LET THEM BE CHILDREN: HOW THE LAW SHOULD SUPPORT PARENTS IN PROTECTING THEIR CHILDREN FROM THE HARMFUL EFFECTS OF GENDER-AFFIRMING TREATMENT.

• Author: Bihar, Claudia

INTRODUCTION

As of July 2022, twenty-one states have introduced thirty bills restricting minors from accessing transgender-related treatment, while thirty-one bills were introduced in 2021 alone. (1) These bills have become law in only three states, with Arizona only banning surgical procedures for minors and Arkansas and Alabama remaining temporarily blocked by federal judges. (2) While these outright bans are being hotly contested and are receiving a large amount of attention, (3) a similar issue has been left mostly undisturbed: What happens when parents and minors disagree on whether the child should undergo gender-affirming treatment? (4)

Several states, including Minnesota, Washington, Oregon, and California, have laws allowing minors as young as thirteen to direct their own mental health care--including gender-affirming care--and leaving parents powerless to intervene. (5) In Washington, a thirteen-year-old child is entitled to receive mental health and gender-affirming care under a parent's insurance without parental consent or even knowledge. (6) Oregon passed a law in 2015 permitting minors fifteen and older to obtain puberty blockers, cross-sex hormones, and surgeries at taxpayers' expense all without parental permission. (7) In 2018, a similar bill giving all children in foster care, aged twelve and older, the right to access gender-affirming treatment was passed in California. (8) And in September of 2021, California signed a bill sponsored by Planned Parenthood which bars health insurers from disclosing to parents any "sensitive services"--now including gender-affirming care--received by their minor dependents. (9)

One of the reasons why the issue of medical treatment for transgender minors is attracting so much attention is the public's realization that there have been no laws restricting the use of puberty blockers, cross-sex hormones, or even a standard minimum age for such treatment. (10) This raises serious questions of what the harmful effects of hormonal treatment on children are, whether they are based on sound scientific research, what treatment best serves the interests of a child suffering from gender dysphoria, and what is the role of the legislatures and courts in protecting children from unwarranted diagnoses and harmful therapy. (11) Because children cannot fully understand the permanent consequences of their decisions, the rights of parents to make medical decisions in the best interest of their child should be protected. (12)

This Note will begin by introducing the general background of what gender dysphoria is, how gender-affirming medical treatments--such as puberty blockers, cross-sex hormones, and sex reassignment surgery--are used to treat gender dysphoria in children, and what physical and psychological risks are involved. Next, the Note will discuss the history of parents' substantive due process rights to direct their children's upbringing, its natural extension to children's medical treatment, and its existing limits in the medical context and in other contexts where parental consent is circumvented. Third, this Note will look at the case law and argue how these existing methods should not be extended to minors seeking gender-affirming care and how any law that arbitrarily takes away parents' rights to direct their children's medical care is unconstitutional under the Fourteenth Amendment.

1. AN OVERVIEW OF THE MEDICAL TREATMENT FOR GENDER DYSPHORIA AND THE RISKS IT POSES

   Gender dysphoria refers to the "psychological distress" that results from an individual's biological sex not matching their gender identity, that is, the individual's "psychological sense of their gender." (13) Rather than being based on sound, scientific proof, the causes of gender dysphoria are still being researched (14) and proper treatment of patients who suffer from it is highly experimental. (15) There is serious disagreement within the medical community that the benefits of physical intervention on the bodies of children to "reassign" their sex is supported by research. (16) In fact, research shows a heightened risk of serious, adverse side effects for recipients of sex reassignment procedures as opposed to those who are reaffirmed in their biological sex. (17) Especially when dealing with minors, parents should be wary about the unethical nature of interfering with their children's natural, healthy development at a time when they are most vulnerable. (18)

