As soon as I realized that I was not happy in my body, I went up to my parents to fix it. And it felt as natural as going up and being like, “Hey, I’m hungry.” I was just kind of like, “Hey, when’s the girl thing happening?”
— Nicole Maines, actress and transgender activist, on coming out as transgender as a child1
More than one-third of transgender high school students attempt suicide in a given year.2 This alarming statistic underscores the importance of providing transgender youth3 with access to medically necessary healthcare to bring their bodies into alignment with their gender identities.4 Fortunately, medical science and understanding have advanced such that trans youth can safely and effectively transition under the supervision of medical professionals.5 Obstacles remain, to be sure.6 But information about, and access to, gender-affirming care for trans youth is more widespread than ever before.7
Over the last few years, however, a growing political tide has threatened to reverse this progress. Gender-affirming healthcare8 for minors has become a new frontier in the culture war. In the first months of 2020 alone, legislators in at least fifteen states introduced bills that would have prohibited and, in many cases, criminalized providing gender-affirming healthcare services to minors.9 None of these bills became law.10 But the fight over gender-affirming healthcare for minors is far from over; as of January 2021, at least nine states were considering gender-affirming care bans,11 with more sure to follow, and a recent court decision in the United Kingdom effectively banning hormone treatments for trans youth under sixteen is likely to embolden the stateside opposition even further.12 This Chapter shines light on attempts to outlaw necessary gender-affirming medical treatment for minors, drawing on scientific evidence and legal doctrine to show why such legislative efforts are harmful, prejudiced, and unconstitutional. Section A will outline the current medical standard of care for trans youth and argue that access to gender-affirming care provides critical and empirically demonstrable psychological, social, and legal benefits for trans youth. Section B will describe the 2020 bills,13 critique their foundational premises, and analyze how their paternalistic narratives represent new rhetorical strategies of opposition to trans youth. Section C will offer two constitutional arguments against the bans, one based in the Equal Protection Clause and one based in parental due process rights.
The Importance of Gender-Affirming Healthcare for Trans Youth
The prevalence and availability of gender-affirming healthcare for trans youth have increased considerably since the 1990s, when transitioning before adulthood was quite rare.14 A 2017 survey found that almost two percent of American public high school students in ten states and nine large urban school districts identified as transgender,15 and although not all trans youth seek out gender-affirming healthcare, exponentially greater numbers of trans youth are pursuing this care.16 This section describes the current medical standard of gender-affirming healthcare for trans youth and explains the importance of gender-affirming healthcare to the mental and social well-being and legal recognition of trans youth.
1. The Current Standard of Care.
The purpose of gender-affirming healthcare is usually to treat gender dysphoria (“dysphoria”), or “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”17 Physical and social transition through the use of gender-affirming healthcare is clinically shown to reduce dysphoria by aligning a transgender person’s physical body and gender presentation with their gender identity.18 Thus, every major U.S. medical association recognizes that gender-affirming healthcare is medically necessary treatment for dysphoria.19
Gender-affirming healthcare for trans youth is typically admin-istered pursuant to Standards of Care published by the World Professional Association for Transgender Health (WPATH SOC), an international body of experts in transgender healthcare.20 The WPATH SOC represent the authoritative medical consensus on treatment for dysphoria in transgender people.21
The first step in gender-affirming treatment for trans youth is therapy and counseling. The WPATH SOC recommend that trans youth be diagnosed with gender dysphoria and referred by a gender therapist before they begin physical transition.22 After the initial diagnosis, gender-affirming therapists help trans youth process their gender identities and cope with distress associated with dysphoria and coexisting sources of stress, and support them in taking future steps in physical and social transition.23
Trans youth who are diagnosed with dysphoria sometimes begin hormone treatments, depending on their age and stage of physical development. Trans youth who have reached the early stages of puberty may be prescribed puberty blockers, which prevent the further progression of assigned-sex puberty and the development of associated secondary sex characteristics.24 Halting puberty is typically done to give trans youth more time to process their identity and decide whether to pursue further steps in transition,25 and to prevent irreversible physical changes that conflict with their desired gender presentation and increase dysphoria.26
