After losing in courts across the country, DOJ and the FTC have steered litigation over gender-affirming medical care for minors to a single Texas judge.
So, are "alterations" to intersex newborns just going to stop, letting the chips fall where they may for some portion of 1.7% of all births in America?
Will the term "intersex" simply be removed from the medical lexicon? That's sounds like an easy solution...at least for stupid people.
A lot of those innocent children with legitimate gender dysphoria will be in right-wing households. Just sayin'.....
That statistic is wildly misleading; the rate at which babies are born with intersex conditions that make their sex genuinely ambiguous is more like 1 in 2000. 1 in 2000 is enough that we should be (but aren't) regulating unconsented-to cosmetic surgeries on that population, but grossly exaggerating its size isn't doing anyone any favors.
Unfortunately, the Cass Report has little need to import right wing bigotry from America; the UK is more than capable of generating anti-transgender sentiment masquerading as science on its own.
Deeply value the legal insights in this newsletter but could do without the both-sidesing of the clinical issue here. A drive-by mention of the Cass Review as reliable because it wasn't commissioned by "U.S. culture warriors", when it was widely criticized as methodologically flawed and subject to political influence (they have culture warriors in other countries too, as it turns out) seems somewhat careless. The description of WPATH as a "low-quality" guideline elides the fact that for ethical or practical reasons, a great amount of pediatric medicine relies on "low-quality evidence"; for instance, it is both impossible and unethical to perform a double-blind study of puberty blockers or hormone therapy. As you say, the legal issues seem to rather forcefully back WPATH. Making that argument doesn't require steelmanning the government's argument on the science, let alone saying it "militates in the other direction".
I'm sure Professor V. is genuinely aiming for objectivity not performative "bothsidesing" here. He does say he doesn't find Cass especially persuasive further down. Sure the UK has transphobes, and for some reason the courts and the Equality and Human Rights Commissioner have decided the Gender Recognition Act is second class law but it's not transphobic to want to try and get these difficult questions right for everyone. It's pretty safe to say the Trump administration isn't trying, and I can only wish it's members had even a tiny fraction of the humility shown in this piece
One can find studies proving whatever one wants these days. I commend Professor Vladeck for not taking a purely one-sided view on the science and policy questions.
Much of the evidence supporting hormone therapy and surgery for transgender minors traced back to Annelou de Vries and her colleagues, but her work had several weaknesses (1).
USPATH, the U.S. affiliate of WPATH, succumbed to censorious demands of transgender activists and cancelled the appearance of Ken Zucker, whose "research showed that most young children who came to his clinic stopped identifying as another gender as they got older." (2)
Johanna Olson-Kennedy found that puberty-blocking drugs "did not improve mental health in children with gender distress" but withheld publication for political reasons: "the finding might be weaponized by opponents of the care" (3).
Censoriousness is antithetical to science. Perhaps the U.K.'s PATHWAYS clinical trials (4) will provide more reliable evidence on which to base government policies.
1) The limitations of de Vries’ study have been well accounted for and addressed by all who follow studies of gender dysphoria and transgender people. The Netherlands adopted WPATH standards and recommendations for care.
2) Ken Zucker is (or was) a non-affirming therapist who did not acknowledge gender dysphoria in his minor patients—this is conversion therapy and it is harmful. This might account for the “censorious demands” from actual transgender individuals and the parents of actual transgender children.
3) Olson-Kennedy did not release those results under the current political administration because puberty-blocking drugs by themselves do not treat the symptoms of depression, fear, anxiety, etc., that transgender youth and adults experience from living every day amongst transphobic and/or misinformed people in the general population.
4) There have already been notable issues with the “Pathways” study in the UK so don’t hold your breath, and, in the meantime, suicidal ideation, attempted suicide and actualized suicide has all risen in the UK because of refusing to provide gender-affirming medical care to those who benefit from it.
1. Each side says that their viewpoint has been proven by studies. You mention The Netherlands but not the U.K.'s closing of the Tavistock clinic and its new PATHWAYS trials that are meant to be more scientifically rigorous. As I said, I commend Professor Vladeck for not taking a one-sided view on the science and policy questions. That kind of open-mindedness is rare these days.
2. Ken Zucker is one example. You seem sympathetic to his being censored because of his dissenting views. I find that approach very dangersous. In FIRE's (thefire.org) free speech survey on college campuses, LGBTQ students showed particularly high support for shouting down campus speakers or blocking others from attending campus speeches. (Support for free speech in general is unfortunately low among all students.)
3. The New York Times quoted Olson-Kennedy herself, as I indicated in my original comment. I know that people claim all sorts of other reasons for not releasing her study, but her own words are primary evidence.
4. Notable issues with the PATHWAYS study? There were notable issues with Annelou de Vries's research despite your claim that it was all on the up-and-up. The U.K. government seems to be (finally) trying to study the issue objectively and addressing comments on the proposed study (1).
You take an entirely one-sided view and provide no citations. I recognize the need to address the problems gender dysphoria causes, but I also recognize that there are legitimate questions about the scientific integrity of parts of the transgender rights movement. As for the movement's censoriousness, when I've expressed the opinions I expressed here, I have been called nasty names and told that my views should be censored -- right here in Professor Vladeck's Substack site. Both the "left" and "right" have become very censorious, and it's a real danger to our society.
