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 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 On March 30, 2022, Governor Doug Ducey of Arizona signed legislation banning gender-transition surgery for minors.3 On April 8, 2022, Governor Kay Ivey of Alabama signed legislation criminalizing transitioning medications for transgender youth.4 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
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 and at least one state seeking to classify such care as child abuse as the Governor of Texas did.7 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 recipients of Medicaid,9 and people incarcerated in state correctional facilities.10
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 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 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 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 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 Not surprisingly, some of the purported medical experts that states rely on to defend youth medical bans also support conversion practices.16
Conversion practices encompass a range of techniques, including behavioral therapy, play psychotherapy, and parental counseling (p. 26),17 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 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 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 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
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 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 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 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 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 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 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
Because a majority of people in the United States do not believe they know a transgender person,29 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 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 They also suggest additional work that remains, beyond the law, to eliminate conversion practices (pp. 108–29).32 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.”
* 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.