Beginning at around age sixteen,27 trans youth can be prescribed hormone replacement therapy (HRT), which causes development of secondary sex characteristics associated with the trans youth’s identified gender.28 For trans girls, HRT involves suppressing endogenous testosterone and taking estrogen,29 a regimen that typically causes breast growth, softer skin, and reduction in body hair,30 while for trans boys, it involves taking testosterone,31 which typically causes muscle growth, an increase in body and facial hair, and a deeper voice.32 Some nonbinary youth also seek HRT, but there are currently no formal standards of care for nonbinary people and there is little research as to clinical outcomes outside the binary context.33 The WPATH SOC and Endocrine Society typically require parental consent before doctors may prescribe HRT to minors.34
Gender confirmation surgery (GCS), which involves changing a transgender person’s reproductive anatomy to the anatomy usually associated with their identified gender, is rarely performed for trans youth because the WPATH SOC require the patient to have attained the age of majority to be eligible for surgery.35 Additionally, insurance coverage usually requires GCS patients to be eighteen or older.36 However, GCS is not the only type of gender-affirming surgery. Transgender men may undergo surgery to remove breast tissue (“top surgery”), and the WPATH SOC allow this surgery to be performed on patients under eighteen on a case-by-case basis.37
2. Why Trans Youth Need Access to Gender-Affirming Healthcare.
Access to these gender-affirming healthcare services is essential — even lifesaving — for trans youth. There is a vast disparity in traditional measures of quality of life between trans youth with untreated dysphoria and their cisgender peers. A wealth of empirical research confirms that, although it does not erase this gap, medical transition narrows it considerably. This section summarizes the benefits of gender-affirming care for trans youth in three spheres: mental health, social acceptance, and legal rights. Although they are categorized separately for organizational purposes, these spheres often intersect and complement one another in practice.
(a) Mental Health. — Untreated dysphoria in trans youth is associated with severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.38 A study of baseline (pre-transition) psychological characteristics of trans youth revealed that twenty percent had “moderate to extreme” depressive symptoms, and that their reported rate of suicidal thoughts and attempts was at least three times higher than that of the general youth population.39 Over half reported having thought about suicide, and a third reported at least one attempt.40
Conversely, a large body of research demonstrates that trans youth who receive gender-affirming healthcare to treat their dysphoria show decreased anxiety, depression, suicidal behavior, and psychological distress,41 and increased quality of life.42 Trans children who are allowed to socially transition before puberty have relatively normal rates of depression and anxiety, “in striking contrast” with nontransitioned trans children.43 A longitudinal study of trans adolescents before and after they received gender-affirming care found that psychological functioning steadily improved throughout treatment and that overall well-being after treatment was “comparable to [that of] same-age peers.”44 And a study of transgender adults found that subjects who had received puberty blockers in childhood had a significantly lower incidence of suicidal ideation than did those who had wanted puberty blockers but did not receive them.45 Of course, gender dysphoria is not the sole cause of psychological distress and mental health problems in trans youth, nor is access to gender-affirming healthcare a panacea. But, in the words of the preeminent professional association of pediatric psychiatry in the United States, “[r]esearch consistently demonstrates that gender diverse youth . . . have better mental health outcomes” when they have access to gender-affirming healthcare.46
(b) Social Integration. — Middle school and high school are stressful for many young people, but they are often particularly difficult social environments for trans youth. Not only are trans students disproportionately bullied and alienated by their peers,47 but they may also have problems fitting in due to the frequent mental health issues associated with untreated dysphoria48 and feelings of not “belonging” with cisgender students.49 This trauma only intensifies with the onset of assigned-sex puberty, which causes trans youth to develop secondary sex characteristics (such as breasts in trans boys and facial hair in trans girls) that are inconsistent with their gender identities.50 Because of this process, trans youth who undergo assigned-sex puberty often experience decreased self-esteem and increased body image issues, which can cause further social and educational impairment.51 Physical changes from puberty may also make it harder for trans youth to “pass” as the gender with which they identify,52 meaning they are more likely to experience psychological problems53 and to face discrimination and abuse.54
