It’s not medical care though
Some warped legal reasoning here from a University of Alabama law guy:
Laws that prohibit physicians from providing treatments such as puberty blockers and cross-hormone therapy to minors are bad public policy. Their advocates claim that these are efforts to protect kids, who they argue may later change their mind, from medical treatments they characterize as irreversible. But these arguments don’t hold up to scrutiny: The laws—such as the one Arkansas just passed and those that more than a dozen other states, including Alabama, Oklahoma, South Carolina, and Texas, are actively considering—will certainly harm transgender children, denying them medical care that they need and causing them psychological pain. That should be reason enough to oppose these laws.
Wait a second though. It’s hotly disputed whether puberty blockers and cross-hormone “therapy” are “treatments” at all. What’s the disease they’re treating? There is no disease, there’s an idée fixe about being the “wrong” gender and wanting to “change sex” to correct the mistake. It’s a delusion, and it’s not at all clear that it’s in the patient’s best interest to treat the idée fixe as real and needing “treatment” in the form of fiddling with the genitals and breasts and hormones.
The most obvious, and compelling, constitutional objection to Arkansas’s Save Adolescents From Experimentation (SAFE) Act and laws like it arises from the Fourteenth Amendment’s guarantee of equal protection under the law. That guarantee means, among other things, that a state government may not target one group of residents for discriminatory treatment arising from animus, dislike, or irrational fear.
Since the 1970s, the Supreme Court has consistently rejected moral disapproval of a particular group of individuals as a constitutionally legitimate basis for imposing targeted legal burdens on the group. Thus, when Congress attempted to, in the Court’s assessment, “prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program,” the Supreme Court unanimously struck down the ban for otherwise eligible “hippies.”
But this isn’t that. The laws are meant to benefit the putative trans teenagers over the long haul, because most adolescents who say they are trans desist as they get older.
It may also be true that some legislators find trans dogma irritating, but the rest of us out here in the big world are watching in horror as activists breezily dismiss all concerns about for instance what about this teenager’s future sex life and reproductive life? Is it really a good idea to destroy both forever just because the teenager claims to be this thing called “trans”? Isn’t it possible that the legislators – even Republican ones – are right to see that as a problem? Isn’t it possible that legislators who take the other view are being appallingly reckless with other people’s futures?
In clear contradiction of this constitutional rule, Arkansas’s SAFE Act singles out one group in need of medical care—transgender children—and makes the provision of that care within the state unlawful.
But it isn’t medical care. It isn’t medical care. It isn’t. Cutting off healthy breasts and penises isn’t medical care.
How do they not see this?
Karolinska Hospital abolishes the use of puberty blockers for minors
https://segm.org/Sweden_ends_use_of_Dutch_protocol
This post from last year quotes from an article about a backlash against transing children at the Karolinska:
http://www.butterfliesandwheels.org/2020/a-rapid-change-in-public-opinion/
Is age a protected category under the Fourteenth Amendment? In some states it’s illegal to purchase alcohol for a minor. Are those laws unconstitutional?
Strange to see this argument from the side that insists being trans should not be ‘medicalised’ – by which they seem to mean ‘treated as if it were a medical condition’.
Okay, but what if the basis for those laws is not moral disapproval?
But saying:
Doesn’t address:
I mean, are the medical treatments reversible? The second part of that paragraph doesn’t address that concern at all, it only talks about the fact that “transgender kids” will suffer “psychological damage” from not getting the treatment, which is to say they’ll be unhappy about it.
Which I mean, duh, but it still doesn’t tell us anything about the core concerns being expressed by those who oppose such treatment. This is the political game of answering a different question when the one you’re asked is too tough.
Further in the article it states:
But it does have one – the fact that the “medical care” in question is irreversible, at least according to its critics and this article does nothing to refute that. Giving children a right to make irreversible decisions which they may not have the maturity to make, is something we generally avoid.
Consider laws around contracts – designed to protect minors from exploitation – that we recognise that minors are not in fact fit to make certain decisions is a well worn part of law just about everywhere, and a bad contract is generally at the very least reversible.
