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June 22, 2023

Science Should Not Be Adjudicated in a Courtroom

Judge Jay Moody issued a permanent injunction against a law banning puberty blockers, cross-sex hormones, and surgical interventions for minors.

Another federal judge has struck down a state law protecting children from what should be impermissible medical experimentation.

On Tuesday of this week, United States District Judge Jay Moody issued a permanent injunction against a law passed by the Arkansas legislature banning the administration of puberty blockers, cross-sex hormones and surgical interventions for minors suffering from gender dysphoria.

In the past few years, 20 states have passed laws restricting or banning these kinds of medical treatments for minors. In addition to the Arkansas law, federal judges have issued recent bans against the enforcement of similar laws in Indiana and Florida. More federal injunctions are likely to follow.

Language from these judicial opinions reveals why the U.S. court system is a poor place to evaluate competing claims of scientific research. In Moody’s opinion, for example, he writes, “Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing.”

But that conclusion is not so clear-cut.

Activists advocating for children’s access to what they call “gender-affirming care” have cited studies purporting to show an improvement in patients’ mental health (particularly a reduction in suicidal ideation) and physical well-being after receiving these controversial medical interventions. But more recent research not only revealed serious flaws in the earlier studies but also suggests that the health outcomes of affected individuals may be worsened.

Contrary to the conclusions stated in the Arkansas case (and elsewhere), medical experts across the globe are now acknowledging the very real problems associated with administering puberty blockers to children or surgically removing and altering otherwise healthy body parts. England closed its infamous child gender identity treatment clinic — the Tavistock Centre — in 2022 after concerns were raised about an explosion of diagnoses, rushed treatment decisions and “unquestioning affirmative approaches” to gender transitions, ignoring other mental health concerns and illnesses. Other European countries, including Sweden, France and Finland, have backed away from prescribing puberty blockers or surgical intervention for children displaying symptoms of gender dysphoria, in favor of psychotherapeutic treatment.

The anodyne term “gender-affirming care” itself belies the serious concerns behind legislative decisions to restrict or seriously regulate access. For example, we’ve been told that use of puberty-blocking drugs is a “reversible” treatment. But physicians with extensive experience have recently admitted that drugs that prevent a child from going through puberty leave the child’s body in a permanently sexually immature state, incapable of full adult sexual function.

The consequences of surgical interventions are equally sobering. Women who have complete mastectomies will never be able to breastfeed children. Patients who undergo phalloplasty or vaginoplasty (the attempt to surgically create a penis on a female or a vagina on a male) will never have genitalia that function as the actual sexual organ does, and often have medical issues associated with those surgeries for years thereafter.

There are more frequent accounts of transgender individuals who have since “detransitioned” — like Kayla Lovdahl, Ritchie Herron, Chloe Cole and Walter Heyer — who are now warning others of their devastating experiences. Many of these individuals were minors when they underwent what was sold to them as “gender-affirming care,” but even some who were adults at the time now express regret. Significant numbers admit that they were suffering from mental illness or emotional trauma that went unaddressed and untreated.

Similarly, parents of children who find themselves swept into the transgender universe often express shock and betrayal at what they were led to believe by professionals they trusted was going to be a solution for their children’s emotional problems, only to discover later that irreversible decisions were made hastily and with insufficient information.

The gravity of the situation is compounded by the politicization of the scientific research that is taking place in this space. Researchers like Lisa Littman (who developed the term “rapid onset gender dysphoria”) who challenge the prevailing narrative about gender identity can find it difficult to publish their work. This makes it easier to argue in court that there is “no evidence” contrary to claims being asserted by those on one side of a scientific issue.

In this fraught climate, it is appropriate for elected officials to prevent children and their families from being exploited by the ill-informed or the unscrupulous. Children have no way of understanding the implications of decisions they are being permitted to make — and often, their parents are no better informed. Add to that mix schools, social workers, psychologists and counselors who browbeat families into “accepting” their children’s new gender identities (or encourage the adoption and use of these identities without parents’ knowledge), and you have a situation that is desperately in need of legislative and regulatory safeguards.

Judges have a legal education, but not necessarily much experience in the sciences. (Judges who are members of the patent bar are notable exceptions, but they are a distinct minority.) Even those with undergraduate education in a scientific field will have had relatively little experience with academic research and publication. And in any case, the U.S. civil litigation system is ill-suited for the adjudication of competing scientific claims upon which rest complex determinations of the needs of people facing these health issues. Those conclusions should depend upon thoroughly vetted research and longitudinal studies, not clever lawyering in legal briefs.

State laws that prevent the exploitation of children and their families pending definitive medical determinations are intended to advance the best interests of citizens. The judges striking down these laws may think they are protecting personal freedom. But what they are really doing is removing needed protections for some of the most vulnerable people in our society.


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