Puberty blockers and HRT allow trans youth to avoid many of these challenges. Trans youth who start puberty blockers or HRT in childhood or adolescence are spared the hardships of navigating school and peer relationships while presenting as a gender with which they do not identify. Because of this relief, medically transitioned trans youth are often more confident and socially well-adjusted than their nontransitioned peers.55 Undergoing medical transition at an earlier age also allows many trans youth to “pass” more easily as their identified gender,56 and avoid many of the challenges associated with being visibly transgender.57
(c) Legal Status. — Gender-affirming medical care often mediates the availability of legal rights and protections for trans youth. Most notably, many states require medical evidence like a diagnosis of gender dysphoria, HRT, or GCS to change a transgender person’s gender on identity documents such as driver’s licenses and birth certificates.58 Misalignment between a trans youth’s gender presentation and their gender on identity documents is not an isolated indignity; it can have serious collateral consequences. For example, many colleges and universities do not allow students to use their preferred names or genders in school records if they have not legally changed them on identity documents.59
Access to gender-affirming care is also critical for many trans youth to participate in competitive school sports. The National Collegiate Athletic Association and some state high school athletic associations allow trans girls to play on girls’ sports teams only after they have taken HRT for a certain period, out of concern that their assigned sex gives them an “unfair” advantage.60 Trans boys typically do not have to meet specific medical criteria in order to play on boys’ teams,61 but in practice it will often be difficult for trans boys to compete with other boys without the physiological benefits of testosterone.62
Finally, lack of access to gender-affirming care continues to mitigate trans youths’ access to sex-segregated school bathrooms and locker rooms. The Biden Administration is expected to reinstate the Obama Administration’s 2016 Title IX guidance that required schools to allow students to use facilities consistent with their gender identities.63 Even so, there are reasons to think access to gender-affirming medical care is still relevant to determining trans youths’ access to such facilities. First, trans youth may be less comfortable coming out as transgender to their peers and school officials if they have not started medical transition. Second, school districts and courts may be more willing to accept in practice a trans student’s use of facilities consistent with their identified gender if they have provided evidence of being diagnosed with dysphoria or undergoing gender-affirming medical treatment.64
Proposed State Legislation Banning Gender-Affirming Healthcare for Trans Youth
1. Background and Legislative Context.
A custody battle in a Dallas suburb is an unlikely spark for a political brushfire. But in October 2019, a dispute in Texas family court over parental rights for a seven-year-old transgender girl ignited outrage in conservative circles.65 The girl’s father, Jeffrey Younger, petitioned for full custody based on his disagreement with her mother’s gender-affirming parenting approach, accusing the mother of “emotional abuse” for allowing the girl to express her gender identity.66 Unfolding amid a frenzy of media coverage and vocal opposition to the mother’s gender-affirming stance from conservatives,67 the Younger case shined a national spotlight on the issue of gender-affirming medical care for minors and prompted calls for legislative action from Texas Republicans.68
In truth, the Younger case and the ensuing media controversy did not begin the political movement against gender-affirming healthcare for minors so much as add fuel to a campaign already broiling within conservative lobbying groups. The Heritage Foundation, one of the most influential conservative think tanks in the United States,69 hosted a series of events on the “medical risks” of gender-affirming healthcare for trans youth at its DC headquarters throughout 2019.70 These events proved foundational to later legislative efforts; attendees at the conferences authored several of the bans,71 and a policy manager at Family Policy Alliance, a Christian conservative lobbying group that cohosted one of the Heritage events, confirmed that her organization “work[ed] with legislators all over the country” to distribute “model” gender-affirming care bans to be introduced during states’ 2020 legislative sessions.72