The article goes on to talk about Arkansas’ laws regarding the age of consent, but this is an issue regarding pre-pubescents, in other children even younger than 14. It tries to push the idea that this law is a violation of parental rights, except those rights are proscribed to some extent – otherwise child abuse laws wouldn’t be a thing.
You can’t just raise your kid however you like, there are limits.
Besides, whatever Arkansas’ position on other issues may be, this is still a reason beyond simple dislike of trans individuals.
This is part of the problem I have with TRAs in general, they don’t actually engage in good faith arguments that address their opponents’ points, instead attributing malice, and hoping that people believe them enough regarding that malice that they don’t notice that the concerns being raised haven’t been countered in any way.
I am generally hesitant to take medical decisions out of the hands of trained professionals. I don’t think a judge is a doctor, and I’d much rather the doctors have the freedom to prescribe treatments as necessary, but I think this article illustrates a serious problem within TRA advocacy, a tendency to ascribe the worst motivations to people, rather than dealing with what they’re actually saying.
It is profoundly adolescent.
I read one version of the Alabama bill a while back, and I found the background science section quite solid and well written. This surprised me, and made it clear it wasn’t written by Alabama legislators. I suspect most of these bills are sourced from outside, and I would not be surprised if they had the same science background section. I don’t get the impression that this Alabama law guy saw more than the highlights.
The ACLU is running ads claiming “doctors say” puberty blockers are safe, reversible, and necessary, and this medical “care” is lifesaving. There are doctors who do say this. If the medical “community” is not uniformly willing to look at whatever science exists, there is little hope for others.
I don’t like legislatures getting involved in the issue right now. I think it’s a right wing effort to divide and distract, and I think they are hiding behind reasonable language to stick it to those deviants and liberals, similar to the language in many anti-abortion bills. I wish this would start by the medical community policing their own and declaring these treatments to be malpractice. But, institutional capture, you know.
Yes, it’s not ideal.
This reminds me of something that Jane Clare Jones posted today:
https://mobile.twitter.com/janeclarejones/status/1394235099726680067
Colin Day @3,
The 14th Amendment doesn’t really have “protected categories” as such. (Anti-discrimination laws often do.) You can bring an Equal Protection Clause challenge based on pretty much any differential treatment. It’s just that in ruling on that challenge, courts apply different levels of scrutiny depending on the nature of the categorization. Most of the time it’s “rational basis scrutiny,” which means pretty much that — the government just has to have a rational (not necessarily correct in the court’s opinion) basis for treating people differently. Race, national origin, religion get “strict scrutiny” — the differential treatment must be narrowly tailored serve a compelling governmental interest.
Age is subject to rational basis review.
The government usually wins rational basis challenges; the joke about strict scrutiny is that it’s “strict in theory, fatal in fact,” meaning the government usually loses, though that’s an oversimplification.
There’s also “intermediate scrutiny,” which is somewhere in between and applies to gender.
Also, strict scrutiny can also apply in other contexts, such as the burdening of a fundamental right — this comes up a lot in First Amendment cases.
The Atlantic article says the phrase “medically necessary” seven times, and this is what we are up against. Aetna, for example, has a Medical Clinical Policy Bulletin on Gonadotropin-Releasing Hormone Analogs and Antagonists that says (with my bolding):
I think the purpose of such a bulletin — and the phrase “medically necessary” — is to say what Aetna covers. I imagine Aetna could have called it “medically cromulent” and say they cover “medically cromulent” treatment.
But I worry that “medically necessary” can also be rhetoric. And maybe the Atlantic is correct, that laws cannot deny “medically necessary” treatment. And maybe judges can compel parents to give their children “medically necessary” treatment.
I like how Sackbut framed this in #6 — Ideally, the medical profession would police itself, and fix this from within. But the healthcare industry includes the insurance companies, and the American Psychiatric Association (that wrote the DSM-5), and they are all influenced by the pharmaceutical companies (who see “trans” as a market for drugs). So I don’t know who could go first to undo this mess, against the interests that got us into this mess.
Maybe I should study the history of lobotomies, and how lobotomies ended.