I cannot begin to imagine the pain of feeling that your body does not match your gender. I cannot imagine the pain of parenting a child in such distress. Americans should feel immense sympathy for individuals in those circumstances, and we should feel an urgent necessity to treat children’s pain in the safest and most effective way possible.
We should not, however, require states to permit treatments of dubious effectiveness, especially when those treatments carry risks of serious side effects. But that’s exactly what the plaintiffs are requesting in United States v. Skrmetti, a case argued this month at the Supreme Court that challenges Tennessee’s ban on “medical procedures” that permit “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” This ban includes the use of puberty blockers and cross-sex hormones. It does not apply to adults.
A bit of legal background is necessary to understand the full constitutional ramifications of this case. U.S. law recognizes several important differences between children and adults, and one of the chief differences is that minors are deemed incapable of granting informed consent to medical procedures. They’re too young to understand the risks and rewards, and too susceptible to adult influence to be independent thinkers.
Typically, this means that parents step in as proxies. Parents are the ones who consent to medical treatments for their children, and they’re the ones who sometimes make life-or-death decisions regarding the welfare of their children. But parental authority is not absolute, including when it comes to deciding which treatments are available.
Parents can’t dictate the approval or availability of any given drug. They can’t require hospitals to provide specific surgical services. And states still exercise oversight of child welfare. In Tennessee, for example, a child can’t get a tattoo even with parental permission (except to cover up an existing tattoo).
A ‘rational’ choice
The decision to approve any given drug for public use is typically made by the political branches of the government. At the federal level, the Food and Drug Administration — an executive agency authorized by Congress — governs the process, and, as the Court of Appeals for the 6th Circuit explained in its own ruling in this case, “the Constitution rarely has a say over the FDA’s work.”
As long as the government’s choice is deemed “rational,” it’s permitted, and then the recourse is to politics, not the courts, to change the government’s decision. To pass the test, the state has to show only that the law advances a legitimate state interest and that there is a rational connection between the law’s means and its goals.
This “rational basis” test requires broad deference to the legislature. It’s the default standard for reviewing a governmental action, unless that action implicates a constitutional right (such as the right to free speech or due process) or is aimed at a protected class of Americans, such as laws that draw distinctions on the basis of race or national origin.
And when you survey the state of the science regarding gender-affirming care for minors, it’s clear that Tennessee’s law passes that legal test.
Perhaps the single most consequential and rigorous examination of the safety and efficacy of gender-affirming medical interventions is the Cass Review, a comprehensive survey by Dr. Hilary Cass of research on gender-affirming medical treatments for minors. Britain’s National Health Service commissioned the review to make recommendations on how to improve NHS gender identity services and to make sure that children experiencing gender dysphoria experience a “high standard of care.”
Cass described the field of study as “an area of remarkably weak evidence.” Even worse, “the results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint.” Her conclusion was sobering: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”
Serious side effects
There can be serious side effects to medical treatments. As the state of Tennessee contended in its brief to the court, “giving girls high doses of testosterone induces severe hyperandrogenism that can cause clitoromegaly, atrophy of the lining of the uterus and vagina, irreversible vocal cord changes, blood-cell disorders and increased risk of heart attack.”
In addition, “giving boys high doses of estrogen induces hyperestrogenemia, leading to a ‘very high risk of’ blood clots and increased risk of tumors, breast cancer, coronary artery disease, cerebrovascular disease, sexual dysfunction and gallstones.”
The plaintiffs challenging the ban argue that the Supreme Court should apply heightened scrutiny to the law — in other words, that the court should apply a standard different from the rational basis review applied by the court of appeals. Even as the Cass Review has undermined the rationale for medical interventions for minors, the plaintiffs want the state to have less discretion to limit access to gender-affirming care.
Their theory is that the Tennessee regulation isn’t a conventional medical regulation but rather a form of sex discrimination. As the solicitor general, Elizabeth Prelogar, argued, the Tennessee law “regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex.”
“The law restricts medical care only when provided to induce physical effects inconsistent with birth sex,” she continued. “Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can.”
The plaintiffs’ sex discrimination argument would have far more purchase if the Tennessee law applied to adults as well, but it does not. Adults in Tennessee still possess the full freedom to choose gender-affirming medical interventions, including both hormone treatment and surgery.
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It would be a sad irony if the Supreme Court diminished the state’s ability to protect young people from potentially harmful medical treatments at the very moment when the efficacy of those treatments is subjected to an increasing amount of doubt. The risks of adverse side effects are quite plain and potentially severe. For example, a government expert admitted in a different case that puberty blockers can diminish fertility in adult patients, even after an adult has stopped their use.
My heart breaks for those families confronting childhood gender dysphoria, and the hatred and discrimination we’ve all seen directed against the transgender community is repugnant. There is no excuse for animosity and malice in American law. We just ended an election during which the Trump campaign spent millions in ads designed to inflame the voting public against transgender Americans.
But attempting to protect children against the lifelong consequences of medical treatments administered before they’re old enough to fully understand the risks isn’t malicious. It’s a traditional function of American government.
David French is a New York Times columnist.
