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LGBT Rights

“Made to Feel Broken”: Ending Conversion Practices and Saving Transgender Lives

The past year has witnessed an unprecedented, coordinated campaign by state governments to deny gender-transition care to trans-gender youth. On April 6, 2021, Arkansas became the first state in the country to ban such care.1×1. Devan Cole, Arkansas Becomes First State to Outlaw Gender-Affirming Treatment for Trans Youth, CNN (Apr. 6, 2021, 6:56 PM), https://www.cnn.com/2021/04/06/politics/arkansas-transgender-health-care-veto-override [https://perma.cc/82YM-2Q8E]; Press Release, ACLU, ACLU Sues Arkansas over Ban on Health Care for Transgender Youth (May 25, 2021), https://www.aclu.org/press-releases/aclu-sues-arkansas-over-ban-health-care-transgender-youth [https://perma.cc/C3FD-SSMC]; see also Healthcare Laws and Policies: Medical Care Bans, Movement Advancement Project (Oct. 25, 2022), https://www.lgbtmap.org/equality-maps/healthcare_laws_and_policies/youth_medical_care_bans [https://perma.cc/B856-E54D]. On May 18, 2021, Tennessee prohibited medical providers from providing hormone therapy to “prepubertal minors” (who are not even eligible for hormone therapy, reflecting the state’s lack of knowledge about this area of medical care). Orion Rummler, Tennessee Becomes Second State to Pass Bill Limiting Medical Care for Trans Minors, AXIOS (May 18, 2021), https://www.axios.com/2021/05/19/tennessee-trans-minors-health-care [https://perma.cc/FF8D-VZB5]; see World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 18 (7th ed. 2012) [hereinafter WPATH Standards], https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English.pdf [https://perma.cc/2CQS-7SY6]; see also Susan D. Boulware et al., Biased Science: The Texas and Alabama Measures Criminalizing Medical Treatment for Transgender Children and Adolescents Rely on Inaccurate and Misleading Scientific Claims 3 (Apr. 28, 2022) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4102374 [https://perma.cc/L6U2-6TA7] (stating that Texas Attorney General’s opinion letter regarding gender-transition care “falsely implies that puberty blockers and hormones are administered to prepubertal children, when, in fact, the standard medical protocols recommend drug treatments only for adolescents (and not prepubertal children)”). On February 18, 2022, Texas Attorney General Ken Paxton issued a nonbinding opinion that mischaracterized gender-transition care for transgender youth as “child abuse,” and Governor Greg Abbott subsequently ordered the Department of Family and Protective Services to initiate investigations into the parents of transgender youth.2×2. Letter from Greg Abbott, Governor of Texas, to Jaime Masters, Comm’r, Texas Dep’t of Fam. & Protective Servs. (Feb. 22, 2022), https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf [https://perma.cc/X6KP-84LJ] (stating that “Texas law . . . imposes a duty on [the Texas Department of Family and Protective Services] to investigate the parents of a child who is subjected to” gender-transition care); Boulware et al., supra note 1 (manuscript at 1). On March 30, 2022, Governor Doug Ducey of Arizona signed legislation banning gender-transition surgery for minors.3×3. Devan Cole, Arizona Governor Signs Bill Outlawing Gender-Affirming Care for Transgender Youth and Approves Anti-trans Sports Ban, CNN (Mar. 30, 2022, 5:35 PM), https://www.cnn.com/2022/03/30/politics/arizona-transgender-health-care-ban-sports-ban [https://perma.cc/YFT9-FK86]. On April 8, 2022, Governor Kay Ivey of Alabama signed legislation criminalizing transitioning medications for transgender youth.4×4. Rick Rojas, Alabama Governor Signs Ban on Transition Care for Transgender Youth, N.Y. Times (Apr. 8, 2022), https://www.nytimes.com/2022/04/08/us/alabama-transgender-law-ivey.html [https://perma.cc/Y7G3-B79J]. And on June 2, 2022, Governor Ron DeSantis of Florida requested that the state board regulating physicians ban gender-transition care for transgender youth.5×5. Marc Caputo, DeSantis Moves to Ban Transition Care for Transgender Youths, Medicaid Recipients, NBC News (June 2, 2022, 8:55 PM), https://www.nbcnews.com/politics/politics-news/desantis-moves-ban-transition-care-transgender-youth-medicaid-recipien-rcna31736 [https://perma.cc/XTQ2-6JZY]; see also Arek Sarkissian, Florida Medical Board Moves to Block Gender Affirming Treatments for Minors, POLITICO (Aug. 5, 2022, 7:00 PM), https://www.politico.com/news/2022/08/05/florida-gender-affirming-medical-treatment-ban-00050174 [https://perma.cc/CR56-R6H9] (discussing Florida medical board’s decision to begin the process of banning gender-transition care for youths).

