Medical Treatments for Transgender Minors--Oral argument in Supreme Court

 Yesterday the Supreme Court heard oral arguments about the Tennessee ban on transgender treatment for minors.

Supreme Ct. Hears Case on Medical Treatments for Transgender Minors
"The Supreme Court heard oral argument in United States v. Skrmetti, a case on whether Tennessee’s ban on transgender medical treatments for minors violated the Equal Protection Clause of the 14th Amendment. Tennessee enacted its law in March of 2023, which stated that there was a “compelling interest” to protect minors from physical and emotional harm by banning health care providers from administering hormone/puberty blockers and surgery to minors for transgender purposes. Transgender minors and their families sued the state, and the Justice Department intervened on their behalf, arguing the law discriminated on the basis of sex. A district court then stopped the ban on hormone and puberty blockers, but the Sixth Circuit Court of Appeals reversed that decision. The Justice Department then appealed to the Supreme Court. Chase Strangio, who argued on behalf of trans minors and their parents, was the first openly transgender lawyer to argue before the Court. 

Opening statement (text compiled from uncorrected Closed Captioning):

"MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT, THIS CASE IS ABOUT ACCESS TO MEDICATIONS THAT HAVE BEEN SAFELY PRESCRIBED FOR DECADES TO TREAT MANY CONDITIONS INCLUDING GENDER DYSPHORIA. BUT SB-1 SINGLES OUT AND BANS ONE PARTICULAR USE. IN TENNESSEE THESE MEDICATIONS CAN'T BE PRESCRIBED TO ALLOW A MINOR TO IDENTIFY WITH OR LIVE AS A GENDER INCONSISTENT WITH THE MINOR SEX. IT DOESN'T MATTER WHAT PARENTS DECIDE IS BEST FOR THEIR CHILDREN. IT DOESN'T MATTER WHAT PATIENTS WOULD CHOOSE FOR THEMSELVES, AND IT DOESN'T MATTER IF DOCTORS BELIEVE THIS TREATMENT IS ESSENTIAL FOR INDIVIDUAL PATIENTS. SB 1 CATEGORICALLY BANS TREATMENT WHEN AND ONLY WHEN IT'S INCONSISTENT WITH THE PATIENT'S BIRTH SEX. TENNESSEE SAYS THAT SWEEPING BAN IS JUSTIFIED TO PROTECT ADOLESCENT HEALTH, BUT THE STATE MAINLY ARGUES THAT IT HAD NO OBLIGATION TO JUSTIFY THE LAW AND THAT SB 1 SHOULD BE UPHELD SO LONG AS IT'S NOT WHOLLY IRRATIONAL. THAT'S WRONG. SB 1 REGULATES BY DRAWING SEX-BASED LINES AND DECLARES THAT THOSE LINES ARE DESIGNED TO ENCOURAGE MINORS TO APPRECIATE THEIR SEX. THE LAW RESTRICTS MEDICAL CARE ONLY WHEN PROVIDED TO INDUCE PHYSICAL EFFECTS INCONSISTENT WITH BIRTH SEX. SOMEONE ASSIGNED FEMALE AT BIRTH CAN'T RECEIVE MEDICATION TO LIVE AS A MALE, BUT SOMEONE ASSIGNED MALE CAN. IF YOU CHANGE THE INDIVIDUAL SEX, IT CHANGES THE RESULT. THAT'S A SEX CLASSIFICATION FULL STOP, AND A LAW LIKE THAT CAN'T STAND ON BARE RATIONALITY. HERE TENNESSEE MADE NO ATTEMPT TO TAILOR ITS LAW TO ITS STATED HEALTH CONCERNS. RATHER THAN IMPOSE MEASURED GUARDRAILS SB 1 BANS THE CARE OUTRIGHT NO MATTER HOW CRITICAL IT IS FOR AN INDIVIDUAL PATIENT. THAT IS A STARK DEPARTURE OF PEDIATRIC CARE IN ALL OTHER CONTEXT. SB 1 LEAVES THE SAME MEDICATIONS AND MANY OTHERS ENTIRELY UNRESTRICTED WHEN USED FOR ANY OTHER PURPOSE EVEN WHEN THOSE USES PREVENT SIMILAR RISKS. THE SIXTH CIRCUIT NEVER CONSIDERED WHETHER TENNESSEE COULD JUSTIFY THAT SEX-BASED LINE BECAUSE THE EQUAL PROTECTION CLAUSE REQUIRES MORE, THIS COURT SHOULD REMAND SO THAT SB 1 CAN BE UNDER THE CORRECT STANDARD. I WELCOME THE COURT'S QUESTIONS. 

