment creates a placebo effect, making it impossible to know whether even the observed short-term benefits to mental health from hormones owe to the drugs themselves.
The Europeans have since reverted to the Dutch protocol, which requires, as conditions of eligibility for hormones, that patients experience prepubertal onset of symptoms, have no serious co-occurring mental-health problems, have familial support for their decision to use the drugs, and first undergo extensive (usually six-month-long) psychotherapy. This stands in contrast to the affirmative model, which takes a patient’s “gender identity” at face value, relies on the “minority stress” framework to explain (or explain away) co-occurring mental health problems, and exhibits strong distaste for medical “gatekeeping.” (In her report to the NHS on the Gender Identity Development Service at the Tavistock Clinic, Hilary Cass, former president of the U.K.’s Royal College of Paediatrics and Child Health, chose a more apt word, emphasizing the adoption of an “affirmative model” that “originated in the USA” as a main reason for the lack of patient “safeguarding.”)
Recent research published in peer-reviewed journals, however, demonstrates that even the purportedly more cautious Dutch protocol rests on a shabby empirical foundation. The problems with this protocol are well-documented by now, and it appears to be in a state of early collapse. Not only does the study that formed the basis for the protocol suffer from serious problems of bias and applicability to the current clinical scene, but the Dutch researchers have yet to publish any long-term mental health outcomes from it. If even the gold standard of research cited in support of pediatric gender medicine is this weak, what should one think of intervention protocols that are far less cautious, with an even more explicit ideological basis?
The fundamental justification for any state intervention into private decisions, even decisions as intimate as medical ones, should be the regulated entity’s unwillingness or inability to exercise discretion responsibly. When it comes to the intersection of gender and medicine, the American medical establishment has earned the distrust of regulators—and of the public at large. Enter state Republicans. Fired up by what they correctly perceive to be one of the worst medical scandals in American history, many are poised to act in the coming months. But good intentions don’t guarantee good results, and it’s important for those advocating medically and ethically sound public policy to call out mistakes on both sides of this debate.
Start with Tennessee’s bill, HB001/SB001, which contains a private right of action allowing a minor harmed by gender medicine to bring a lawsuit not only against his or her medical provider but also against his or her parents. This is a bad idea for three reasons.
First, while children are undoubtedly the primary victims of gender medicine, their parents are also victimized. Parents are commonly kept in the dark as schools socially and psychologically transition their children behind their backs, an act that may well prove iatrogenic (meaning an intervention that is itself the cause of the illness) and greatly increases the chance that an otherwise passing phase of confusion will congeal into a more permanent state of mind or “identity” in “need” of irreversible medicalization. Parents also find it extremely difficult to control the flow of information to and from their child on social media, a well-known platform for recruiting confused and distressed minors into gender ideology.
When the parents of a socially transitioned child bring their child to the doctor’s office, they are frequently told that failure to affirm the child’s asserted gender socially and medically is likely to result in the child’s suicide. “You can either have a live son or a dead daughter” is a line that, according to many detransitioners, therapists commonly use to obtain parental support for their medical transition. To be clear, there is zero evidence that unaffirmed “gender identity” comes with serious risk of suicide or that affirming will mitigate that risk. There is stronger evidence that teenagers, especially girls, with preexisting mental health problems and a strong inclination for suicidal thoughts and self-harming behaviors (distinct from suicide attempts) are more likely to adopt a trans identity, perhaps seeing it as a panacea for their distress. European health authorities are not indifferent to teen suicide; rather, they simply see no good evidence that “gender-affirmative” medicine solves the problem.
Imagine a parent of a teenage girl who has engaged in cutting and learned through social media a manipulative “give me what I want or I’ll kill myself” script. Now imagine that the entire medical establishment, Democratic Party, and left-of-center media tell that parent that she must transition her child or risk the child’s imminent death. For most parents, it would take superhuman resolve not to comply. This is far beyond what can reasonably be expected of parents, most of whom have no clue what the medical science says, how their own doctors may have been misled by their professional associations, or the extent to which those associations have fallen to ideological capture.
Second, and related, SB001/HB001 inadvertently helps gender ideologists achieve their goal of disempowering parents and dissolving parental authority. By turning minors into potential litigants against their parents, the law implants the culture wars even deeper into the bosom of the family. Gender ideology’s origins in queer theory are instructive. Deeply hostile to any notion of authority, boundaries, or normalcy, queer theory tends to regard children as possessors of sacred knowledge and seeks to unleash them as agents of radical social change. Diane Ehrensaft, a prominent advocate of “gender-affirming care” who has testified in a number of lawsuits on the matter, makes this point explicitly in her writings. Children as young as two are, in her view, “leaders” of a gender “revolution.” Their parents, and indeed all adult figures of authority—except, perhaps, for figures like Ehrensaft herself—have one role: to “follow the child’s lead.”