With help from these groups, legislators in fifteen states introduced bills between January and March 2020 banning medical professionals from providing gender-affirming healthcare to minors.73 The bills are tellingly similar in substance and language.74 Almost every bill (with some minor deviations75) bans all medical professionals in the state from administering puberty blockers or HRT to, or performing gender-affirming surgery on, anyone under the age of eighteen, with notable exceptions for minors with “medically verifiable” developmental disorders or intersex conditions.76 Most of the proposals make providing gender-affirming care a crime; on the extreme end, violation of Idaho’s prohibition is a felony punishable by a life sentence.77 Because they would prevent any state-licensed medical providers from administering gender-affirming care, the bans would effectively prohibit trans youth from accessing that care unless they were able to travel out of state. Thus, they would disproportionately burden trans youth from disadvantaged socioeconomic backgrounds and communities of color, who are less likely to have the resources to travel across state lines or to relocate for care.78
None of the fifteen bills introduced in early 2020 became law,79 al-though bills in Alabama and South Dakota passed by large margins in individual state houses.80 But the fact that no bills passed during the 2020 legislative session may not be a meaningful indication of whether they will pass in the future. The COVID-19 lockdowns in the United States in March 2020 forced many state legislatures to adjourn regular sessions before important committee votes on the bills.81 Additionally, a wave of early failures does not necessarily rule out future success; “bathroom bills” banning trans people from using public bathrooms and changing facilities consistent with their identified genders failed in at least ten states between 2013 and 201582 before North Carolina infamously passed House Bill 2 in March 2016.83 Finally, a recent High Court decision in the United Kingdom severely inhibiting administration of puberty blockers to trans youth under age sixteen is likely to invigorate opponents of gender-affirming care for trans youth in the United States.84
2. Explaining Gender-Affirming Healthcare Bans.
Legal and political battles over gender-affirming healthcare have persisted for decades,85 and are somewhat ubiquitous today.86 Nevertheless, the gender-affirming care bans deserve particular attention because they mark a subtle yet important rhetorical pivot in the broader political opposition to trans youth. To understand the larger sociopolitical significance of the gender-affirming care bans, as well as to lay the foundation for constitutional arguments against them, this section deconstructs the bans’ underlying purposes and rationales.
Some of the bills included statements of legislative purpose that provide useful starting points. For example, the Mississippi Senate bill’s “Legislative findings and intent” section states in part that “the decision to pursue [gender-affirming care] should not be presented to or determined for minors who are incapable of comprehending the negative implications and life-altering difficulties attending to these interventions.”87 Similar language subsists throughout the proposals, revealing a consistent, surface-level legislative intent to “protect” trans youth from gender-affirming medical interventions.88
This paternalistic rhetoric represents a narrative shift that has surfaced in the wake of widespread rejection of preexisting justifications for discrimination against trans youth. The most prominent political crusade against trans youth, the bathroom scare of the mid-to-late 2010s, portrayed trans youth as predatory, deviant, and mentally unstable,89 and their rights to use sex-segregated spaces as intrusions on the privacy and safety of cisgender children.90 These strategies have largely failed both in courts of law91 and in the court of public opinion.92 Even many conservatives have cautioned that overt fearmongering about trans people intruding on others in public spaces is not a winning political strategy.93
But prejudice dies hard. When one justification for negative treatment of a disfavored group falls out of favor with the public or the legal system, opponents of that group often translate their prejudice into new rhetorical forms that are more palatable.94 The shift from the stigmatization and vilification of trans youth in the bathroom bills to the victimization narrative embodied in the gender-affirming care bans illustrates how opponents of trans identity are adapting their rhetoric in response to changing legal and social attitudes towards transgender children. Courts, media, and the public should not be fooled. The paternalistic arguments underlying gender-affirming care bans reflect the same underlying prejudices arising from the same individuals and groups,95 and are directed towards the same ends — erasing trans youth by stigmatizing transgender identity and fortifying the gender binary96 — as bathroom bills and similar transparently vindictive campaigns. In translating their hostility to trans youth into a more socially acceptable language of “protecting” trans youth from the supposedly fraught choice of whether to transition,97 cultural conservatives play both sides of the ball. They moderate their image by appealing to fundamental paternalistic impulses while continuing to work toward eradication of transgender identity in children by blocking access to medical services that make transition possible.98