O’Connor and Pittman are also responsible for the incredibly long sentences of the Texas 9, ICE protestors whose protest turned violent, most sentenced to 50-70 years in jail.
"Judge Kearney in the Eastern District of Pennsylvania quashed a demand for children’s medical and psychological records, finding the link between patient identities and any fraud theory “tenuous at best.” Judge Bissoon in the Western District of Pennsylvania granted a motion to quash in the UPMC matter, writing that the government’s demand carried “more than a whiff of ill intent."
This administration has demanded personal information on many of us. It has not, as far as we know, been successful in most cases. Cases. But I'm not exactly sure if we know yet what the extent of of their potential "ill intent" could be.
A lot of Americans may be conflicted about gender affirming care and young people. But they also might want to consider the ramifications of a government that asks for access to data on our most personal decisions. It would be naive to think that the demands end here.
The examples are not perfect analogies, but it strikes me that the kind of judge shopping and role of effectively single judge courts reported in this post are all indications of an alarming trend towards Tyranny not of the Majority or even the Minority, but Tyranny of the Extremists. If one Judge can effectively exercise power nationwide over individuals and institutions, then what is to stop the most extreme views on any issue from prevailing nationwide, whether it affects directly only a few or many of us? The party primary system in elections, which if I am correct is mentioned nowhere in the Constitution, already gives disproportionate political, and hence ultimately legislative influence, to the most extreme, dedicated supporters of a party. Will now the most ideologically or otherwise biased, even bigoted, human beings who become judges exercise a disproportionate influence on the evolution of the law? Open carry machine guns to day care facilities nationwide ? Doctors who lose their licenses by following best medical practices nationwide? Unrestrained freedom for oligarchs with no obligations? Elimination of civil service protections? Wars on again, off again depending on the time of day? The characterization of countries, groups and individuals oscillating between “good” and “scum” in successive posts on social media? Will the Supreme Court eventually have a say on this question, and what would its current Robertian version decide? Maybe the concerns I have are unthinkable, but there are many instances of what was once unthinkable, a few short years ago having now become the new daily norm.
Thank you Glen. I am reminded by your comment of a quote by Edmund Burke, the 18th century Anglo-Irish politician and philosopher
"Manners are of more importance than laws. Upon them, in a great measure, the laws depend. The law touches us but here and there, and now and then. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in."
Burke strongly supported the American colonies in the War of Independence, viewing their struggle as a justified defense of traditional English liberties against heavy-handed taxation and government overreach. And fiercely critiqued the French Revolution, arguing that radical political change based on abstract theories would inevitably lead to chaos, mob rule, and tyranny. How right he was in both cases in my opinion. Ironically given the ghastly humans who call themselves and are called conservatives in the US today, Burke is viewed as the father of modern conservatism - an advocate for tradition - who stressed that established institutions, religion, and historic values represent the accumulated wisdom of past generations.
Oh my goodness, a history lover. Tis' a subject I'd wished were mandatory for the full 4 years of High School. I honestly believe that the entire world would be a little bit better if that were the case. I thank you so very much for sharing this quote, as I've not read it before now.. Beautifully written.
I appreciate the careful legal analysis, but the basic thing that comes through is that the Trump Administration is putting forth a cruel anti-trans policy in a tyrannical way, and even the anti-trans Supreme Court has left open an avenue for the lower courts to deem it so.
Their ruling on trans ADULTS in the military is proof of their real agenda. Not counting the abortion ruling. The reshaping of the USA into a religious state is their goal. It's been spelled out for at least 2 decades now, more like 4 decades for some of us.
"I don’t imagine I’m going to persuade anyone about who’s right on the science, medicine, or policy here. Indeed, I’m not entirely sure myself."
I completely agree but I would be far more comfortable letting the medical community hash this our rather than the politicians (on either side of the aisle).
Politics has pervaded so much of society in the U.S. that I no longer trust most institutions, including major medical associations, to be objective and impartial.
The U.K. seems to have come around to acknowledging the flaws in their previous approach, with plans for more rigorous studies on medical care for gender dysphoria (1). It's unfortunate that so many people with doubts about the orthodox "progressive" approach were ignored or denounced as bigots. That left us with the disaster of the Trump administration intellectually and morally bankrupt approach.
I don't put much trust in the courts these days either. I'm particularly disturbed by the fact that the conservative Supreme Court Justices have so often shown political bias.
Politics is nothing more than a group of people coming together to make a decision. You and your family deciding what restaurant you are going to eat dinner at is politics. And, I'm sure in the majority of instances you guys do fine. Unfortunately, because of history we've made religion and government politics out of bounds for discussion for far too many years. I'm of the belief that if we could be a civil society both could be discussed with the same ease as steak or fish for dinner. The ugliness we're going through presently was given permission by the most powerful and wealthy man in the highest office in the land. If that isn't enough to wake up We Peasants, then I'm at a complete loss of anything constructive to add. ...Teach The Children Well....
The seriousness of your essay today, notwithstanding, I am struck today by the continuing frustration of solid logic and moral strength by the sheer ignorance and willful abuse of political power.
