In its upcoming term, the Supreme Court will once again hear a case that involves a highly contentious question that lies at the heart of personal liberty: Who should decide what medical care a person receives? Should it be patients and their families, supported by doctors and other clinicians, using guidelines developed by the leading experts in the field based on the most current scientific knowledge and treatment practice? Or does the Constitution permit lawmakers to place themselves, and courts, in the middle of some of the most complex and intimate decisions people will make in their lives?
The case, United States v. Skrmetti, has been brought by the Biden administration to challenge a ban in Tennessee on gender-affirming care for adolescents that all major American medical organizations support. Tennessee is one of some two dozen states that have passed laws limiting gender-affirming care for young people. The appeal argues that these bans are an unconstitutional form of sex discrimination: They forbid long-used treatments for transgender adolescents that are also given to children who are not transgender for different reasons.
The Tennessee law, called the Protecting Children From Gender Mutilation Act, prohibits the use of puberty-blocking medications for transgender adolescents, for example, but permits them for children who go into puberty at an early age. It bans the use of sex hormones like testosterone in transgender adolescents but allows it for other health issues, such as for children assigned male at birth. It bans gender-affirming surgeries for transgender adolescents — such surgeries are extremely rare — but allows similar surgical procedures that affirm the sex a child is assigned at birth, even on infants who are intersex.
The Supreme Court ruled in 2020 — somewhat surprisingly given its conservative majority — that differential treatment of transgender and gay people is impermissible under civil rights law. “It is impossible,” Justice Neil Gorsuch wrote in his decision in that landmark employment discrimination case, “to discriminate against a person for being hom*osexual or transgender without discriminating against that individual based on sex.” Lawyers seeking to overturn gender-affirming-care bans will urge the court to follow the logic of that ruling and declare the Tennessee law and others like it unconstitutional.
Lawyers arguing in favor of these bans have taken a sharply different approach. In a striking echo of the arguments used to challenge medical abortion, they have asserted, against the consensus of the mainstream medical science, that the standard treatments for transgender children are not based in evidence and represent a grave risk to the health and well-being of young people.
This argument has been floating around conservative circles in the United States for some time, and some European government health care systems have embraced it, too, with some limiting access to gender-affirming care for young people, citing doubts about the evidence supporting it. The argument has been supercharged in recent months by an unlikely ally on the other side of the Atlantic Ocean: the British pediatrician Hilary Cass.
In April, Cass and her team published a 388-page report on gender-affirming care for children and teenagers that was written at the behest of the British government. The report has received a jubilant reception from activists who oppose such care. One such group declared it “the single most notable event in the history of youth gender medicine of the last decade.” In Britain, where transgender issues seem to have much greater political salience than in the United States, some medical groups have embraced the report.
Transgender activists, by contrast, have harshly criticized the report. Research scientists and journalists have questioned the validity of its conclusions and its interpretations of the science. On July 31, the organization that represents nearly 200,000 doctors in Britain said it plans to review the methodology and conclusions of the report, saying that “clinicians, patients and families should make decisions about treatment on the best available evidence, not politicians.”
The right has made use of Cass’s work for its own ends. Preliminary versions of her team’s findings were cited in amicus briefs from conservative legal groups like the Alliance Defending Freedom, which has been central to assaults on abortion, contraception, and gay and transgender rights. It seems likely that the report and its arguments will be load-bearing beams in the case that Tennessee’s attorney general, Jonathan Skrmetti, makes at the Supreme Court later this year. How did this document become such a powerful piece of ammunition in American reactionaries’ war on trans young people?
Cass was asked to evaluate the evidence for gender-affirming care by the British government in the aftermath of a lawsuit brought by a young woman, Keira Bell, who had been treated by the National Health Service’s gender care unit. Bell claimed that she had been too young to consent to puberty-blocker treatment she said she received at 16. She later took testosterone and as an adult had chest surgery, one of the most frequently performed procedures for transmasculine people. She later said she regretted these decisions.
Bell won the suit initially. But it was later reversed by the appeals court, which said that clinicians, not judges, should make the determination on whether a young person could consent to treatment. Britain’s highest court declined to take up the case. From a legal perspective, the matter was settled.
Politically, though, it was still contested. The Bell case further stoked what was already a climate of transphobia in Britain, where conservative politicians have made common cause with some women’s groups, and the celebrity author J.K. Rowling, to claim without convincing evidence that transgender women endanger other women and that children born as girls are being seduced, often while suffering serious mental illness, by what they call “gender ideology” into believing they are transgender boys.
