First, Do No Harm: Prioritizing Patients Over Politics in the Battle Over Gender-affirming Care

• Publication year: 2023

First, Do No Harm: Prioritizing Patients Over Politics in the Battle Over Gender-Affirming Care

Greg Mercer
gmercer1@student.gsu.edu

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FIRST, DO NO HARM: PRIORITIZING PATIENTS OVER POLITICS IN THE BATTLE OVER GENDER-AFFIRMING CARE

Greg Mercer^*

Abstract

The medical community's move to reclassify gender dysphoria as a condition that results in distress rather than a mental disorder has been instrumental in destigmatizing transgender people. However, state laws that aim to strip physicians of their ability to prescribe gender-affirming care, along with physicians' refusal to comply with federal regulations requiring access to gender-affirming care, threaten to undo those gains. Opponents of gender-affirming care attempt to wield the concept of medical judgment as both a sword and a shield—preventing physicians from exercising their medical judgment to provide gender-affirming care while simultaneously allowing physicians to abstain from providing it. Although the available research does not point to any one specific mode of treatment that is perfect for everyone, there is a consensus in the medical community that family acceptance and access to care are critical for the mental health of children experiencing gender dysphoria. Although lawmakers should ultimately leave a patient's specific course of treatment to physicians who specialize in gender-affirming care, the

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legal community can still play a vital role by removing barriers that limit access to care.

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CONTENTS

Introduction.................................................................................482

I. Background.............................................................................488

A. On the Basis of Sex: The 2016 Rule..................................488
B. Sudden Policy Reversals: The 2020 Rule..........................490
C. Unexpected Consequences: Bostock v. Clayton County .. 492
D. Judicial Irony: The Current Rule......................................494

II. Analysis...................................................................................495

A. Irreparable Harm: Brandt v. Rutledge..............................496

1. Equal Protection Claim...............................................498
2. Due Process Claim.......................................................503
3. First Amendment Claim...............................................505

B. Battle Of the Experts: Precedent.......................................506
C. Compulsion: American College of Pediatricians v. Becerra ............................................................................................507

III. Proposal.................................................................................510

A. Universally Rejected: Ban Conversion Therapy Nationwide ............................................................................................511
B. Wedge Issue: Fostering Care Through Parental Support. 514

Conclusion....................................................................................518

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Introduction

In 2007, Barbara Walters, co-anchor of the ABC News television series 20/20, introduced the world to six-year-old Jazz Jennings.¹ Assigned male at birth, Jazz was reported to be "one of the youngest people ever to be diagnosed with gender dysphoria."² Unlike many parents of transgender youth, Jazz's mother and father supported her transition to the gender with which she identified "and allowed her to start transitioning from male to female while she was only in kindergarten."³ Since that initial interview, Jazz has continued to inspire transgender children across the nation by writing a children's book based on her life, starring in her own reality TV show, and advocating for transgender people's rights on YouTube and Instagram.⁴ She has been called the "the public face of transgender

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children" and a "beacon" for the transgender community.⁵ Gay & Lesbian Alliance Against Defamation (GLAAD) president Sarah Kate Ellis believes "Jazz has actually saved lives" by "humaniz[ing] trans[gender] people by telling her story in a really positive, affirming way" that shows transgender youth they "can be happy, healthy, and accepted."⁶

The sharp increase in the number of teens seeking treatment at gender clinics since 2000, along with a rise in the number of females first showing signs of gender dysphoria during adolescence, has led some researchers to question the role "social influences" are playing in these two emerging trends.⁷ Although researchers note that the overall destigmatization of transgender individuals may explain the increase in the total number of adolescents seeking care, they do not believe it fully explains the "inversion of the sex ratio," where more natal females than natal males are now transitioning.⁸

In 2018, Dr. Lisa Littman, a physician and former professor at the Brown University School of Public Health, surveyed the parents of adolescent and young adult girls who, despite showing no signs of