Since 2021, legislatures in at least twenty-two states have introduced bills to ban medical care for transgender youth, with thirteen states seeking to criminalize such care6×6. LGBTQ Policy Spotlight: Efforts to Ban Health Care for Transgender Youth, Movement Advancement Project (Apr. 2021), https://www.lgbtmap.org/2021-spotlight-health-care-bans [https://perma.cc/Q84J-7U6R]. and at least one state seeking to classify such care as child abuse as the Governor of Texas did.7×7. Kerith J. Conron et al., Williams Inst., Prohibiting Gender-Affirming Medical Care for Youth 3 (2022), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Youth-Health-Bans-Mar-2022.pdf [https://perma.cc/9XMV-4MF5]. In addition to these flagrant efforts to deprive transgender youth of health care, numerous states have denied gender-transition health care to less visible constituencies, including denying gender-transition health care coverage to state and county employees,8×8. Healthcare Laws and Policies: Medical Care Bans, supra note 1. recipients of Medicaid,9×9. Id. and people incarcerated in state correctional facilities.10×10. See Jennifer Levi & Kevin M. Barry, Transgender Rights & the Eighth Amendment, 95 S. Cal. L. Rev. 109, 130–47 (2021).

Banning Transgender Conversion Practices: A Legal and Policy Analysis

By Florence Ashley. Vancouver, B.C.: University of British Columbia Press. 2022. Pp. xiii, 249. $32.95.

The recent wave of denials of gender-transition care to youth is rooted in the century-old pseudoscience of conversion practices, which seek to change a person’s gender identity or sexual orientation.11×11. See Christy Mallory et al., Williams Inst., Conversion Therapy and LGBT Youth: Update 2 (2019), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-Update-Jun-2019.pdf [https://perma.cc/3CLX-RB8R]. These practices, which are at the heart of Florence Ashley’s book, Banning Transgender Conversion Practices: A Legal and Policy Analysis, are among the oldest and most extreme forms of denying appropriate medical care to transgender people (pp. 10–11).12×12. Boulware et al., supra note 1 (manuscript at 12 n.37); see Mallory et al., supra note 11, at 2 (referencing the roots of conversion practices dating back to the late nineteenth century); Eli Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. Transgender Health S1, S20 (2022) [hereinafter WPATH Standards Version 8]. Conversion practices often go by other names, such as “conversion therapy” or “reparative therapy” (pp. 30–31). Because “therapy” connotes the safe and effective treatment of an illness or injury, it does not accurately describe conversion practices, which, for the reasons discussed below, are harmful and ineffective, and target healthy identities. See infra pp. 1125–32. Like state laws banning gender-transition care for youth, conversion practices are predicated on the belief that being transgender and seeking supportive medical care is abnormal (pp. 10–11).13×13. See also Mallory et al., supra note 11, at 1. And like the medical-care bans, conversion practices brutalize transgender youth — the former, by leaving youth with no way to resolve the conflict between their gender identity and their assigned sex, and the latter, by imposing harmful and scientifically invalid techniques in place of medically necessary, evidence-based care.14×14. See WPATH Standards Version 8, supra note 12, at S20 (“Gender identity change efforts . . . cause harm to [transgender and gender-diverse] people, and (like efforts targeting sexual orientation) are considered unethical. These efforts may be viewed as a form of violence.” (citations omitted)); Boulware et al., supra note 1 (manuscript at 12) (discussing well-documented “harm of not providing gender-affirming care”). The well-established medical consensus is that gender-transition care is medically necessary and safe and that conversion practices are ineffective and harmful, creating psychological distress and prompting suicide.15×15. See Boulware et al., supra note 1 (manuscript at 12–15). Not surprisingly, some of the purported medical experts that states rely on to defend youth medical bans also support conversion practices.16×16. See Meredithe McNamara et al., A Critical Review of the June 2022 Florida Medicaid Report on the Medical Treatment of Gender Dysphoria 6–9 (2022), https://medicine.yale.edu/lgbtqi/research/gender-affirming-care/florida%20report%20final%20july%208%202022%20accessible_443048_284_55174_v3.pdf [https://perma.cc/US4U-J2TS] (stating that purported experts who oppose transition care have undisclosed conflicts of interest and demonstrated ideological biases, including “support[ing] mental health providers practicing conversion therapy,” id. at 7).