So Cass, a retired pediatrician who had led Britain’s pediatric medical association but had no direct experience with gender care, undertook a yearslong review of the scientific literature that undergirds modern gender-affirming care for children, along with an examination of the records of thousands of children who had received this care from the N.H.S.
Upon first reading, especially to a person with limited knowledge of the history of transgender health care, much of the report might seem reasonable. It is full of statements of concern for the well-being of children and young people, insisting that the current standards of care are built on “remarkably weak evidence” and that the relatively tiny number of children seeking gender-affirming care “deserve very much better.”
But the report is also full of contradictions. While maintaining that “for some, the best outcome will be transition,” it nevertheless effectively recommended that the N.H.S. abandon the guidelines embraced by major mainstream medical associations and restrict the use of medications that have been offered for decades to adolescents across the globe with vanishingly few negative side effects or regrets.
The reason, the report says, is that these treatments are insufficiently supported by reliable, long-term evidence. Then, remarkably, the report recommends treatments — psychological treatment and medications for depression and anxiety — that have even less proof behind them in helping children (or adults) with gender dysphoria, though they may help with other mental health issues, and many children with dysphoria already get these treatments. And for all its insistence of evidence, the report is peppered with mere speculation about the potential causes of gender dysphoria: p*rnography and the phenomenon of social contagion are invoked, with zero credible evidence to support them.
It is a strange document.
Social conservatives welcomed the report. But it has also been heralded in some liberal quarters in Britain, where even the Labour Party has supported its conclusions, and around the world as a model of open-minded rationalism, of well-intentioned — progressive, even — unbiased scientific inquiry attempting to provide information in young people’s best interests. This, they declare, is what following the science and the evidence looks like.
But is it? In an effort to evaluate the Cass report’s findings and recommendations, I spent the months since it was released poring over the document, researching the history of transgender medicine and interviewing experts in gender-affirming care as well as epidemiologists and research scientists about the role of scientific evidence in determining care standards. What I have come to realize is that this report, for all its claims of impartiality, is fundamentally a subjective, political document.
The Cass report primarily looks at gender-affirming medical care for adolescents, a particularly fraught and contested area of medicine. Transgender children are a very small population and one that was not closely observed by researchers until relatively recently. The evidence base for this medical care is small, though growing. Like a lot of medical care for children, much of gender medicine for trans adolescents grew out of trans care for adults. And like much of medical care for people of all ages, it involves an uneasy encounter between science, medicine and the subjective experience of the patient.
Medicine, of course, is based on science, something that is not, in theory, subjective. But science is not an instruction manual for medicine. It describes and explains the natural world — it does not tell us what to do about what we find.
We experience this reality when we go to the doctor. We usually seek out a clinician because we sense something is amiss. A physician tries to figure out what is going on by examining and listening to the patient, applying scientific knowledge and exercising judgment using the broad world of what we think of as objective knowledge that might explain and offer a guide for how to treat the complaint.
Sometimes this is straightforward. An easy meeting to describe symptoms, followed by a biological test, leads to a straightforward diagnosis. But most complaints involve an unavoidable subjectivity. Only the person experiencing pain can tell you how severe it is. The same goes for fatigue or malaise, which could result from so many different ailments. Doctors may ask you to rate your pain or fatigue on a scale in an attempt to quantify and therefore render it more objective, but it is still up to you, the patient, to choose where you are on the scale. And research has shown that gender often plays a role here, too: Women’s pain has historically been more readily dismissed by physicians.
Medicine’s problem with subjectivity grows more acute if the underlying condition is harder to explain through biological evidence. For years, doctors belittled the suffering of people, especially women, with unexplained pain, fatigue or brain fog. Illnesses like myalgic encephalomyelitis, also known as chronic fatigue syndrome, were dismissed as psychological phantoms. This has continued into the present.
Once we enter the realm of the psychological, the subjective evidence — the patient’s account of their interior life — is almost always all the clinician has to go on. This has bedeviled psychiatry from its earliest days. “It is not easy to deal scientifically with feelings,” Sigmund Freud wrote with characteristic understatement.
And while being transgender is not a disease, it nevertheless can involve medical care (though not always). The treatments offered in the modern era sit at the intersection of psychology, endocrinology and plastic surgery. For much of its history this care was withheld or offered with the kind of contempt you’d expect for people who have been treated as pariahs for their failure to conform to society’s gender expectations.
What many people may not realize is that the present standards of care for transgender people, both adults and children, did not emerge suddenly in recent years. They are the product of a dark and cruel history.