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HT: Kim Krawiec

 

Medpage Today summarized the hearings under this headline:

Supreme Court Appears Likely to Uphold Bans on Transgender Care for Minors
— Justices' decision is not expected for several months

Trans as a gender identity

 New freedoms continue to be recognized.

It is not so long ago that sexual orientation and then same sex marriage were at the forefront of the cultural clash between individual rights and freedoms, and social repugnance.  Those battles aren't over, but the rights of individuals to love who they love have won important legal and cultural battles.

Lately, sexual identity is drawing increasing attention, with a growing recognition that some people's brains aren't wired the way their genitalia would suggest.  Two articles in the NY Times help (me at least) to understand some of the issues.

The first is written under a pseudonym by the mom of a transgender child, who notes that many people are trans starting as young children.  The second, by a trans man, argues that we should think of transgender a a gender identity of its own, not as a transition from one traditional gender to another. 

Where in the World Are All the Trans Children? Everywhere. By Marlo Mack

"I learned that while many transgender people do not transition until adolescence or adulthood, significant numbers of young children are aware of their gender identity from a very young age. Dr. Kristina Olson, a psychologist at Princeton University who studies gender development in children, says, “Research shows that there are a set of trans people who first identify with their gender by the toddler or preschool years and continue to do so throughout their lives.”

...

"But if transgender children are a global phenomenon, so are their struggles. Just as in the United States, parents who have spoken publicly are often harassed and threatened. (For safety reasons, I am not naming them.) Nearly all saw relationships with friends and family members disintegrate when their children came out as trans. Several families immigrated to countries that felt safer for their children. “When my daughter is older,” said one mother who left Mexico for the United States, “I’ll tell her the real reason we left.”

"These kinds of moves are likely to become more common, as courts and legislatures around the United States and in other countries chip away at transgender rights, restricting access to gender-affirming (and lifesaving) medical care for children like mine. On my social media feed, parents around the world are asking one another: Where can we go now? Where will my child be safe?

"It is not always easy to stay hopeful while raising a transgender child in a world that so rarely chooses to welcome her. I wonder what I would do if my own state passed a law making her medical care illegal. I worry about where she will be able to live and travel safely when she is older. I worry about the children who live in places where being transgender remains a crime.

"Yet I am hopeful, because I have witnessed the ferocious, protective love of parents around the world. And that is not a liberal Western fad."

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What I Saw in My First 10 Years on Testosterone  By Thomas Page McBee

"I also wanted it known that despite the media fixation on a trite narrative about what it meant to be trans, I was not “a man trapped in a woman’s body or any cliché like that,” as I emailed my friends and family. I was a man and I was born trans, and I could hold both of those realities without an explanation that could be written on the back of a napkin.

“I will not become a different person,” I wrote in that email, defiantly and, as it turns out, correctly. “I am myself. I just want to feel more like me.”

New legislation expressing repugnance to gender transition

 Trans people are facing new obstacles from state legislatures, concerning sports teams, healthcare, and toilets.  Here's a story from the Guardian.

Mapping the anti-trans laws sweeping America: ‘A war on 100 fronts’. In an extraordinary attack on trans rights, conservative state lawmakers proposed more than 110 anti-trans bills this year  by Sam Levin

"On the first day of Pride month, the governor of Florida, Ron DeSantis, signed a law banning transgender girls from participating on girls’ sports teams in middle school through college.

"It was just one of 13 anti-trans bills conservative lawmakers in the US passed this year, and one of more than 110 bills that were proposed – by far the largest number in US history.

...

The most common anti-trans proposals were focused on sports, many of them specifically seeking to ban trans girls from competing on girls’ teams.

...

"The bulk of the other anti-trans bills sought to outlaw gender-affirming healthcare, with at least 36 proposals related to medical treatments across 21 states.

"In April, Arkansas passed the first ban on affirming healthcare for youth, with a policy that threatens to discipline or revoke the licenses of doctors who provide it. Experts and clinicians had strongly objected, arguing that the state was prohibiting care that is considered standard and best practice, and advocates said it was one of the most extreme anti-trans bills to ever be enacted.

...