Since you brought up Texas, Steve, let me share the following regarding the intellectual and moral integrity of Republican Elected and Appointed Class members there:
Rumor has it that Texas Republicans will act to allow dead Republicans to continue to hold office. They believe that a dead Republican in office is better than the risk of a live Democrat. Further rumors suggest that the Texas Republicans will push the theory further for eventual testing in the U.S. Supreme Court, by appealing to Mitch McConnell family to bury him in Texas so they can run him for elected office. “We should not lose our best to death; especially in Texas (where silent Republican votes are considered assent and consent and are counted)” a spokesman was heard to say. South Carolina spokesperson was said to have been heard muttering “damn good idea.” [Parody is a terrible thing to waste when the world is such a target-rich environment]!
It seems to me that Donald J. Trump destroys any shred of credibility that the Unitary Executive Theory is sound Constitutional Reading, let alone, interpretation.
The Roberts’ Court has neutered Congress and has cast its lot with the Executive, and the Founding Parents cry “foul.”
The X family of companies have forum selection clauses in all their contracts that choose the state and federal courts in Tarrant County as venue for any dispute. It's not clear that the companies have a presence in Tarrant County other than the special relationship they enjoy with the legal community, and in my case against X Corp. and Musk (where the forum selection clause clearly did not apply) there was blatant racketeering throughout the proceedings. Attorneys for X Corp. did nothing but lie to the courts, and the courts did nothing but sign the orders given to them by X Corp. No comment from the Texas Supreme Court:
I sent courtesy copies of that petition through the Texas efile system to the ACLU, FIRE, EFF, etc, but have not heard from anyone. I did, however, get a letter from the Tarrant County Bar which I have not had a chance to respond to yet. Stay tuned.
Also, the SCOTUS is refusing to docket the petition that cites your paper with Carlos Vázquez, "State Law, the Westfall Act, and the Nature of the Bivens Question." U. Pa. L. Rev. 161 (2012):
As a scientist and former drug developer, I'll just point out that there's really no such thing as "settled medical science." Science is, by design, evolving based on data and is structured to be self-correcting - when new or contradictory data is developed, theories and medical recommendations change. They are never black-and-white, even if presented as such. (How many years did it take to discover that trans fats are actually worse than saturated fats?) There are also individual differences which is why clinicians are still taught to use their best clinical judgement based on the data and each patient.
The best place to make such difficult decisions is in the doctor's office with patients and parents and definitely not in a courtroom.
Regarding your last sentence, when a question of rights is in play and there's no societal consensus, what alternative is there besides court cases?
Regarding gender "transitioning", some say that not even the parents should have a say without the child's permission. Others say that for medical treatments, only the child, parents, and medical practitioners should decide. Still others say that a young child isn't mature enough to make such decisions or even to give informed consent. How can such a fraught issue be settled without court cases?
This is so infuriating. As someone who interacts with dozens of both the parents of LGBTQIA+ youth and trans and non-binary youth, themselves, I will try to do the right thing here and attempt to inform you, an apparent anti-trans troll, that children will tell you who they are. Are you willing to listen?
Very few kids who “consistently and persistently” identify as transgender change their minds. Those who do most often cite caving under pressure from family, peers and society.
There are many, many studies that point to gender-affirming care, which may or may not include puberty blockers or HRT, being hugely beneficial. If you can find all the sources you list above, you can find more recent studies, as well, yes? You can find the sources that reflect the actual opinions of transgender youth, yes?
Some kids will explore their gender identity, especially around adolescence. Some of them stay gender non-conforming, or come out with a particular sexual orientation.
A small percentage of these exploratory kids settle happily into accepting their assigned sex at birth as their gender. This is also fine. I can’t even qualify these kids as “detransitioning” - their gender (and/or sexual orientation) exploration is just a part of their growing up. It’s how that is received and handled that matters.
If you are an adult who refuses to give children any credit for knowing who they are; if you don’t believe children should have any modicum of respect, rights, or basic dignity; if you don’t believe that trans people have existed throughout our history; if you think these children should be denied the array of affirming care that makes them happy and keeps them healthy; well, then productive conversation with you is a waste of time.
And, Vladeck should stick with legal analysis. He comes pretty close to mimicking Alito and Kavanaugh who punish trans kids from the bench while claiming the “science is unsettled” and refuse to say that trans people deserve equal rights and protection under the law PERIOD. It shouldn’t matter where in the country a case is held; if judges somewhere think one class of people don’t deserve equal rights and protection under our Constitution because of who they innately are, that is a problem and it’s wrong.
Finally, because I’ve just had it after
this horrible year of demonizing CHILDREN and trans adults - I will repeat what members of the LGBTQIA+ community keep saying: Too many people and those in the media, including Vladeck, ignore or refuse to listen to or include — much less “center” — the voices of transgender youth and their parents in their articles, pieces, cases, trials (or lack thereof), etc.
Y’all should be ashamed of yourselves.
Not once in this piece does Vladeck ask a parent of a trans child how they feel about the Trump administration being so obsessed with harassing their medical providers, forcing their children to stop receiving specialized medical care, and going on an unprecedented rampage to access private medical records of minors.
Neither you nor Vladeck nor anyone commenting here who does not have a trans child, of any age; or a beloved trans family member or friend; or who is not a qualified and experienced, affirming medical provider of trans children, has a place on this podium. This infuriates me. You have no skin in the game? Go away.