After World War II, advances in reconstructive plastic surgery for returning soldiers, including facial and genital reconstruction, along with technology that allowed production of cross-sex hormones, led to interest in sex reassignment. Johns Hopkins Hospital became a pioneer in the field. In 1966, John Hoopes, a leading plastic surgeon at the hospital, declared that “psychiatrists have tried repeatedly to treat these people without surgery, and the conclusion is inescapable that psychotherapy has not so far solved the problem,” he said. “Perhaps we should consider changing the body to fit the mind.”
Obtaining these treatments was not easy. Patients were required to undergo a long, intrusive and expensive process of psychological, social and physical examination that included I.Q. tests, police records and frank sexual histories. Patients who cleared the first hurdle were then required to live for a sustained period in their new gender identity, what was colloquially known as “the real-life test.” Only if they passed would they be considered for surgery.
This medical care was offered as a kind of last resort for people who were deemed unable to otherwise live what doctors thought was a normal life. The whole point of the degrading ordeal seems to have been to make it as difficult to get as possible, to dissuade most people who tried.
“Medicalization is premised on the idea that it is irrational and disgusting to transition, so no rational doctor would permit it except as a last resort,” the historian Jules Gill-Peterson has written. “There is a form of social and political control implemented by medicine, a way to sever an unpopular minority from their own bodies and then sell back limited access to their bodies if they will submit to a set of trials to prove they can be good people, or at least made better.”
But even this flawed, limited form of medical care for adults would not last. In 1979, a pair of researchers at Johns Hopkins published a paper under the bland title “Sex Reassignment: Follow-Up.” Jon Meyer, the paper’s lead author, examined the medical records and experiences of 50 people who had been treated at Johns Hopkins, some who had completed sex reassignment surgery and others who had not. His findings were striking: Just one person, a transgender man, regretted part of his surgery, known as a phalloplasty, after major complications. The article also surveyed other research in the field, finding similar results: Patients were pleased with their treatment and few had regrets about their choices.
But that wasn’t what Meyer set out to measure. Instead, he asked whether people who received this treatment had improved on what he called “objective” measures. Were they less likely to be arrested, more likely to hold down a job, more likely to be in a heterosexual marriage and less likely to need psychiatric care? In other words, did sex reassignment make them more like the kind of citizens society valued most? His unequivocal conclusion was no.
“Sex reassignment surgery confers no objective advantage in terms of social rehabilitation, although it remains subjectively satisfying to those who have rigorously pursued a trial period and who have undergone it,” he wrote.
The paper was just six pages long, but it upended the burgeoning field of gender medicine. In part based on these findings, Hopkins shut down its gender clinic that same year. The broader climate had already begun to turn away from gender-affirming surgery, and many major clinics offering sex reassignment surgery in the United States shut their doors.
Medical treatment of transgender people in the United States entered an ice age from which it slowly emerged amid a broader reckoning about gender and sexuality, as well as a move away from paternalistic, doctor-driven medicine to a more patient-centered approach. Most of us would now find revolting the notion that a patient deserves medical treatment only if it makes them a better citizen.
The care offered to adults with gender dysphoria has in recent decades slowly moved to a model of gender-affirming care under the broad principle of informed consent — the idea that patients can be informed of risks of a procedure and decide for themselves. But many transgender people, even adults, still find themselves at the mercy of medical decision makers: Some doctors and insurance companies still require documentation from a psychologist to offer hormones and surgery to adults.
Children with gender dysphoria present a different set of difficulties. Medical care standards for adults are usually adapted to children and adolescents, but the question of informed consent is more fraught: Children and adolescents are given far less autonomy than adults. Still, in much of medicine the subjective experiences of children, not just doctors’ objective observations, have moved to the center of their care, even as the role of parents and the broader community of care is taken into account to a much greater degree than with adults. Doctors in the Netherlands pioneered the use of medications to delay puberty for children with strong and persistent gender dysphoria, giving them time to decide whether to begin cross-sex hormones.
Like most young fields of medicine that involve tiny numbers of patients, the research basis for these treatments for adolescents has built up quite slowly. Many of the studies are observational and retrospective rather than the large, random controlled trials we associate with medical research, though it is worth noting that a surprisingly high number of medical interventions have similarly limited evidence behind them. As uncomfortable as it might be, uncertainty pervades medicine, including pediatric medicine.
