Last week, the Supreme Court heard oral arguments in the case United States v. Skrmettiwhich asks whether the state of Tennessee should be allowed to enforce a ban on care for gender-affirming youth.
Everywhere argumentsseveral themes emerged in the questions coming from the Court’s conservative justices. One of these was the supposed danger of gender-affirming care.
“If treatment is blocked, some children will suffer because they cannot access treatment. If the treatment is allowed … some children will suffer receiving the treatment and later wish they hadn’t and want out,” Judge Brett Kavanaugh said. “And so there are risks on both sides here … it’s a difficult crisis as a matter of policy.”
American Civil Liberties Union attorney Chase Strangio — who happens to be the first openly transgender person to argue a case before the Supreme Court — appeared on behalf of the original plaintiffs in the case, several families and a doctor. She pointed out that much of the evidence about grief and transition cited to justify bans on gender-affirming care is old and often comes from studies of very young children. Controversial to Skrmetti are treatments such as puberty blockers and hormones, which do not apply to children who have not reached puberty.
“Evidence shows that once a teenager reaches the onset of puberty, the likelihood that they will eventually stop and identify with their birth gender is very low,” Strangio told the Court. In fact, according to more recent, better-designed studies, this percentage is approx one percent— or less.
But Cavanaugh wasn’t the only judge who seemed to believe that transgender teenagers should be saved from themselves. On several occasions, Justice Samuel Alito referred to recent guidelines from the Swedish government, as well as from the United Kingdom Cass Review. In both cases, health authorities found that the benefits of gender-affirming care had not been shown to outweigh its potential risks in all cases and set new limits on access.
However, as United States Solicitor General Elizabeth Preloger argued on behalf of the United States, neither Sweden nor the United Kingdom has completely banned gender-affirming care. Health officials in both countries recognize that gender-affirming care is necessary at least in some cases.
Cass Review was too largely criticized for selective use of data and bias in the database itself. It is worth noting that Dr Hilary Cass was chosen to lead the review because of her lack experience providing trans health care. And the original ‘terms of reference’ issued by the UK government intentionally excluded “Subject matter experts or people with lived experience of gender services” from the Assurance Team who guided the review process.
But even if the risks and regret rates were higher, would banning gender-affirming care really be good policy? According to many bioethicists, the answer is no.
This is due to a concept called the dignity of riskwhich arose out of the disability rights movement in the 1970s.
“Overprotection,” disability rights advocate Robert Perske wrote in a 1972 paper, undermines a person’s “individuality and potential for growth,” suffocates them emotionally, and prevents them “from experiencing the normal risk-taking in life necessary to normal human growth and development. .”
“There can be such a thing as human dignity at stake, and there can be a dehumanizing debasement in security,” Perske wrote.
Since the 1970s, researchers and ethicists have applied this framework to many other areas of medicine. In 2014, bioethicist Katie Watson wrote a comment at Journal of the American Medical Association implementation of the abortion framework.
Abortion and gender-affirming care are not the same thing—though abortion is it can be gender affirming care. What they have in common is that they are hated by the same people because they both allow people to cast aside rigid, traditional gender roles and take control of their sexuality and reproduction.
And let’s be extremely clear about one thing: It is very, very difficult to access gender-affirming care in the US requires tremendous determination and foresight. To suggest that young people who manage to overcome these barriers do so recklessly, or that providers and parents act recklessly in helping them, is offensive.
In another striking moment from last week’s arguments, Justice Amy Coney Barrett said she knew of no examples “de jure” discrimination against transgender people — in other words, government discrimination against transgender people, as a group, enacted in the form of laws, which is the type of discrimination at issue in this case.
Strangio pointed to, among other things, the US history of cross-dressing bans. These prohibitions date back in the mid-19th century, the same time that states also began to restrict abortion. The struggles for trans rights and reproductive rights in the US are and always have been.
And since its beginnings in the 19th century, the American anti-abortion movement has been a sophisticated disinformation machine. We now see the same people using the same playbook against trans people, and most despicably, against trans youth.
We see it in violence and threats of violence against care providers, a tactic long used by the anti-abortion movement to make the myth of “abortion is dangerous” true – not for the reasons the movement claims. We see this in the misleading and selective use of scientific evidence, or outright pseudoscience. We see this in the harsh and disparaging claims made about transgender people. We see it in the claim that bans like Tennessee’s are simply about protecting people, especially children.
Addressing misinformation requires the dissemination of corrective information everywhere. It also requires critical thinking. So let’s think critically about sadness.
Another commonality between abortion and gender-affirming care is low rates of regret. For example, the Turnaway study found that after five years, 95 percent of participants they still felt that abortion was the right choice for them.
And as a member of the Turnaway Study team Corinne Rocca he told me on my podcast, ACCESSin 2021, of those five percent who say they feel regret, 90 percent still feel that abortion was the right decision for them.
“I think it’s very important to distinguish the right decision or decision-making regret from having negative emotions or even the feeling of regret,” Rocca told me.
And even when people make choices they regret, isn’t that part of what makes us human?
Failure, Watson, the bioethicist, told me, “is part of being an autonomous adult. That’s how you learn. That’s how you develop resilience.”
In a 2022 paper, psychologists Wendy Heller and Haley Skymba he argued that the concept of the dignity of risk can also be applied to adolescent development. Not only is a certain amount of risk appropriate for the youth’s age, but it helps them develop good decision-making skills. Instead of trying to save teens from themselves, they argue, parents and guardians should help them make their own decisions and learn from them — even when they make mistakes.
Prices of regret for elective plastic surgery unrelated to gender-affirming care range as high as 47 percent. Almost 20 percent of people regret bariatric surgery. And about 10 percent of patients who regret having knee replacements. However, we do not limit these life-changing medical procedures based on high levels of regret and dissatisfaction—including young people. Why legislate based on risk fears and regrets about gender-affirming care, where those risks are objectively lower?
It’s about whether or not you see trans people as people—human beings who deserve dignity, the right to bodily autonomy, and the freedom to risk failure.