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gender dysphoria before puberty, had recently come out as transgender.⁹ The parents reported that their children's onset of gender dysphoria followed an increased use of social media and appeared to coincide with their peers also coming out as transgender.¹⁰ The results of her study led Dr. Littman to hypothesize that, for some teens, social and peer contagion may produce a type of "rapid-onset gender dysphoria" (ROGD) distinct from the gender dysphoria that presents itself during early childhood or adolescence.¹¹

Dr. Littman's controversial study drew immediate criticism, prompting the study's publisher, PLOS ONE, to issue a correction clarifying that ROGD "is not a formal mental health diagnosis at this time."¹² Additionally, the publisher cautioned that ROGD "should not be used in a way to imply that it explains the experiences of all gender dysphoric youth nor should it be used to stigmatize vulnerable individuals."¹³ The World Professional Association for Transgender Health (WPATH), an organization that establishes international standards of care for the clinical treatment of gender dysphoria, issued its own statement highlighting that no major professional association recognized ROGD and warning physicians to "restrain[] from the use of any term" that may "instill fear" and foreclose prescribing gender-affirming treatment options.¹⁴ Moreover, WPATH "encourage[d]

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continued scientific exploration" noting "that knowledge of the factors contributing to gender identity development in adolescence is still evolving and not yet fully understood by scientists."¹⁵

Instead of heeding WPATH's warning to not limit treatment options, Conservative lawmakers have seized upon the perceived admission that the science is "evolving" to propose legislation restricting transgender minors' access to gender-affirming care.¹⁶ In 2020, Fred Deutsch, a member of the South Dakota House of Representatives, proposed a bill that "stops children from being mutilated" by "so-called doctors" prescribing gender-affirming care.¹⁷ In an interview with Tony Perkins, president of the Family Research Council, Deutsch explained that his motivation for the bill, which makes prescribing "[p]uberty-blocking medication to stop normal puberty" to anyone under the age of sixteen a Class 1 misdemeanor, stemmed from the emotions he felt after seeing internet photos of transgender people proudly showing off their surgery scars.¹⁸ He called the procedures that produced the scars "a crime against

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humanity" and compared them to atrocities committed by the Nazis during World War II: "I've had family members killed in Auschwitz. And I've seen the pictures of the bizarre medical experiments. I don't want that to happen to our kids. And that's what's going on right now."¹⁹

The South Dakota legislature never passed Representative Deutsch's bill.²⁰ To date, only Alabama and Arkansas have passed legislation banning all forms of gender-affirming care for minors.²¹ Passage of Arkansas's law required overriding Republican Governor Asa Hutchinson's veto.²² Purported to protect "the health and safety of its citizens, especially vulnerable children," the Arkansas Save Adolescents From Experimentation (SAFE) Act makes it illegal for physicians to act in accordance with their medical judgment by providing gender-affirming care to minors or referring their transgender patients to physicians who do.²³ A federal judge temporarily blocked the law from being enforced after the American Civil Liberties Union (ACLU) successfully challenged it in court.²⁴ In August 2022, a three-judge panel of the Eighth Circuit Court of

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Appeals upheld the preliminary injunction.²⁵ Testimony for the nation's first trial contemplating the constitutionality of states' efforts to ban gender-affirming care began on October 17, 2022.²⁶ As of this writing, the outcome is unknown.

Conservative lawmakers are not the only ones capitalizing on the "evolving" science of gender dysphoria to limit transgender minors' access to healthcare. In 2021, the American College of Pediatricians, a national organization of pediatricians and other healthcare professionals, and the Catholic Medical Association, the largest association of Catholic individuals in healthcare, sued the United States Department of Health and Human Services (HHS).²⁷ The lawsuit argued that HHS's requirement that physicians receiving federal funding "treat individuals consistent with their gender identity" and provide the same services to a transgender patient that they would provide to a cisgender patient forces their members to "act against their medical judgment."²⁸ In July 2022, HHS filed a motion to dismiss the case, arguing the plaintiffs lacked standing and their claims were unripe or moot because HHS had yet to enforce the law.²⁹ As of this writing, no hearing date has been set in that case.

This Note explores the dangerous consequences that occur when patients'...