Parents of these beloved children have had to see their kids be bullied, scorned, fetishized, questioned, threatened, read horrible things about them, hear politicians and others say horrible things about them, know that people are choosing to lie about them, lose their right to specialized medical care, and literally witness their kids being emotionally abused by politicians, judges, and people like you and JK Rowling who think they know what they are talking about.
Ultimately, the science is a side-show. That’s what you and Vladeck and others don’t understand. I don’t need science to tell me who my kids are, or whether I should love and accept them. Or get them the best available medical treatment that I can so that they can be as happy and healthy as possible. And that is what Christ-like looks like. Just in case you were going to raise religious objections next.
I'll read your full comment at a later time. I stopped when you called me "an apparent anti-trans troll" after saying that you would "try to do the right thing". The right thing is to not call other people names and to not make assumptions about their motivations.
I'm not anti-trans. I think that all people should be treated with respect as individuals. As far as I know, I've only met a few trans people in my life, but I treated them with the same respect that I try to treat everyone. I don't judge people by their sexual orientation.
I replied earlier about your calling me an "anti-trans troll", which presumes prejudice on my part and a deliberate intention by me to antagonize others, neither of which is true. You asked if I'm willing to listen. Yes, I'm always willing to listen, which is why I've now read the rest of your comment even though you insulted me.
Unfortunately, your comment reflects a dogmatic ideology that brooks no questions or dissent ("Go away"), chastises those who don't fully share your viewpoint (I'm an anti-trans troll; I should be ashamed of myself), and seeks to silence those who don't subscribe in full to your worldview (I don't have "a place on this podium"), all while accusing *me* of being antagonistic. If you want to have productive conversations, I suggest that you stop insulting others and telling them they have no right to express their opinions. That won't make the world a kinder and more tolerant place.
You wrote "I don’t need science to ... [get trans children] the best available medical treatment that I can ..." You seem to think that you know what's best even without scientific studies. It's clear to me that more reliable scientific studies are needed, for the reasons I originally stated. It's also clear that you see no room for doubt or no need for science, so further discussion of the quality of the scientific evidence is pointless. I'm willing to discuss other aspects of this issue, but expect that I'll continue to be insulted and lumped in with Trump. If you cannot avoid doing that, we should call it quits.
I hear your frustration. I'm a lawyer, a high school Con law teacher, and the father of a trans kid. It's really hard these days. And bad court decisions have made things worse. Courts seem to cherry-pick the "scientific evidence" that supports their view. And JK Rowling and the NYT have made things worse as well. Heavy sigh. Hang in there.
Are we going to have the courts decide on the best path for minors with a mental health issue, and the parents, and their chosen psychiatrist, as there is plenty of conflicting information on the correct treatment for this group as well. I'm not aware of a government federal law that states individuals must pass certain rules before they have children. In some states, that age can be as low as 15 years old and legally married. Yet we have various laws, via states for adopting children. Most, stating that they must be 21 and older. We allow 18 year old individuals to kill or be killed via the military. Yet they must "mature" for 3 more years before they can lawfully smoke a cigarette or drink a beer. What I'm trying to convey I suppose, perhaps our courts aren't always on the side of wisdom or common sense. Certainly our States can't seem to agree on many laws.
I think most people would agree, as I do, that our courts aren't always on the side of wisdom or common sense (to put it mildly), but as I said earlier, the unfortunate politicization of our institutions has left me distrusting most of them, including major medical associations.
What should we do if we can't trust any of our institutions? There's no good answer.
The more zealous transgender-rights activists resist even weighing the scientific evidence impartially, often denouncing anyone with sincere doubts about the strength of the evidence and calling for them to be silenced, as happened to me at least twice in this forum. That's not the way that people who truly value science behave, and it calls their definitive claims about evidence into doubt. The lack of an international consensus on the strength of the evidence supporting gender-affirming care is another relevant factor. Needless to say, the Trump administration can't be trusted at all, about anything, so I don't think the courts should be excluded from assessing the trustworthiness of the various arguments about gender-affirming care.
There are many issues that I have personal opinions about, but I try to at least consider opposing arguments. "Are twelve-year-old children mature enough to make informed decisions about gender-affirming care?" is one such question.
Are 15 year old children mature enough to decide to marry? In some states that is legal. Are 10 year old children mature enough to be told what to believe in, religiously? Are 17 year old children mature enough to decide that the military is the place for them? In all of these examples we've already, as a society, that decision rest on the parents and their children. I'm good friends with a 67 year old who is in the process of transitioning, and as I've known this individual and their family for ages I can speak from their views with confidence knowing how they feel about this issue. I'll add that society already allows a male and female to marry and produce children with a blood test as their only requirement for this. Should we not also have a say in their mental health capabilities for raising their children? I'm not a huge fan of this new era of the dictatorship of families and their decisions about their own personal business. Personally, I wouldn't allow parents to push a specific religion on their children, but understand that is a decision for the family to decide and not the courts. We must come to the knowledge that mental health is just as important as physical health is in our decision marking. If our current POTUS and many of his "helpers" isn't proof enough that our society lacks standing in what is "best" for the children then I'll politely now out.
Your questions are selective. Should parents be allowed to sacrifice their children to a pagan god? I'm sure the consensus on that one is "No!". This is of course an intentionally extreme example to show that there are limits; then we can discuss what those limits are.
