'Absolutely unconvincing': Courts uphold state bans on transgender procedures for kids

In the weeks before the Supreme Court reviews the constitutionality of Tennessee's ban on puberty blockers, cross-sex hormones and surgical interventions for gender-confused minors, federal and state courts have upheld similar laws against so-called gender affirming care for children as a proper exercise of legislative power over medical practice.

It's a worrying sign for transgender activists and allies now reconsidering their strategy in light of pending Republican control of the White House and both chambers of Congress, likely affected by the Biden administration's imposition of gender identity over sex in federal regulations and 2024 Democratic presidential nominee Vice President Kamala Harris's support for taxpayer-funded transgender surgeries for inmates.

Missouri's Cole County Circuit Court Judge Craig Carter on Monday issued a sweeping ruling for the Show-Me State in a challenge by families of gender-confused youth after a nine-day bench trial, finding "an almost total lack of consensus as to the medical ethics of adolescent gender dysphoria treatment" that has become "more fractured" in the past year.

Carter also questioned the plaintiffs' strategic decision to argue that Senate Bill 49 is unconstitutional on its face rather than seek "a carve-out exception to the regulation."

The Supreme Court questioned the same all-or-nothing approach this summer in Big Tech challenges to Texas and Florida laws on social media content moderation. It scolded appeals courts for evaluating particular applications of the laws rather than their facial constitutionality.

"The Constitution does not permit a single judge to nullify the results of democratically enacted legislation where, as here, there is a medical dispute about the safety or efficacy of those interventions," Carter wrote.

The state judge cited as persuasive a divided 7th U.S. Circuit Court of Appeals' ruling 12 days earlier that upheld Indiana's ban on pediatric gender-affirming care, overturning a preliminary injunction against Senate Enrolled Act 480 by a trial court.

That majority opinion noted that SCOTUS has long told lower courts to be "cautious not to rewrite legislation" in areas "fraught with medical and scientific uncertainties." 

While the plaintiffs and their allies in friend-of-the-court briefs invoked "medical authorities on their side of the debate … the federal courts do not mediate medical debates," the 7th Circuit majority said. They "have not shown a likelihood of success on any of their claims."

Carter also frustrated the Missouri plaintiffs by reviewing the law under the lowest tier of judicial scrutiny, known as "rational basis," while claining the state would prevail regardless of "which level of scrutiny applies."

It does not require "heightened scrutiny" because the law treats both sexes the same by prohibiting blockers and hormones used for gender transitions across the board, Carter said. 

In just one of dozens of references to the plaintiffs' expert witnesses allegedly undermining their arguments, the judge emphasized that Daniel Shumer, medical director of the gender services program at Mott Children’s Hospital, admitted the law doesn't prohibit females or males with a "gland problem" from taking hormones to bring their levels to normal. 

Shumer's testimony is cited at least 10 times as actually favorable to the state, including on the potential risks of off-label prescribing, the high percentage of his patients with "serious psychiatric issues" and the need for emergency room physicians to know a person's "actual sex." 

The New York Times featured a dissident strain in transgender activism Tuesday, one that urges groups to become less strident as they lose ground with the public and instead adopt the softer, incrementalist approach for same-sex marriage that won the day at SCOTUS in 2015.

"We have to make it OK for someone to change their minds," said Rodrigo Heng-Lehtinen, executive director of Advocates for Transgender Equality. Activists should tell skeptics "It’s perfectly understandable that you have questions" on issues such as gender identity in sports.

Heng-Lehtinen's mother is former Florida congresswoman Ileana Ros-Lehtinen, who joined other former GOP lawmakers in asking SCOTUS to strike down Tennessee's ban.

The Missouri law was prodded by Washington University pediatric gender clinic whistleblower Jamie Reed, whose testimony Carter deemed credible, without "ideological or other bias," in part because she gave up $1.5 million in educational benefits for her children by quitting.

The judge also noted Reed's female spouse has long identified as a man and Reed "seriously considered transitioning herself." Tiger Reed recently went public with her own detransitioning, citing emotional and physical health problems from gender-affirming care.

Gender affirming care is "well outside normal medicine" in the West by treating a mental disorder, gender dysphoria, with drugs that "inhibit normal healthy human growth" and surgery to "remove and replace healthy human organs" such as genitals and breasts, Carter wrote.

He cited the Endocrine Society's estimate that 85% of prepubertal children outgrow diagnosed gender confusion naturally and the Diagnostic and Statistical Manual's estimate that desistance from gender incongruity is 98%.

Quoting the World Professional Association for Transgender Health's 2012 guidelines, known as Standards of Care 7, Carter noted psychotherapy is "highly recommended" because talking can help patients "integrate their trans- or cross-gender feelings into the gender role they were assigned at birth and do not feel the need to feminize or masculinize their body.” 

WPATH's latest guidelines, finalized two years ago, removed draft provisions for age minimums for breast removal and hormone therapy for fear of malpractice lawsuits against practitioners and insurance hurdles for patients. Leaked communications among WPATH practitioners show their concerns about severe side effects and admissions of hiding relevant information.

The Missouri plaintiffs' own expert witnesses acknowledged an emerging national consensus against pediatric gender affirming care and the "remarkably weak evidence" for it as judged by the U.K. National Health Service's systematic review of evidence and reviews by the Department of Health and Human Services and World Health Organization, the judge wrote.

Their expert witnesses were also "absolutely unconvincing" that older minors can make informed consent to gender affirming care, given that state and federal law ban them serving in the military, voting and acquiring commercial driver's licenses, Carter said.

"If we don’t let a 16-year-old buy a six-pack of beer and a pack of smokes, or let an adult buy those items for them, should we allow the same kid/parent team to decide to change a teenager's sex forever?" he asked rhetorically, again citing the 7th Circuit.

The supposed medical "cure" for gender dysphoria is a "journey that never actually ends," with lifelong provision of cross-sex hormones and "some form of psychiatric counseling long-term," Carter wrote. He cited detransitioners who testified including Chloe Cole, whose hormone treatments and surgical procedures left her unable to breastfeed or conceive.

"Physicians are utilizing unapproved drugs in an off-label fashion, and there are few studies to inform us as to the short- and long-term effects thereof," the judge said. They don't "really have enough evidence to adequately warn patients and families of all the possible risks involved."

Carter said he's bound by SCOTUS precedent upholding Washington state's ban on physician-assisted suicide, now a white-hot issue in Canada under the phrase "medical assistance in dying."

The Evergreen State has an "interest in protecting the ethics and integrity of the medical profession" from the blurring of "the line between healing and harming," and so does Missouri, the judge said.