Their pretextual nature does not — as the UK case illustrated99 — mean the paternalistic justifications can be ignored. The argument that trans youth should not receive gender-affirming medical care must be vigorously discredited on its own terms as a fallacious rationalization of ingrained prejudices that contradicts both empirical data and the experiences of thousands of children. For one thing, the bills’ central justification, that trans youth lack the capacity for self-reflection necessary to accurately perceive their gender identities,100 is flatly untrue. Trans youth are quite secure in their gender identities by the time hormonal interventions become physiologically appropriate.101 A related claim, that trans youth should have to wait until adulthood to transition because many young children who display gender nonconforming behavior “desist,” or do not grow up to be transgender,102 has questionable empirical support103 and, more fundamentally, equivocates gender expression with gender identity. There is a meaningful difference between a child who exhibits gender-atypical behavior and a child who persistently identifies as another gender, and the fact that the former child may not be transgender does nothing to invalidate the latter child’s entitlement to access medically necessary gender-affirming care. And gender nonconforming children who later “desist” from expressing the binary gender opposite to their assigned sex may not necessarily identify as cisgender; they may be nonbinary or possess another gender identity. Presuming that all of these persons are cisgender thus erases nonbinary experiences.104 Second, the implied premise that trans youth have unilateral control over whether and when they transition is empirically untrue because the current standards of care recommend both parental consent and a medical diagnosis of gender dysphoria before a minor can receive puberty blockers or HRT.105 This “gatekeeping” model, far from uncritically acceding to trans youths’ wishes, privileges caution and deliberation over ease of access.106 Finally, even if one accepts that a certain number of cisgender youth will mistakenly transition if gender-affirming healthcare is available (which is itself a dubious proposition), that number is likely dwarfed by the number of trans youth who will suffer the opposite, equivalent harm — being unable to transition even though transition is right for them — if gender-affirming healthcare is not available.
Constitutional Arguments Against Gender-Affirming Care Bans
Gender-affirming care bans are not only harmful and founded on false premises, they are also unconstitutional. This section sketches two constitutional arguments against these proposed bans: one based in the Equal Protection Clause of the Fourteenth Amendment, and one based in the parental rights strand of substantive due process jurisprudence.
1. Equal Protection.
The Equal Protection Clause ensures the right of all citizens to enjoy “the equal protection of the laws,”107 or to be free from unjustified, government-imposed discrimination.108 An equal protection challenge against a facially discriminatory law usually proceeds in two stages: First, the plaintiff must show that the law discriminates or classifies based on the plaintiff’s membership in a protected class.109 Second, the burden shifts to the government to show that the classification is justified by an adequate government interest, and the extent of the government’s burden depends on the tier of scrutiny applied to the type of classification at issue.110
(a) Protected Class. — In the last few years, a growing number of courts of appeals have found that discrimination against transgender people violates equal protection.111 Some courts have held that transgender status is a protected class in its own right,112 while others have found that antitransgender discrimination is sex discrimination.113 Across-the-board bans on gender-affirming healthcare for trans youth would likely receive heightened scrutiny under either framing. Gender-affirming care bans discriminate based on transgender status because they prohibit providing HRT and GCS to minors for the specific purpose of affirming a trans youth’s gender identity, thus facially discriminating against transgender identity, and because in most cases they include exceptions allowing that same care to be provided to cisgender minors for the purpose of treating intersex conditions or “disorder[s] of sexual development.”114 It may be argued that the bans do not facially discriminate based on transgender status, because they simply bar conduct associated with being transgender. But this formalistic status/conduct distinction was hardly convincing in the context of sexual orientation discrimination and is similarly unpersuasive in the context of antitransgender discrimination.115