"Five states also considered anti-trans bathroom bills, with Tennessee ultimately passing two separate laws. One prohibits trans kids from using bathrooms and locker rooms at school that match their gender. Another requires that if businesses allow trans people to use the correct bathrooms, they have to post a sign that says, “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

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And elsewhere (from the WSJ):

Hungary Bill to Restrict How Media Depicts Homosexuality, Transgender Rights. Legislation restricts content depicting individuals who are gay or who no longer identify with the gender they were assigned at birth  By Drew Hinshaw

"The bill—which prompted thousands of protesters to throng the capital of Budapest on Monday—is part of a wider battle within Europe, as a small camp of Central and Eastern European governments, led mainly by socially conservative nationalists, pass legislation aimed at slowing the rising acceptance of gay and transgender rights on the continent.

The region, along with neighboring Russia, has seen a series of laws and government-backed measures similar to the bill passed in Hungary. In 2013, Russia’s parliament unanimously passed a federal law banning the dissemination of “propaganda of non-traditional sexual relations” among minors.

"More recently, nearly 100 local governments in Poland declared themselves “Free from LGBT Ideology,” with signs posted around small towns that read “LGBT Free Zone.” Those moves prompted the EU to cancel some funding that would have gone to infrastructure and economic development in those parts of Poland.

"Last year, Romania’s parliament adopted a bill, later scrapped by a high court, restricting schools and colleges from teaching that “gender is a concept different to biological sex.”

The demand for a uterus transplant among transgender women (a survey study)

 A couple of years ago I gave a Department of Surgery Grand Rounds (a dawn seminar) at Stanford. Much later in the day, at dinner with transplant surgeons and others, someone asked me what other kinds of work I did.  So I started to tell them about my work on repugnant transactions and controversial markets, and used surrogacy as my main example. I pointed out that Sweden, where surrogacy is illegal, had pioneered uterus transplantation as an alternative that worked for some. But I suggested it wouldn't work for same-sex male couples, who are among those who use the well established legal market for surrogates in California.  The conversation quickly turned to why I was wrong.  As I recall what they said, the uterus is just a muscle, so could be transplanted into a man. Ovaries would be a problem, so in-vitro fertilization (IVF) would be needed to start the pregnancy, and of course the baby would have to be delivered via a C-section...

Since then, uterus transplantation has become somewhat more widespread, from both living and deceased donors.  As far as I know, no one is actually proposing to transplant a uterus into a man--for one thing, the demand may not be there.  But that's not the case with another group of people born without a uterus, namely transgender women.

Here's a recent survey from JAMA on just that, which shows that in fact there are transgender women who are open to bearing a child through a uterus transplant:

Jones BP, Rajamanoharan A, Vali S, et al. Perceptions and Motivations for Uterus Transplant in Transgender Women. JAMA Netw Open. 2021;4(1):e2034561. doi:10.1001/jamanetworkopen.2020.34561

"Key Points

"Question  What are the perceptions and motivations of transgender women for uterus transplant?

"Findings  This survey study of 182 transgender women found that to more than 90% of the respondents indicated that uterus transplant may improve quality of life in transgender women, alleviate dysphoric symptoms, and enhance feelings of femininity.

"Meaning  This report on the desire and willingness of transgender women to undergo uterus transplant may support the need for further animal and cadaveric model research, which is necessary to assess the feasibility of performing this procedure in transgender women"

Repugnance watch: Hungary moves to roll back legal recognition of transsexuality

The covid-19 pandemic has allowed a consolidation of authoritarian power in Hungary, as also elsewhere, which can take some odd forms.

The Guardian has the story:

Hungary prepares to end legal recognition of trans people
Trans people fear more discrimination as Orbán pushes through law defining gender based on ‘sex at birth’

"Hungary’s rightwing government looks likely to push through legislation that will end the legal recognition of trans people by defining gender as “biological sex based on primary sex characteristics and chromosomes” and thus making it impossible for people to legally change their gender.
...
"“In Hungary, you need to show your ID to rent a bike, buy a bus pass or to pick up a package at the post office. It basically means coming out as trans to complete strangers, all the time. The good version is they are nice about it, but there are situations where people turn quite hostile,” said Ivett Ördög, a 39-year-old trans woman living in Budapest."
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Here's the background story:
Hungary seeks to end legal recognition of trans people amid Covid-19 crisis

"The Council of Europe’s commissioner for human rights, Dunja Mijatović, called on Hungary’s parliament not to adopt the law, and said the measure was in contravention of human rights standards and the case law of the European court of human rights."