   1. Science Does Not Support Invasive Physical Intervention to Treat Gender Dysphoria

      Dr. Paul McHugh, former chief of psychiatry at John Hopkins Hospital, co-authored a peer-researched report on the mental issues faced by the LGBTQIA+ community. (19) In his report, Dr. McHugh explains that the underlying basis of what makes a person male or female is his or her distinct roles in the reproductive system, rather than the atypical behaviors exhibited by members of a sex. (20) Gender is not "entirely detached from the binary of biological sex," because a person's entire physiology is defined by his or her sexual chromosomes, hormones, brain function, and anatomy of their reproductive role. (21) Defining a person based on the "unique combination of characteristics" that person has would encompass a plethora of attributes and traits, causing gender to be defined too broadly and rendering the distinctions meaningless. (22)

      Basing an individual's identity on binary sex roles allows for a stable, reliable definition of gender rooted in biology and makes them easily identifiable, even when these individuals behave in ways that are atypical of males and females. (23) Hence, "the only variable that serves as the fundamental and reliable basis" (24) to determine an individual's sex is the individual's biological reproductive role--otherwise, all that is left are stereotypes. (25) The fact that some individuals experience incongruence between their biological sex and their gender identity does not change their biological nature. (26) Thus, a person struggling to line up his or her gender identity, "a more subjective attribute," (27) with his or her biological sex is understood to have a mental disorder rather than a physical one.

      The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5), in code 302.85, defines gender dysphoria as "[a] marked incongruence between one's experienced/expressed gender and assigned gender" that "is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning." (28) This definition differs significantly from the earlier DSM-4 version--which used the term gender identity disorder--because it added the requirement that the patient experience "clinically significant distress or impairment." (29) The main difference between the two versions is that the DSM-4 definition was used as a psychiatric diagnosis, recognizing gender identity confusion as a mental disorder requiring clinical treatment, while the new DSM-5 definition of gender dysphoria instead diagnoses only the distress caused by gender identity confusion and thus frames treatment in light of gender-affirming conduct based on subjective experiences. (30) This shift in diagnosis weakens the medical requirements for a mental health disorder because it is no longer based on a consistent reliable diagnosis. (31)

      Because the definition of gender dysphoria is vague and confusing, it leads to many inconsistent diagnoses. (32) For example, there may be people who are transgender but who do not suffer from gender dysphoria because the incongruence does not cause them to experience significant psychosocial distress. (33) Conversely, some individuals who do not identify with a gender that opposes their biological sex may still struggle with gender identity based on accepted social norms. (34) A major concern is that individuals who express incongruence between their gender identity and biological sex, are often misdiagnosed and given clinical interventions, which previously were reserved only for psychiatric disorders. (35) Moreover, such diagnoses and treatments do not account for individuals who express a desire to identify as members of the opposite sex due to anxiety, depression, or other mental health issues unrelated to gender dysphoria. (36) Alarmingly, there is an increasing amount of clinical research showing evidence of an association between children and adolescents with gender dysphoria and autism spectrum disorder; possibly because, as one such study notes, a symptom of autism can be "intense, obsessive interests on a gender-specific theme." (37)

      In the context of children, the DSM-5 criteria for gender dysphoria are even more troublesome. (38) Although the "clinically significant distress" is still part of the diagnosis, other criteria for gender dysphoria include "a strong preference for toys, games or activities stereotypically used or engaged in by the other gender." (39) This additional criteria is scientifically unsound and simply fails to account for the fact that a child can display a preference towards a gender that is incongruent with that child's biological sex without ever identifying with that opposite gender. (40) The diagnosis of gender dysphoria is unreliable even for children who do identify as a gender opposite to their biological sex. (41) Children simply lack the ability to rationalize socially acceptable gender roles, which may lead to psychological difficulties in identifying with their biological sex. (42)

      Incongruence between gender identity and biological sex has also been linked to traumatic childhood experiences, which have caused children to disassociate with members of a sex. (43) Unfortunately, there has been little development of alternative treatments to address the possibility that these children are suffering from trauma, rather than true gender incongruence, (44) since transgender healthcare does not focus on...