The per se transgender status argument may no longer be necessary, however, in light of the Supreme Court’s recent decision in Bostock v. Clayton County,116 which held that discrimination against transgender people is sex discrimination under Title VII.117 Justice Gorsuch’s majority opinion applied a but-for causation standard to find that “discrimination based on . . . transgender status necessarily entails discrimination based on sex.”118 Although Bostock’s holding formally reached only Title VII, Justice Alito’s dissent and several courts of appeals recognized that its analysis applies just as clearly to equal protection claims.119 Just as an employer discriminates “because of sex” when it “intentionally penalizes a person [assigned] male at birth for traits or actions that it tolerates in an employee [assigned] female at birth,”120 bans on gender-affirming care for minors discriminate because of sex when they deny minors assigned one sex at birth access to certain medical procedures for gender-affirming purposes, but allow those same procedures to be performed for minors assigned the other sex at birth for non-gender-affirming purposes.121
(b) Government Interest. — To survive heightened scrutiny, the government’s interest must at least be “important” and the law must be “substantially related” to the advancement of the interest.122 Gender-affirming care bans fail this means-ends inquiry along both dimensions. First, the alleged purpose of the bans — to protect children from receiving gender-affirming healthcare — is fundamentally inconsistent with the empirical evidence and the lived experiences of many trans youth showing the efficacy and safety of these treatments,123 and is based in faulty logic.124 It is hard to argue that “protecting” children from medically necessary healthcare that is endorsed by nearly every professional medical association in the country125 and validated by a near-unanimous consensus in peer-reviewed literature126 is an interest sufficiently “legitimate” to pass rational basis review, much less one “important” enough to satisfy heightened scrutiny.127 Second, the bans fail the “substantially related” test because they are considerably underinclusive: even as they identify gender-affirming medical interventions as “dangerous and uncontrolled human medical experiment[s],”128 they allow the same procedures to be performed on children who have “medically verifiable disorder[s] of sex development.”129 If the bans are actually motivated by concern over the supposed dangers of puberty blockers, HRT, and GCS, providing an exception allowing those treatments to be performed for practically any medical condition other than gender dysphoria130 is hardly “substantially related” to abating these alleged harms.
If their purposes are taken at face value, the gender-affirming care bans cannot survive heightened scrutiny. But they also fail under rational basis review, since, as section A explained, their real purpose is preventing transgender children from expressing their transgender identity,131 an expression of animus against transgender people that cannot be a legitimate government interest in the first place.132 Animus can be demonstrated in a number of ways: based on inference from the structure of the law and through direct evidence that the law was motivated by prejudice.133 As the Supreme Court held in City of Cleburne v. Cleburne Living Center, Inc.,134 the structure of a classification can provide inferential evidence of animus when the alleged government interest does not support targeting the particular group over and above other similarly situated groups.135 Thus, when state governments profess that bans on gender-affirming medical treatments are meant to protect children from invasive and life-changing medical procedures, but only ban procedures that are performed for the purpose of affirming a trans youth’s gender identity, the arbitrariness of the classification suggests the stated interests are pretext for animus.136
Ultimately, however, this structural analysis is probably unneeded because there is abundant direct evidence of animus against transgender people surrounding the bans.137 For example, during a private meeting, the Florida bill’s sponsor told a nonbinary opponent of the bill that transgender people “manufacture” their identities.138 The author of the South Dakota legislation labeled medical transition in minors a “crime against humanity” and analogized it to medical experimentation at Auschwitz.139 The lead sponsor of the Colorado bill admitted he was “not concerned” about the potential impact of the bill on the mental health of trans youth in the state, but was disturbed by “a progression of acceptance of young kids being sterilized.”140 The organizations that promoted these bills also demonstrate clear animus towards transgender identity. YouTube removed the video of the October 2019 Heritage Foundation event that inspired many of the bills after determining that the Heritage panelists’ incendiary comments violated the YouTube hate speech policy.141 And the Family Policy Alliance, which helped draft many of the bills, declares prominently on its website that it “oppose[s] . . . attempts to normalize” being transgender, “especially amongst impressionable children.”142