Consider that the Biden administration itself, in its proposed Title IX rules, would require schools to defer to students in how, when, or even whether to appraise parents about any decision related to gender transition at school. Lawsuits are underway across the country challenging the legality of secret gender transitions. Prominent interest groups, including the ACLU and the National Education Association, have advocated explicitly for secret transitions. Lawmakers intent on restoring sanity into the law and public policy should not assist these ideological organizations in driving a wedge further between children and their parents. Such policies not only damage the family but also contradict the healthy trend among many concerned Americans of increasing, not diminishing, parents’ right to make informed medical decisions for their children.
Finally, once passed, laws or precedents can be utilized by their opponents to create legal precedents that the original lawmakers or judges would have preferred to avoid. Bostock v. Clayton County is a good example. The Supreme Court case involved employment discrimination under Title VII; Justice Neil Gorsuch, who wrote the majority opinion in favor of the plaintiffs, went out of his way to explain that the Court was not interpreting “sex” to mean “gender identity” and therefore that nothing in the ruling should be construed as resolving ongoing debates over access to sex-specific accommodations like restrooms. Yet that is exactly how lower courts and the Biden administration have subsequently interpreted Bostock. A law that empowers children to sue their parents for agreeing to medical transition can, with some clever maneuvering by the ACLU and the courts, be inverted to create a judicial precedent whereby children can sue their parents for not consenting to these medical “treatments.” The threat alone could prompt some parents—those not manipulated by the affirm-or-suicide mantra—into agreeing to something they would otherwise oppose.
Two other ill-conceived state policies are Oklahoma’s Millstone Act, which would criminalize the provision of hormones and surgeries to patients under age 26, and the Texas Department of Family and Protective Services’s policy (currently in litigation) of investigating parents who agree to medical transition procedures for their children.
In Texas, Greg Abbott’s administration decided in February to launch investigations of parents who chose to pursue “gender-affirming” interventions for their children. This followed a (nonbinding) legal opinion from Attorney General Ken Paxton that found these interventions to qualify as “child abuse.” Once again, the major problem here is the mens rea component: though some parents who agree to these “treatments” may do so out of less-than-noble motives, most are simply caught between their child’s threats of self-harm and the medical establishment’s assurance that hormones and surgeries are safe and life-saving measures. The deeper problems with the Texas policy are similar to Tennessee’s, but two additional causes of concern should be underscored.
First, the Texas policy undercuts reformers’ argument about the importance of parental rights and parental discretion over the health-care decisions of children. For every parent who exercises that right in irresponsible ways, many more are egregiously manipulated into making harmful decisions. Ultimately, legislatures and courts will have to clarify the asymmetry in the parental-rights argument: parents have broad discretion over their child’s health-care decisions, but they cannot consent to harmful interventions. For now, however, the battle must be fought at a higher level of abstraction. Simply getting lawmakers and judges to recognize parental authority, regardless of how it is exercised, would greatly reduce the number of kids being harmed by the gender-transition industry.
Second, the Texas policy has triggered a counterreaction among Democrats to create “sanctuary states” for kids seeking hormones. California’s SB 107, sponsored by state senator Scott Weiner and passed last year, was a direct response to developments in Texas. As the text of the law makes plain, its goal is to provide a safe haven for those seeking medical transition against enforcement efforts in their home states. Especially when coupled with other California provisions dealing with minor access to health care, SB 107 is truly nefarious in its intent and implications. Lawmakers who want to limit and eventually do away with “gender-affirming care” cannot afford to ignore the political logic of these battles, nor the extent to which this issue has been supercharged by partisan polarization.
The proposed ban on hormones and surgeries in Oklahoma, meantime, combines two things that should be kept separate: transition of adults and transition of minors.
To be sure, a legitimate debate can be had about whether or under what conditions “gender-affirming care” should be offered to adults. Adults are better able than minors to understand the risk–benefit calculus of these interventions and make autonomous choices, but adults are not always being given factually accurate assessments of the risks and benefits. A legitimate debate can also be had about whether consent to “gender-affirming” interventions should be available right at the cutoff age of 18, given that cognitive development is believed to last until age 25.
It would be reasonable to view transition for adults as a riskier version of cosmetic surgery. It would also be reasonable to wonder whether doctors’ independent duty to “do no harm” precludes them from prescribing these interventions even if adults are fully able to consent to them. These are difficult and legitimate questions, and we are far from persuaded that hormones and surgeries should never be offered to mature, consenting adults who have been given all the relevant and accurate information.
But the argument for restricting these interventions for minors is obviously more compelling and politically easier to make, and given the Wild West of pediatric gender medicine in the United States, there is an urgent need to make it. Oklahoma’s law makes it harder for reformers to do so. It lends credence to gender industrialists when they say that critics’ concerns about minors are merely a smokescreen for the true end goal, which is prohibition of all medical transition, which they equate to forcing all transgender people back into the closet.
Lawmakers can do much to protect children, restore parental authority, and mitigate the harms of ideological capture in the medical field. One of us, along with Manhattan Institute fellow John Ketcham, recently published an article outlining eight policy proposals states can adopt short of total bans. For states that do wish to pursue bans, the ideal is to limit those bans to minors, use civil rather than criminal penalties, include grandfather clauses for minors already on synthetic hormones, expand statutes of limitations for malpractice liability, and allow for private rights of action (against providers only). These proposals represent a more constructive way to regulate this issue.