Conversion practices encompass a range of techniques, including behavioral therapy, play psychotherapy, and parental counseling (p. 26),17×17. Historically, conversion practitioners attempted to treat LGBTQ people through other means, such as forced institutionalization, forced medication, castration, and the use of aversive conditioning, such as the inducement of nausea, vomiting, paralysis, and other punishments. See Am. Bar Ass’n, Comm’n on Sexual Orientation & Gender Identity, Section of Individual Rts. & Resps. & Comm’n on Youth at Risk, Report to the House of Delegates 1 (2015) [hereinafter ABA Resolution], https://www.americanbar.org/content/dam/aba/administrative/sexual_orientation/2015-hod-ann-mtg-doc-112.pdf [https://perma.cc/MBT4-7W38]; Nat’l Ctr. for Lesbian Rts. & Hum. Rts. Campaign, Just as They Are: Protecting Our Children from the Harms of Conversion Therapy 7 (2017) [hereinafter NCLR & HRC Report], https://www.nclrights.org/wp-content/uploads/2017/09/just-as-they-are-sept2017-1.pdf [https://perma.cc/899V-YYFP]. and they are performed “by some licensed professionals in the context of providing health care and by some clergy or other spiritual advisors in the context of religious practice.”18×18. Mallory et al., supra note 11, at 1; see also NCLR & HRC Report, supra note 17, at 8 (stating that conversion practices are “often found outside the therapist’s office . . . in pastoral counseling, in religious youth camps, in addiction treatment facilities, and in prayer and support groups”). An estimated 698,000 LGBTQ adults in the United States have undergone conversion practices either from a licensed professional or a religious advisor or both at some point in their lives, with approximately half (350,000) having undergone such practices as youths.19×19. Mallory et al., supra note 11, at 1. These practices, moreover, are not a relic of a bygone era: it is estimated that nearly 75,000 current LGBTQ youth will undergo conversion practices before they reach the age of eighteen.20×20. See id. Other estimates are much higher. See, e.g., Anna Forsythe et al., Humanistic and Economic Burden of Conversion Therapy Among LGBTQ Youths in the United States, 176 JAMA Pediatrics 493, 497 (2022) (estimating that, in 2021, 508,892 LGBTQ youth in the United States were at risk of being subjected to conversion therapy). A disproportionate number of these youths, moreover, are likely to be transgender. As Ashley notes, conversion practices appear to be more common among transgender people than nontransgender queer people, with between 13.5% and 18% of transgender people in the United States reporting being subjected to such practices (p. 13).21×21. Ashley cites Canadian studies finding that 11–19% of trans people experienced conversion practices (p. 14). See also Mallory et al., supra note 11, at 6 n.5 (noting that 6.7% of “LGB adults ages 18 to 59 . . . report having received treatment to change their sexual orientation,” compared with 13% of transgender adults who “report[ed] that one or more professionals tried to make them identify only with their sex assigned at birth or tr[ied] to stop them from being transgender”).

While much of the literature on conversion practices has focused on sexual orientation, that is, “sexual orientation change efforts,” Ashley helpfully focuses attention on transgender conversion practices (p. 175).22×22. Ashley states: “Academic scholarship, especially in law, has tended to focus on sexual orientation to the exclusion of gender. There is a dire need for more scholarship and especially legal scholarship on the matter” (p. 175). Although one may wish to dismiss these practices “as an antiquated, dying approach in a world that is rapidly growing more accepting of trans people,” Ashley warns that support for these practices has experienced a resurgence in recent years, with “[a]nti-trans voices alleg[ing] that society is in the midst of an unprecedented epidemic of youth falsely believing themselves to be transgender due to ‘social contagion’ and unexamined mental illness and trauma” (pp. 14–15).23×23. See also McNamara et al., supra note 16, at 23–25 (discussing “discredited claims that ‘social contagion’ is leading teens to become transgender,” id. at 23). Transgender conversion practices, they explain, are alive and well, and such practices continue to threaten the well-being of the transgender community (p. 16).

