But Who Will Think of the Children? Protecting Trans Youth with Gender Affirming Care

On June 15, 2020, the Supreme Court issued its ruling in the highly publicized case, Bostock v. Clayton County.[1] The consolidated case asked whether an employer firing an employee merely for being transgender or gay violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of…sex.”[2] Justice Gorsuch, writing for the majority, explained that when an employer intentionally fires someone based on their gender or sexual identity, the employer is necessarily treating those employees differently because of their sex.[3] The language of the Bostock opinion was unequivocal and plain, this type of discrimination violates Title VII, “[n]ot because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”[4]

Trans people, their allies, and fellow activists celebrated the decision for the historic precedent it set as well as for the recognition of their legal rights and status as citizens and people in this country.[5] Underneath this landmark victory, however, the boiling pot of anti-LGBTQ+ sentiment fomenting in this country for decades finally spilled over the side. While the anti-LGBTQ+ sentiment itself is nothing new, there has been a recent surge in specifically anti-trans legislation, not only as a backlash to recent gains by the LGBTQ+ community, but also because of the increasing embrace of extremist values by the Republican Party and its members.[6]

While these anti-trans bills and policies cover all areas of life, there has been a particular focus on alleged “concern for children” with many bills targeting gender-affirming healthcare for minors as well as school sport and bathroom policies.[7] After Texas Governor Greg Abbott released a directive in February 2022 declaring that, as defined by state law, certain gender-affirming medical procedures constitute child abuse, Texas has been at the center of this controversy.[8] Based on this determination, Governor Abbott thereby imposed a duty to report “upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.”[9] This directive also allows the Texas Department of Family and Protective Services (“DFPS”) to investigate the parents of any such child and for any medical facilities where these procedures may occur to be similarly investigated by the relevant agency.[10] These new duties are based on an opinion issued by the Texas Office of the Attorney General that attempts to paint gender-affirming healthcare and medical procedures as experimental, heavily regretted, and devastating to children, generally.[11] These claims, obviously designed to shock, are actually relatively common in this type of governance. A recent bill in Alabama flatly states that the risks of these procedures are “simply unknown due to the new and experimental nature of these interventions.”[12]

This inflammatory rhetoric works, in part, because of a general lack of knowledge regarding trans people and their healthcare in this country.[13] Recent data shows that only 0.6% of adults in the United States, about 1.4 million people, identify as transgender.[14] Experts estimate that roughly 0.7% of 13-17-year-olds identify as transgender, and also note that younger generations tend to identify as transgender in higher percentages than their older generational counterparts.[15] It is important to note, however, that the World Professional Association for Transgender Health (“WPATH”) makes clear that “[g]ender dysphoria during childhood does not inevitably continue into adulthood” but also that “the persistence of gender dysphoria into adulthood appears to be much higher for adolescents.”[16] As some children may not experience gender dysphoria into puberty and adulthood, the relevant standards of care promulgated by the WPATH recommend that parents “present this role change as an exploration of living in another gender role rather than an irreversible situation.”[17] Additionally, WPATH explicitly prohibits any genital surgery until “patients reach the legal age of majority to give consent for medical procedures in a given country, and. . . patients have lived continuously for at least 12 months in the gender role that is congruent with their gender identity.”[18] Hormone therapy and puberty blockers are “fully-reversible” as the individual adolescent simply takes medication that, essentially, prevents them from entering puberty to allow “adolescents more time to explore their gender nonconformity and other developmental issues.”[19]

This flies in the face of the letter sent by Texas Representative Matt Krause to Texas Attorney General Ken Paxton claiming that “medical practitioners perform various sex-change procedures on children,” citing to Governor Abbott’s request that DFPS look into the issue of gender-affirming care as possible child abuse.[20] Despite the demonstrated evidence that refusing to affirm a transgender child’s identity leads to increased suicidality[21], these types of bills and concerns have continued to appear throughout the country.[22] Even the case[23] that supposedly sparked this concern in Governor Abbott, after father Jeff Younger openly defied a court-imposed gag order, was closed in 2019 with Texas state investigators ruling out child abuse.[24] In that case, a father, in open defiance of a court-imposed gag order, claimed that his ex-wife and the child’s doctors were forcing his child to transition despite court records and therapists confirming the child’s desire to transition from a young age.[25] Despite an initial ruling giving the child’s mother—a pediatrician—full conservatorship, the judge later vacated this order, allowing both parents to have equal custody of their child.[26] Not only that, but Judge Kim Cook held that the State of Texas had no compelling interest to force the child’s father to respect his child’s gender identity.[27] The father was also ultimately successful in obtaining a court order barring the child from beginning hormone therapy or puberty blockers, even though the child’s mother retained essentially all other aspects of custody. [28][29].