The move to informed consent for transgender youth attracted little controversy at first, but in the past decade as the number of children who report experiencing gender dysphoria has risen sharply and more of them have sought access to medical care for it, this has erupted into one of the most contested fronts in the culture war, buttressed not just by right-wing views about gender and sexuality but also by liberal anxieties about child mental health. And so we have the Cass report.
Despite the language of care and concern, I heard clear echoes of Meyer’s findings among Cass’s, and even more explicitly in interviews Cass has conducted since the report was published.
“We need to follow up for much longer than a year or two to know if you continue to thrive on those hormones in the longer term,” she said in a recent interview. “And we also need to know, particularly from young adults, are those young people in relationships? Are they getting out of the house? Are they in employment? Do they have a satisfactory sex life?”
That might sound reasonable enough. But the problem with both Meyer and Cass is more fundamental than the scientific facts and evidence. It can be surprisingly hard to know objectively whether medical treatments benefit patients in many areas of medicine, but nowhere more profoundly and controversially than in the care of gender-nonconforming youth. There is, contrary to Aristotle, no universally agreed upon definition of what constitutes a good life. How can we expect medical science to deliver answers to such profound, mysterious and fundamentally subjective questions?
“The problems with evaluating trans medicine have not changed since its inception,” Eric Plemons, a medical anthropologist at the University of Arizona who studies trans health care, told me. “Like Meyer, Cass is searching for some outcome that would satisfy her beliefs about what successful treatment means.”
The Cass report veritably bristles with data, looking, mostly with skepticism, at studies that purport to show that puberty blockers and hormones improve the lives of transgender children, doubting the relatively weak evidence that these treatments make trans kids less likely to be depressed or suicidal. It casts doubt on studies that show very low rates of regret and detransition, declaring that despite two decades of overwhelmingly positive experience with medical treatment for young people with gender dysphoria, the possibility that there might be some theoretical, hitherto unseen long-term health consequence, or distant regret much later in life, is too great to continue with existing practice.
Meanwhile, it casts doubt on the persistence of gender dysphoria, arguing, as some disputed studies have, that children tend to get over gender dysphoria once they reach puberty. But these studies used a much looser definition of dysphoria than the one required to obtain medical treatment under current guidelines from the global organization that sets the standards for transgender medicine. And in any case medical treatment for gender dysphoria does not begin before puberty. The report is studded with speculation and, bizarrely for a science-based document, confuses the definition of exponential growth. I could go on.
Some groups and activists, especially those who are skeptical or hostile to childhood transition, look at Cass’s evidence and see a scandal, albeit one with largely theoretical victims. Others, like me and the broader medical profession, are more likely to see a slow, cautious and necessary process of adaptation of medical care unfolding over time.
Besides, the state of this evidence before this report was hardly some scandalous secret: The World Professional Association for Transgender Health, whose standards of care are widely accepted by major medical organizations in the United States and beyond, flatly states that “despite the slowly growing body of evidence supporting the effectiveness of early medical intervention, the number of studies is still low, and there are few outcome studies that follow youth into adulthood” and recommends a slow and cautious approach to treatment despite this limited evidence because the “emerging evidence base indicates a general improvement in the lives of transgender adolescents who, following careful assessment, receive medically necessary gender-affirming medical treatment. Further, rates of reported regret during the study monitoring periods are low.”
There are many areas of pediatric medicine where treatment has proceeded with a very limited evidence base for long-term consequences, like neonatal intensive care and, more recently, new weight-loss medicines prescribed for obese children. “Pediatric care would all but cease if physicians denied treatments for which the evidence base is imperfect,” a group of scholars and clinicians, including two Yale professors, wrote in a critical analysis of the Cass report.
But the back-and-forth about what the scientific evidence does or doesn’t show obscures some of the most striking findings of Cass’s own analysis.
A great deal of the media coverage of gender-affirming care in the West has painted a picture of huge numbers of children, some of them suffering from profound mental illness, rushed into medical transition, practically force-fed puberty blockers and hormones, then fast-tracked to surgery once they turned 18, based on unproven treatment and perhaps bogus science.
But the report itself not only fails to show any evidence of significant regret among patients or other forms of harm; its own data also contradicts the notion of rushed transition. Of the more than 3,300 medical records examined as part of the review, about a quarter of children and adolescents were referred to an endocrinologist, which suggests a significant screening process. Indeed, on average, patients had more than a half dozen consultations before being referred.
If anything, the evidence suggests a lack of care bordering on neglect, which is not surprising considering that millions of people are on waiting lists for treatment of all kinds by Britain’s crumbling health system. One of the most common pieces of feedback was that young people lingered on waiting lists, sometimes for years. A number of participants in focus groups convened for the purpose of the report said they felt that they had to “prove” to clinicians that they were transgender.