In recent decades, the transgender civil rights movement has sought to eliminate conversion practices to great effect. Twenty states and the District of Columbia have enacted legislation banning conversion practices for minors, with another six states and Puerto Rico partially banning such practices.24×24. Conversion “Therapy” Laws, Movement Advancement Project (Oct. 25, 2022), https://www.lgbtmap.org/equality-maps/conversion_therapy [https://perma.cc/M5F6-XL8Z]. National public opinion polls show majority support for ending the use of conversion therapy on youth; for example, a 2019 poll found that over 50% of U.S. adults across all age groups and regions, including rural, suburban, and urban areas, support a ban on youth conversion practices by mental health practitioners, and only 18% oppose such a ban.25×25. Mallory et al., supra note 11, at 2. Public opinion among the states reflects a similar trend, with recent polls in Arizona, Florida, and Pennsylvania — three states without statewide bans — finding majority support for such bans.26×26. Id. at 3. The national and international medical community, including every major medical and mental health organization, has rejected conversion practices, as have the U.S. Substance Abuse and Mental Health Services Administration and numerous human rights organizations and faith groups.27×27. See infra pp. 1130–32, 1135. Two federal courts of appeals have upheld bans in the face of constitutional challenges, and prominent providers of conversion practices have closed their doors.28×28. See infra pp. 1133–34.

Because a majority of people in the United States do not believe they know a transgender person,29×29. Rachel Minkin & Anna Brown, Rising Shares of U.S. Adults Know Someone Who Is Transgender or Goes by Gender-Neutral Pronouns, Pew Rsch. Ctr. (July 27, 2021), https://www.pewresearch.org/fact-tank/2021/07/27/rising-shares-of-u-s-adults-know-someone-who-is-transgender-or-goes-by-gender-neutral-pronouns [https://perma.cc/63DQ-UX97] (“[A]bout four-in-ten Americans (42%) say they personally know someone who is transgender . . . .”). disagreements as to the pace and breadth of transgender rights may be inevitable. Access to healthcare, however, should be a given — something everyone ought to be able to agree on. As with any law, bans prohibiting conversion practices can only do so much: politics limits their passage, and narrow drafting limits their potency (pp. 108–18). But they are lifesaving for many transgender people (p. 12) and an important predicate to the recognition of the dignity of all transgender people (p. 105).30×30. For more on the harm of conversion practices, see infra Part II, 1124–35. At a time when there exists, in Ashley’s words, “a larger social project of oppressing and discrediting trans communities” (p. 13), bans on conversion practices do exactly the opposite. They are part of the project of securing transgender health and respect.

Florence Ashley’s book is a thoughtful, thoroughly researched, and important contribution to this project. Ashley powerfully articulates why conversion practices should be banned, what those bans should look like, and why they should withstand legal challenge.31×31. Ashley discusses the harms of conversion practices (pp. 3–32), a model law for prohibiting conversion practices (pp. 130–73), and constitutional arguments supporting such laws (pp. 71–102). They also suggest additional work that remains, beyond the law, to eliminate conversion practices (pp. 108–29).32×32. Ashley discusses the limitations of legislative bans on conversion practices (pp. 103–18) and the development of a professional culture that rejects such practices (pp. 119–29). In this Review, we expand on several key arguments advanced by Ashley — highlighting our agreement, discussing some limitations, and developing several areas that they gesture toward. Part I of this Review introduces the twin concepts of transgender identity and gender dysphoria. Part II discusses the overwhelming medical consensus supporting gender-transition care and the harmfulness of conversion practices. Part III discusses the constitutionality of bans on conversion practices, and Part IV discusses the model law that Ashley proposes and its relationship to the broader social movement to eradicate conversion practices, with particular attention paid to the undertheorized “troubled teen industry.”

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* Professor, Western New England University Law School and Senior Director of Transgender and Queer Rights at GLBTQ Legal Advocates & Defenders.
** Interim Dean and Professor, Quinnipiac University School of Law.