Boy scouts reverse their position and accept transgender boys

That was fast. After the Cub Scouts recently expelled a transgender boy, the NY Times reports Boy Scouts, Reversing Century-Old Stance, Will Allow Transgender Boys

"Reversing its stance of more than a century, the Boy Scouts of America said on Monday that the group would begin accepting members based on the gender listed on their application, paving the way for transgender boys to join the organization.

“For more than 100 years, the Boy Scouts of America, along with schools, youth sports and other youth organizations, have ultimately deferred to the information on an individual’s birth certificate to determine eligibility for our single-gender programs,” the group said in a statement on its website. “However, that approach is no longer sufficient as communities and state laws are interpreting gender identity differently, and these laws vary widely from state to state.”

The announcement, reported on Monday night by The Associated Press, reverses a policy that drew controversy late last year when a transgender boy in New Jersey was kicked out of the organization about a month after joining.

“After weeks of significant conversations at all levels of our organization, we realized that referring to birth certificates as the reference point is no longer sufficient,” Michael Surbaugh, the Scouts’ chief executive, said in a recorded statement on Monday.

The announcement came amid a national debate over transgender rights, with cities and states across the nation struggling with whether and how to regulate gender identity in the workplace, in restrooms and at schools.

In recent years, the Boy Scouts of America has expanded rights for gay people. In 2013, the group ended its ban on openly gay youths participating in its activities. Two years later, the organization ended its ban on openly gay adult leaders."

Repugnance watch: Gender identity. 8-year-old transgender boy barred from Cub Scouts in NJ and NYC issues an "intersex" birth certificate,

Two (otherwise unrelated) recent news stories suggest that social attitudes towards gender identity may be tested in the new year in ways that resemble the transformation that has taken place in our collective outlook on sexual orientation.

The first story concerns the cub scouts.  It happened in Secaucus, NJ, and NorthJersey.com has a report: 8-year-old transgender boy barred from Cub Scouts

"From the moment he joined, 8-year-old Joe Maldonado eagerly looked forward to camping trips and science projects as a member of the Cub Scouts. But his expectations were dashed after his mother said she received a phone call from a Scouting official who told her that Joe would no longer be allowed to participate because he was born a girl.

"Kristie Maldonado said she was stunned because her son had been a member of Cub Scout Pack 87 in Secaucus for about a month and his transgender status had not been a secret. But some parents complained, an official from the Northern New Jersey Council of Boy Scouts told her — even though her son had been living as a boy for more than a year and was accepted as a boy at school, she said
...
"Joe's case could be the first time someone has been barred from participating in Scouting because of transgender identity, said members of the LGBT community. And it comes as the Boy Scouts of America appeared to be emerging from a period of turmoil involving sexual-orientation issues, reversing long-standing bans against gay Scouts and gay Scouting leaders over the past few years. Those policy changes were made amid an internal debate that saw at least one local council defy national Scouting decrees by hiring a gay camp counselor and pressure brought from corporations that withheld donations from the organization.

"The Boy Scouts did not address the transgender issue at the time, LGBT advocates said, perhaps because the organization had no written policy related to gender identity. Transgender rights only recently emerged as a national issue, often focusing on the use of restrooms based on gender identity. Dozens of North Jersey school districts, including Secaucus, have granted that right, among others, to transgender students.
...
"Effie Delimarkos, the communications director for the Boy Scouts of America, said in a statement that the organization’s Cub Scouts programs are for boys age 7 to 10 and that "the classification on the participant’s birth certificate” would be used to “confirm legal status.”
...
"Delimarkos said in her statement that the Boy Scouts consider membership for transgender children to be a separate issue from that of gay children.

“No youth may be removed from any of our programs on the basis of his or her sexual orientation,” she said, but added: “Gender identity isn’t related to sexual orientation.”
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The second story concerns a newly reissued birth certificate issued by the New York City Department of Health and Mental Hygiene (DOHMH):
Nation's First Known Intersex Birth Certificate Issued in NYC

"On Tuesday, 55-year-old Sara Kelly Keenan received something in the mail she's been waiting for her entire life: an accurate birth certificate.

Keenan was born intersex, with male genes, female genitalia and mixed internal reproductive organs. Now, Keenan, who uses female pronouns, is making history. Hers is believed to be the first birth certificate ever issued in the United States that reads "intersex" in the gender field, instead of "male" or "female."