When there's no social consensus on some issue, it's hard to know what to do. There will always be some who say "The government has no role on this issue whatsoever, end of story," but that maxim doesn't apply universally; if it did, we would have no laws at all. Lacking reasoned arguments, we're left with nothing but angry debates.
On mental illness, should the government be allowed to compel psychiatric treatment for people who are a danger to themselves or others? What should the threshold be? You'll get the entire spectrum of opinions on this question. How should it be resolved?
The main point of my earlier comments was that I believe the evidence for the U.S. approach to gender-affirming care is weak. In response, I was predictably told (though not by you) that I'm bigoted and that I should go away. That kind of response only reinforces my belief that the gender-affirming care movement is driven more by ideology than by scientific evidence.
Anyway, we know where we each stand, and I acknowledge that you are motivated by compassion. I am, too, despite what some other readers think.
Sadly,it wasn't so long ago that there were sacrifices in the name of their God du jour, in many countries. My questions are selective for the reason of showing how some of our laws are not only selective, but lack any common sense on what today's society, using science, considers a fully mature brain. Mid 20's is the best they've come up with and into our 30's for a stabilized brain. I may be misunderstanding your meaning of selective, but I think asking why society feels an 18 year old (17 W/parents permission) is mature enough to kill or be killed in the military, yet not responsible enough to smoke a cigarette or drink a beer.
I just think it is off putting that the loudest voices for wanting new regulations on these individuals are religious people. How can they use any science to point out their beliefs about trans needs when their beliefs in a God have never been proven by science? Seems a bit disingenuous to me. Personally, I'm against abortion, but will never vote against it. Women didn't have much of a voice in the Bible nor were their voices loud in our constitution. I think it's past due to give them a voice on their own body. Now we seem to have a government that is going to dictate the correct levels of testosterone men over 30 require for military service.
Anywho, great discussion, good points, and I wished society, as a whole, could have civil debates as well. I guess I should add to my wish for the 4 years of High School to contain history courses throughout, should also have debating classes mandatory. As we did during the 70's.
Maybe this is the wrong place to do it, but if Slaughter stands for the proposition that the FTC is entirely under the Executive Branch, how can it exercise quasi-legislative features like proposing new regulations that impact private citizens or private conduct, such as between a hospital and patients? Did Roberts really say that Congress may delegate its authority but the President CANNOT?
I've wondered how they got away with that "quasi-legislative" and "quasi-judicial" language. I'm not a lawyer, but this use of "quasi" seems like Congress digging a secret tunnel to the Executive branch. I like the idea of independent agencies, but they don't seem compatible with our Constitution. Then again, I suppose a fourth branch comprising independent agencies would be just as corruptible as the others.
(Nothing I wrote is meant as a defense of the Trump administration, which I consider the worst in my lifetime by far.)
There is never, ever, a wrong place to post love. Period!
Peace to you and yours.
So, are "alterations" to intersex newborns just going to stop, letting the chips fall where they may for some portion of 1.7% of all births in America?
Will the term "intersex" simply be removed from the medical lexicon? That's sounds like an easy solution...at least for stupid people.
A lot of those innocent children with legitimate gender dysphoria will be in right-wing households. Just sayin'.....
That statistic is wildly misleading; the rate at which babies are born with intersex conditions that make their sex genuinely ambiguous is more like 1 in 2000. 1 in 2000 is enough that we should be (but aren't) regulating unconsented-to cosmetic surgeries on that population, but grossly exaggerating its size isn't doing anyone any favors.
So I'm only 1/2000?
Well, in some world, I suppose.
1 in 2000 people are!
How can I not be convinced?
You used an exclamation point.
Ah, that 20 December executive order makes things so much simpler—those who grab genitalia, and those whose genitalia is grabbed.
Thank you, David.
That's as near a perfect statement as anything I can come up with.
Quite welcome!
Unfortunately, the Cass Report has little need to import right wing bigotry from America; the UK is more than capable of generating anti-transgender sentiment masquerading as science on its own.
Deeply value the legal insights in this newsletter but could do without the both-sidesing of the clinical issue here. A drive-by mention of the Cass Review as reliable because it wasn't commissioned by "U.S. culture warriors", when it was widely criticized as methodologically flawed and subject to political influence (they have culture warriors in other countries too, as it turns out) seems somewhat careless. The description of WPATH as a "low-quality" guideline elides the fact that for ethical or practical reasons, a great amount of pediatric medicine relies on "low-quality evidence"; for instance, it is both impossible and unethical to perform a double-blind study of puberty blockers or hormone therapy. As you say, the legal issues seem to rather forcefully back WPATH. Making that argument doesn't require steelmanning the government's argument on the science, let alone saying it "militates in the other direction".
I'm sure Professor V. is genuinely aiming for objectivity not performative "bothsidesing" here. He does say he doesn't find Cass especially persuasive further down. Sure the UK has transphobes, and for some reason the courts and the Equality and Human Rights Commissioner have decided the Gender Recognition Act is second class law but it's not transphobic to want to try and get these difficult questions right for everyone. It's pretty safe to say the Trump administration isn't trying, and I can only wish it's members had even a tiny fraction of the humility shown in this piece
One can find studies proving whatever one wants these days. I commend Professor Vladeck for not taking a purely one-sided view on the science and policy questions.