Despite supposedly promoting this type of legislation out of concern for children, Texas consistently ranks among the lowest in overall child wellbeing with recent data ranking it 41^st out of the 50 states based on “measures of health, education, and economic well-being.”[30] Eleven percent  of Texas children are uninsured—over double the national rate of 5%.[31] Other states with similar anti-trans bills pending or passed also scored low in overall wellness of children, with Alabama, for example, ranking 47th.[32] This type of legislation, based on inflammatory rhetoric and used to stir up base support before an election, does not help children. In fact, data discussed previously, and readily available via internet search, shows that providing gender-affirming care does help children, and, critically, lowers their overall suicide risk.[33] This type of care is not entered into lightly— “criteria for [hormone] therapy include: (I) persistent well-documented gender dysphoria…diagnosed by a mental health professional well versed in the field; (II) capacity to make a fully informed decision and to consent for treatment; (III) age of majority; and (IV) good control of significant medical and/or mental comorbid conditions.”[34] According to Dr. Joshua Safer, the Executive Director at the Center for Transgender Medicine and Surgery at Mount Sinai and President of the United States Professional Association for Transgender Health, “’[t]here is no medical intervention of any sort prior to someone hitting puberty.’” [35]

In light of these attacks on the trans community, and especially on trans children, it is imperative for lawyers, legislators, and judges to consider the proven, medical data that gender-affirming healthcare helps children and can even save their lives. It is also important to continue to push back against the false narrative being asserted by certain parties based on their own interests. The gender-affirming model of care for transgender children “has been recommended by nearly every major American medical association, including the American Academy of Pediatrics, the American Medical Association, the American Psychological Association, the Endocrine Society, the World Professional Association for Transgender Health, the American College of Obstetricians and Gynecologists, and many others.”[36] As Bostock detailed the change in attitudes towards sex discrimination that lead to the ultimate holding, so too has medical understanding and attitudes towards transgender people changed. The legal field must keep up, especially when the lives of children are at stake.

[1] Bostock v. Clayton County, 140 S.Ct. 1731 (2020).

[2] Id. at 1737-38.

[3] Id. at 1745. For example, if a male employee is fired for marrying another man but a female employee is not fired for, similarly, being married to a man, “the employer fires an individual in part because of sex.” Id. at 1741.

[4] Id. at 1742.

[5] Nina Totenberg, Supreme Court Delivers Major Victory To LGBTQ Employees, NPR (June 15, 2020), www.npr.org/2020/06/15/863498848/supreme-court-delivers-major-victory-to-lgbtq-employees.

[6] See Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. S.B. 184, Reg. Sess. (2022) (declaring that sex is “genetically encoded into a person at the moment of conception, and it cannot be changed” and that a “wait-and-see” approach should be taken for children suffering from gender dysphoria); Ia. H.F. 2416, 89th Gen. Assemb. 2d Sess. (2021) (enacted) (requiring that only “female students, based on their sex, may participate in any team, sport, or athletic event designated as being for females, women, or girls” thereby disallowing transgender students from being on the same team as their similarly gendered peers); Tenn. S.B. 2153, 112th Gen. Assemb. (2021) (disallowing “students of the male sex” from competing on school teams that are designated for “’females,’ ‘women,’ or ‘girls’” in both private and public schools). See also, Matt Lavietes and Elliott Ramos, Nearly 240 anti-LGBTQ bills filed in 2022 so far, most of them targeting trans people, NBC (March 20, 2022), www.nbcnews.com/nbc-out/out-politics-and-policy/nearly-240-anti-lgbtq-bills-filed-2022-far-targeting-trans-people-rcna20418 (describing the explosion of anti-LGBTQ bills filed “from 41 bills in 2018 to 238 bills in less than three months of 2022” as a “response to a string of progressive wins, including two landmark Supreme Court rulings” as well as a “part of a wider political strategy to use transgender people as a ‘wedge issue’ to motivate right-wing voters.”); Joseph Lowndes, Far-right extremism dominates the GOP. It didn’t start — and won’t end — with Trump., Wash. Post (November 8, 2021), www.washingtonpost.com/outlook/2021/11/08/far-right-extremism-dominates-gop-it-didnt-start-wont-end-with-trump/ (tracing the rise of the far-right extremists within the Republican Party beginning with Pat Buchanan and ending with the January 6, 2021, storming of the Capital building demonstrating how the GOP “has come to embrace violent authoritarianism.”); Brendan Williams, President Trump’s Crusade Against the Transgender Community, 27 Am. U.J. Gender Soc. Pol'y & L. 525, 527 (2019) (detailing the negative affects of the Trump Administration’s various policies “targeting over one million transgender Americans.”).