2. Due Process and Parental Rights.
The gender-affirming care bans also arguably violate the Fourteenth Amendment’s due process guarantee of parents’ rights to make decisions about the upbringing of their children. The due process right to freedom in child rearing is one of the foundational rights protected under substantive due process doctrine, dating back to the early twentieth century143 and consistently reaffirmed since then.144 It protects parents’ ability to make important decisions about “the care, custody, and control of their children” free from government interference,145 based on the presumption that a parent, not the state, is in the best position to determine their child’s best interests.146 The Supreme Court has never explicitly held that the due process right to freedom in child rearing encompasses the right to direct a child’s medical care, but has implied as much in at least one case.147 Many other courts and commentators have presumed that parents’ common law right to supervise their children’s healthcare is constitutionally protected.148 Gender-affirming care bans would likely violate this right. Prohibiting parents from authorizing medically necessary treatment for their children when they believe this care is in their children’s best interests is just the kind of intrusive government conduct that parental due process rights guard against.
Of course, parental rights are not absolute. The state can limit parental autonomy in medical decisionmaking in order to prevent injury to children’s health and well-being.149 For example, many states have passed bans on conversion therapy for minors based on the nearly unanimous medical consensus that such treatment is harmful and dangerous.150 Courts have upheld these bans against due process challenges on the ground that “the fundamental rights of parents do not include the right to choose . . . a specific medical or mental health treatment that the state has reasonably deemed harmful.”151
The test is whether the treatment is actually harmful or reasonably believed to be harmful, which depends on the weight of scientific evidence for the legislature’s judgment. Conversion therapy bans do not violate due process because a considerable scientific consensus views conversion therapy as harmful and senseless.152 The crucial difference in the case of gender-affirming care bans is that the weight of the scientific supermajority,153 along with a growing canon of empirical research154 and the lived experiences of thousands of trans youth who benefit from gender-affirming care, is against the legislatures’ judgments that gender-affirming care is harmful.
None of this is to say that challenges to gender-affirming healthcare bans on due process grounds are certain to prevail. Courts often fail to interrogate the factual underpinnings of a legislature’s judgment because their focus is more directly trained on rooting out the motivations of the legislature than on checking the lawmakers’ work in an empirical sense,155 or because they are distracted by their moral preconceptions of an issue.156 This failure is unfortunately commonplace in transgender rights cases,157 though recent decisions have shown improvement in this regard.158 There is also a risk that parental due process arguments could be turned against trans youth who seek to use state resources to obtain access to gender-affirming care against the wishes of unaccepting parents. Detailed exploration of this question is not possible here, but it is doubtful that the best-interests presumption applies if the parent’s decision not to accept their child’s transgender identity or desire to transition is motivated by prejudice, to which “the law cannot, directly or indirectly, give . . . effect.”159
Anxiety about gender-affirming medical interventions for trans youth is understandable in many respects. Puberty blockers, HRT, and GCS are dramatic and life-changing decisions. However, a failure to intervene can be equally consequential. In other words, foregoing gender-affirming care “is not a neutral option”160 for trans youth: it is a choice that imposes significant risks of physical, mental, social, and legal harms. Even so, this Chapter does not argue that every trans youth must transition before adulthood. Although evidence suggests this is the best option in many cases, every trans youth is different, and many transgender people live happy and healthy lives after transitioning as adults. Nor does this Chapter have the scope to opine on the ideal distribution of agency in these decisions between doctors, parents, and trans youth, beyond the observation that parents’ animus or prejudice against transgender people should not inhibit a youth’s access to care.161 Ultimately, “protecting” trans youth requires allowing them to access medical care that permits them to live according to their own definitions of themselves, rather than the definitions ascribed to them by politicians whose goal is not protection, but suppression of children whose identities threaten their worldview. Perhaps lawmakers will one day realize this. But for now, the issue of gender-affirming healthcare for trans youth remains a heated battleground in the culture war, with the rights of thousands of children once again subject to political will.