Much of the evidence supporting hormone therapy and surgery for transgender minors traced back to Annelou de Vries and her colleagues, but her work had several weaknesses (1).
USPATH, the U.S. affiliate of WPATH, succumbed to censorious demands of transgender activists and cancelled the appearance of Ken Zucker, whose "research showed that most young children who came to his clinic stopped identifying as another gender as they got older." (2)
Johanna Olson-Kennedy found that puberty-blocking drugs "did not improve mental health in children with gender distress" but withheld publication for political reasons: "the finding might be weaponized by opponents of the care" (3).
Censoriousness is antithetical to science. Perhaps the U.K.'s PATHWAYS clinical trials (4) will provide more reliable evidence on which to base government policies.
[1] https://www.tandfonline.com/doi/full/10.1080/0092623X.2022.2150346
[2] https://www.nytimes.com/2022/06/15/magazine/gender-therapy.html
[3] https://www.nytimes.com/2024/10/23/science/puberty-blockers-olson-kennedy.html
[4] https://www.kcl.ac.uk/research/pathways-trial
1) The limitations of de Vries’ study have been well accounted for and addressed by all who follow studies of gender dysphoria and transgender people. The Netherlands adopted WPATH standards and recommendations for care.
2) Ken Zucker is (or was) a non-affirming therapist who did not acknowledge gender dysphoria in his minor patients—this is conversion therapy and it is harmful. This might account for the “censorious demands” from actual transgender individuals and the parents of actual transgender children.
3) Olson-Kennedy did not release those results under the current political administration because puberty-blocking drugs by themselves do not treat the symptoms of depression, fear, anxiety, etc., that transgender youth and adults experience from living every day amongst transphobic and/or misinformed people in the general population.
4) There have already been notable issues with the “Pathways” study in the UK so don’t hold your breath, and, in the meantime, suicidal ideation, attempted suicide and actualized suicide has all risen in the UK because of refusing to provide gender-affirming medical care to those who benefit from it.
Find better sources.
1. Each side says that their viewpoint has been proven by studies. You mention The Netherlands but not the U.K.'s closing of the Tavistock clinic and its new PATHWAYS trials that are meant to be more scientifically rigorous. As I said, I commend Professor Vladeck for not taking a one-sided view on the science and policy questions. That kind of open-mindedness is rare these days.
2. Ken Zucker is one example. You seem sympathetic to his being censored because of his dissenting views. I find that approach very dangersous. In FIRE's (thefire.org) free speech survey on college campuses, LGBTQ students showed particularly high support for shouting down campus speakers or blocking others from attending campus speeches. (Support for free speech in general is unfortunately low among all students.)
3. The New York Times quoted Olson-Kennedy herself, as I indicated in my original comment. I know that people claim all sorts of other reasons for not releasing her study, but her own words are primary evidence.
4. Notable issues with the PATHWAYS study? There were notable issues with Annelou de Vries's research despite your claim that it was all on the up-and-up. The U.K. government seems to be (finally) trying to study the issue objectively and addressing comments on the proposed study (1).
You take an entirely one-sided view and provide no citations. I recognize the need to address the problems gender dysphoria causes, but I also recognize that there are legitimate questions about the scientific integrity of parts of the transgender rights movement. As for the movement's censoriousness, when I've expressed the opinions I expressed here, I have been called nasty names and told that my views should be censored -- right here in Professor Vladeck's Substack site. Both the "left" and "right" have become very censorious, and it's a real danger to our society.
[1] https://www.gov.uk/government/news/update-on-the-pathways-clinical-trial
O’Connor and Pittman are also responsible for the incredibly long sentences of the Texas 9, ICE protestors whose protest turned violent, most sentenced to 50-70 years in jail.
"Judge Kearney in the Eastern District of Pennsylvania quashed a demand for children’s medical and psychological records, finding the link between patient identities and any fraud theory “tenuous at best.” Judge Bissoon in the Western District of Pennsylvania granted a motion to quash in the UPMC matter, writing that the government’s demand carried “more than a whiff of ill intent."
This administration has demanded personal information on many of us. It has not, as far as we know, been successful in most cases. Cases. But I'm not exactly sure if we know yet what the extent of of their potential "ill intent" could be.
A lot of Americans may be conflicted about gender affirming care and young people. But they also might want to consider the ramifications of a government that asks for access to data on our most personal decisions. It would be naive to think that the demands end here.
The examples are not perfect analogies, but it strikes me that the kind of judge shopping and role of effectively single judge courts reported in this post are all indications of an alarming trend towards Tyranny not of the Majority or even the Minority, but Tyranny of the Extremists. If one Judge can effectively exercise power nationwide over individuals and institutions, then what is to stop the most extreme views on any issue from prevailing nationwide, whether it affects directly only a few or many of us? The party primary system in elections, which if I am correct is mentioned nowhere in the Constitution, already gives disproportionate political, and hence ultimately legislative influence, to the most extreme, dedicated supporters of a party. Will now the most ideologically or otherwise biased, even bigoted, human beings who become judges exercise a disproportionate influence on the evolution of the law? Open carry machine guns to day care facilities nationwide ? Doctors who lose their licenses by following best medical practices nationwide? Unrestrained freedom for oligarchs with no obligations? Elimination of civil service protections? Wars on again, off again depending on the time of day? The characterization of countries, groups and individuals oscillating between “good” and “scum” in successive posts on social media? Will the Supreme Court eventually have a say on this question, and what would its current Robertian version decide? Maybe the concerns I have are unthinkable, but there are many instances of what was once unthinkable, a few short years ago having now become the new daily norm.