“They probed me so hard for any ‘alternative’ reasons I may have been trans initially (such as other childhood trauma, with emphasis on sexual assault),” one participant said. “It just felt like they were finding any reason to ‘disprove’ me being trans in my first appointment.”
While some young people felt in a rush to begin medical treatment, especially if they had been on a waiting list for some time, other participants also spoke about wanting time and space to explore their identities, and wanting support for those who tried medical transition and changed course: “It’s good for people to know that it’s OK to decide something is not for you,” another participant said. “It’s good to know that you can start hormones, for example, and then say, ‘Hmm, this actually isn’t the route for me.’”
Even social transition, which can include a child adopting a new name or style of dress but involves no medical interventions, is treated with some suspicion in the report, saying “sex of rearing seems to have some influence on eventual gender outcome, and it is possible that social transition in childhood may change the trajectory of gender identity development for children with early gender incongruence.”
The report is shot through with language like that. It seems to encourage everything that can be done to preserve the possibility that a child might turn out not to be transgender and avoids anything that might too enthusiastically affirm a child’s sense of themselves.
At one point the report posits that because a child has never had the experience of growing up in their assigned sex, they would have no way to know whether they might regret transition. “They may have had a different outcome without medical intervention and would not have needed to take lifelong hormones,” the report says, referring to children assigned female at birth.
It is hard to know what to make of a statement like that. A person gets only one life; waiting to see how it works out isn’t really an option. To a queer woman like me this is an ominous echo of something many of us have heard many times in our lives: Maybe you just haven’t met the right man yet. The wish — whether expressed by a parent, a teacher, a therapist or a suitor — is a wish for a child not to be queer.
It is hard to find a satisfying explanation for these kinds of conjectures and conclusions in the report other than this one: Many people find transgender people at best unsettling and possibly deluded or mentally ill, or at worst immoral and unnatural. They appear to believe it would be better not to be trans.
As much as Cass’s report insists that all lives — trans lives, cis lives, nonbinary lives — have equal value, taken in full it seems to have a clear, paramount goal: making living life in the sex you are assigned at birth as attractive and likely as possible. Whether Cass wants to acknowledge it or not, that is a value judgment: It is better to learn to live with your assigned sex than try to change it. If this is what Cass personally believes is right, fair enough. It can charitably be called a cultural, political or religious belief. But it is not a medical or scientific judgment.
And so now Cass and her supporters are getting the outcome that they may not have wanted, but to which their conclusions inevitably lead. Britain is facing a return to a system designed to make sure radically fewer people, especially young people, transition, joining a handful of other countries that have curtailed access to medical transition.
In the United States, conservative politicians have passed bills banning care for children and even adults, restricting social transition and banning transgender people from competitive sports. And now, the Supreme Court, which has already dismantled bodily autonomy for pregnant women, could permit states to bar this care from children. Already lower courts have not hesitated to substitute their judgment for that of the doctors and scientists who provide and design this care, and the patients and families who seek it.
It may be tempting, especially for liberals uneasy about changes in gender expression in young people, to see transgender medicine for children as a uniquely fraught subject of scientific and medical dispute requiring government intervention. But the response to Cass’s report is a blueprint for how activists can successfully use the imprimatur of science to dispute all manner of health care they do not like. How different is this report from the accounts of activists who claim, contrary to a large body of evidence, that the abortion medication mifepristone is unsafe, or that women are psychologically harmed by abortion? The Supreme Court dismissed the latest attempt to restrict access to the drug, but on grounds of standing, not substance.
This approach opens up all kinds of medical care — especially care that touches on fraught social issues like sexuality and reproductive health — to political and legal challenges based on the work of doctors and researchers with no expertise in the field who feel emboldened to weigh the safety of longstanding treatments and demand objective proof of their benefit. Imagine a urologist with no experience in women’s reproductive health being asked to evaluate the safety, benefits and efficacy of birth control, and you get the idea of how unusual the Cass report is.
Imagine that your health care required objective justification, if access to birth control or erectile dysfunction medications required proving that you were having monogamous sex, or good sex, or sex at all. Or if fertility care was provided only if you could prove that becoming a parent would make you happy, or you would be a good parent. Or that abortion would be available only if you could prove that it would improve your life.
In a free society we agree that these are private matters, decided by individuals and their families, with the support of doctors using mainstream medical science as a guide, even when they involve children. We invite politicians and judges into them at great peril to our freedom.
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