[7] See Lavietes and Ramos, supra note 6, (writing that “[p]roponents of these bills say they’re about protecting children, parental rights, religious freedom or a combination of these. Opponents, however, contend they’re discriminatory and are more about scoring political points with conservative voters than protecting constituents.”).

[8] Letter from Governor Greg Abbott to Commissioner Jaime Masters, (Feb. 25, 2022), gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf.

[9] Id.

[10] Id.

[11] Id.

[12] Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. S.B. 184, Reg. Sess. (2022).

[13] See Understanding the Transgender Community, HRC Found., www.hrc.org/resources/understanding-the-transgender-community (showing that, while three out of ten adults in America personally know a trans person, the trans community faces a host of discrimination and violence in large part due to ignorance of the general public).

[14] Jody L. Herman, Andrew R. Flores, Taylor N.T. Brown, Bianca D.M. Wilson, and Kerith J. Conron, Age of Individuals Who Identify as Transgender in the United States, Williams Inst., 3 (January 2017) williamsinstitute.law.ucla.edu/wp-content/uploads/Age-Trans-Individuals-Jan-2017.pdf

[15] Id. at 6.

[16] Eli Coleman et. al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, 11 WPATH (2012) www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English2012.pdf?_t=1613669341

[17] Id. at 17.

[18] Id. at 21.

[19] Id. at 18-19.

[20] Letter from Representative Matt Krause to Texas Attorney General Ken Paxton, Whether sex change procedures performed on children without medical necessity constitute child abuse, (Aug. 23, 2021), www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0426KP.pdf.

[21] Jack L. Turban MD, MHS, Noor Beckwith, MD, Sari L. Reisner, ScD, MA et al, Association Between Recalled Exposure to Gender Identity Conversion Efforts and Psychological Distress and Suicide Attempts Among Transgender Adults, 77 JAMA Psychiatry 68-76 (September 11, 2019), jamanetwork.com/journals/jamapsychiatry/fullarticle/2749479?resultClick=1. The study showed that “[f]or transgender adults who recalled gender identity conversion efforts before age 10 years, exposure was significantly associated with an increase in the lifetime odds of suicide attempts.” Id.

[22] See Tim Fitzsimons, GOP Lawmakers in Three States Want to Ban Trans Healthcare for Minors, NBC (Nov. 1, 2019), www.nbcnews.com/feature/nbc-out/gop-lawmakers-three-states-want-ban-trans-health-care-minors-n1075361 (writing about bills in Texas, Georgia, and Kentucky seeking to prohibit minors from receiving gender-affirming care like hormone therapy or puberty blockers).

[23] Authors Note: The case referenced is sealed and a citation is not available.

[24] Karen Brooks Harper, His public custody battle helped ignite a movement against transgender health care for kids. Will it carry him to the Texas House?, Tex. Trib. (March 14, 2022), www.ksat.com/news/texas/2022/03/14/his-public-custody-battle-helped-ignite-a-movement-against-transgender-health-care-for-kids-will-it-carry-him-to-the-texas-house/.

[25] Id.

[26] Katelyn Burns, What the battle over a 7-year-old trans girl could mean for families nationwide, Vox (November 11, 2019), www.vox.com/identities/2019/11/11/20955059/luna-younger-transgender-child-custody.

[27] Id.

[28] David Lee, Father who lost custody of trans child runs for Texas House to outlaw child gender reassignments, Courthouse News Service, (December 8, 2021), www.courthousenews.com/father-who-lost-custody-of-trans-child-runs-for-texas-house-to-outlaw-child-gender-reassignments/. The father is now running for Congress and apparently used this story as a way to crowdfund $139,000 for his campaign. Id.

[30] Roseanna Garza, Report: Texas Among Worst-Performing States for Children’s Well-Being, (June 17, 2019) sanantonioreport.org/report-texas-among-worst-performing-states-for-childrens-well-being/.

[31] Id.

[32] Caroline Klapp, Alabama ranks 47th in nation for child well-being, WAFF48, (June 21, 2021), www.waff.com/2021/06/22/alabama-ranks-47th-nation-child-well-being/#:~:text=The%20Kids%20Count%20Data%20book,are%20based%20on%202019%20data.

[33] Turban et al., supra note 21.

[34] Cécile A. Unger, Hormone Therapy for Transgender Patients, 5(6) Trans. Andrology & Urology, (2016), www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/.

[35] Burns, supra note 25.

[36] Id.