Well said!
Unfortunately, common decency towards others went the way of Jerry Springer and media influences disguised as entertainment.
Thank you Glen. I am reminded by your comment of a quote by Edmund Burke, the 18th century Anglo-Irish politician and philosopher
"Manners are of more importance than laws. Upon them, in a great measure, the laws depend. The law touches us but here and there, and now and then. Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in."
Burke strongly supported the American colonies in the War of Independence, viewing their struggle as a justified defense of traditional English liberties against heavy-handed taxation and government overreach. And fiercely critiqued the French Revolution, arguing that radical political change based on abstract theories would inevitably lead to chaos, mob rule, and tyranny. How right he was in both cases in my opinion. Ironically given the ghastly humans who call themselves and are called conservatives in the US today, Burke is viewed as the father of modern conservatism - an advocate for tradition - who stressed that established institutions, religion, and historic values represent the accumulated wisdom of past generations.
Oh my goodness, a history lover. Tis' a subject I'd wished were mandatory for the full 4 years of High School. I honestly believe that the entire world would be a little bit better if that were the case. I thank you so very much for sharing this quote, as I've not read it before now.. Beautifully written.
I appreciate the careful legal analysis, but the basic thing that comes through is that the Trump Administration is putting forth a cruel anti-trans policy in a tyrannical way, and even the anti-trans Supreme Court has left open an avenue for the lower courts to deem it so.
Their ruling on trans ADULTS in the military is proof of their real agenda. Not counting the abortion ruling. The reshaping of the USA into a religious state is their goal. It's been spelled out for at least 2 decades now, more like 4 decades for some of us.
"I don’t imagine I’m going to persuade anyone about who’s right on the science, medicine, or policy here. Indeed, I’m not entirely sure myself."
I completely agree but I would be far more comfortable letting the medical community hash this our rather than the politicians (on either side of the aisle).
How 'bout the medical community AND INDIVIDUAL PATIENTS AND PARENTS?
Politics has pervaded so much of society in the U.S. that I no longer trust most institutions, including major medical associations, to be objective and impartial.
The U.K. seems to have come around to acknowledging the flaws in their previous approach, with plans for more rigorous studies on medical care for gender dysphoria (1). It's unfortunate that so many people with doubts about the orthodox "progressive" approach were ignored or denounced as bigots. That left us with the disaster of the Trump administration intellectually and morally bankrupt approach.
[1] https://www.kcl.ac.uk/research/pathways-trial
A fine argument for not trusting the courts!
I don't put much trust in the courts these days either. I'm particularly disturbed by the fact that the conservative Supreme Court Justices have so often shown political bias.
Politics is nothing more than a group of people coming together to make a decision. You and your family deciding what restaurant you are going to eat dinner at is politics. And, I'm sure in the majority of instances you guys do fine. Unfortunately, because of history we've made religion and government politics out of bounds for discussion for far too many years. I'm of the belief that if we could be a civil society both could be discussed with the same ease as steak or fish for dinner. The ugliness we're going through presently was given permission by the most powerful and wealthy man in the highest office in the land. If that isn't enough to wake up We Peasants, then I'm at a complete loss of anything constructive to add. ...Teach The Children Well....
The seriousness of your essay today, notwithstanding, I am struck today by the continuing frustration of solid logic and moral strength by the sheer ignorance and willful abuse of political power.
Since you brought up Texas, Steve, let me share the following regarding the intellectual and moral integrity of Republican Elected and Appointed Class members there:
Rumor has it that Texas Republicans will act to allow dead Republicans to continue to hold office. They believe that a dead Republican in office is better than the risk of a live Democrat. Further rumors suggest that the Texas Republicans will push the theory further for eventual testing in the U.S. Supreme Court, by appealing to Mitch McConnell family to bury him in Texas so they can run him for elected office. “We should not lose our best to death; especially in Texas (where silent Republican votes are considered assent and consent and are counted)” a spokesman was heard to say. South Carolina spokesperson was said to have been heard muttering “damn good idea.” [Parody is a terrible thing to waste when the world is such a target-rich environment]!
It seems to me that Donald J. Trump destroys any shred of credibility that the Unitary Executive Theory is sound Constitutional Reading, let alone, interpretation.
The Roberts’ Court has neutered Congress and has cast its lot with the Executive, and the Founding Parents cry “foul.”
The X family of companies have forum selection clauses in all their contracts that choose the state and federal courts in Tarrant County as venue for any dispute. It's not clear that the companies have a presence in Tarrant County other than the special relationship they enjoy with the legal community, and in my case against X Corp. and Musk (where the forum selection clause clearly did not apply) there was blatant racketeering throughout the proceedings. Attorneys for X Corp. did nothing but lie to the courts, and the courts did nothing but sign the orders given to them by X Corp. No comment from the Texas Supreme Court:
https://research.txcourts.gov/CourtRecordsSearch/ui/case/63b24732fdda4113aee110c00186f4b6
I sent courtesy copies of that petition through the Texas efile system to the ACLU, FIRE, EFF, etc, but have not heard from anyone. I did, however, get a letter from the Tarrant County Bar which I have not had a chance to respond to yet. Stay tuned.
Also, the SCOTUS is refusing to docket the petition that cites your paper with Carlos Vázquez, "State Law, the Westfall Act, and the Nature of the Bivens Question." U. Pa. L. Rev. 161 (2012):
https://drive.proton.me/urls/YZWFWYMQ2W#URpKUdsPiLn2
Freedom of speech, of thought, of belief, of conscience -- as long as you subscribe to right-wing prejudices.
Your link to the CASS study is wrong. I was able to find the study, but I think it would be good to fix the link.
As a scientist and former drug developer, I'll just point out that there's really no such thing as "settled medical science." Science is, by design, evolving based on data and is structured to be self-correcting - when new or contradictory data is developed, theories and medical recommendations change. They are never black-and-white, even if presented as such. (How many years did it take to discover that trans fats are actually worse than saturated fats?) There are also individual differences which is why clinicians are still taught to use their best clinical judgement based on the data and each patient.
The best place to make such difficult decisions is in the doctor's office with patients and parents and definitely not in a courtroom.
Your first paragraph makes an important point.
Regarding your last sentence, when a question of rights is in play and there's no societal consensus, what alternative is there besides court cases?
Regarding gender "transitioning", some say that not even the parents should have a say without the child's permission. Others say that for medical treatments, only the child, parents, and medical practitioners should decide. Still others say that a young child isn't mature enough to make such decisions or even to give informed consent. How can such a fraught issue be settled without court cases?
This is so infuriating. As someone who interacts with dozens of both the parents of LGBTQIA+ youth and trans and non-binary youth, themselves, I will try to do the right thing here and attempt to inform you, an apparent anti-trans troll, that children will tell you who they are. Are you willing to listen?
Very few kids who “consistently and persistently” identify as transgender change their minds. Those who do most often cite caving under pressure from family, peers and society.
There are many, many studies that point to gender-affirming care, which may or may not include puberty blockers or HRT, being hugely beneficial. If you can find all the sources you list above, you can find more recent studies, as well, yes? You can find the sources that reflect the actual opinions of transgender youth, yes?
Some kids will explore their gender identity, especially around adolescence. Some of them stay gender non-conforming, or come out with a particular sexual orientation.
A small percentage of these exploratory kids settle happily into accepting their assigned sex at birth as their gender. This is also fine. I can’t even qualify these kids as “detransitioning” - their gender (and/or sexual orientation) exploration is just a part of their growing up. It’s how that is received and handled that matters.
If you are an adult who refuses to give children any credit for knowing who they are; if you don’t believe children should have any modicum of respect, rights, or basic dignity; if you don’t believe that trans people have existed throughout our history; if you think these children should be denied the array of affirming care that makes them happy and keeps them healthy; well, then productive conversation with you is a waste of time.
And, Vladeck should stick with legal analysis. He comes pretty close to mimicking Alito and Kavanaugh who punish trans kids from the bench while claiming the “science is unsettled” and refuse to say that trans people deserve equal rights and protection under the law PERIOD. It shouldn’t matter where in the country a case is held; if judges somewhere think one class of people don’t deserve equal rights and protection under our Constitution because of who they innately are, that is a problem and it’s wrong.
Finally, because I’ve just had it after
this horrible year of demonizing CHILDREN and trans adults - I will repeat what members of the LGBTQIA+ community keep saying: Too many people and those in the media, including Vladeck, ignore or refuse to listen to or include — much less “center” — the voices of transgender youth and their parents in their articles, pieces, cases, trials (or lack thereof), etc.
Y’all should be ashamed of yourselves.
Not once in this piece does Vladeck ask a parent of a trans child how they feel about the Trump administration being so obsessed with harassing their medical providers, forcing their children to stop receiving specialized medical care, and going on an unprecedented rampage to access private medical records of minors.
Neither you nor Vladeck nor anyone commenting here who does not have a trans child, of any age; or a beloved trans family member or friend; or who is not a qualified and experienced, affirming medical provider of trans children, has a place on this podium. This infuriates me. You have no skin in the game? Go away.
Parents of these beloved children have had to see their kids be bullied, scorned, fetishized, questioned, threatened, read horrible things about them, hear politicians and others say horrible things about them, know that people are choosing to lie about them, lose their right to specialized medical care, and literally witness their kids being emotionally abused by politicians, judges, and people like you and JK Rowling who think they know what they are talking about.
Ultimately, the science is a side-show. That’s what you and Vladeck and others don’t understand. I don’t need science to tell me who my kids are, or whether I should love and accept them. Or get them the best available medical treatment that I can so that they can be as happy and healthy as possible. And that is what Christ-like looks like. Just in case you were going to raise religious objections next.
I'll read your full comment at a later time. I stopped when you called me "an apparent anti-trans troll" after saying that you would "try to do the right thing". The right thing is to not call other people names and to not make assumptions about their motivations.
I'm not anti-trans. I think that all people should be treated with respect as individuals. As far as I know, I've only met a few trans people in my life, but I treated them with the same respect that I try to treat everyone. I don't judge people by their sexual orientation.
I replied earlier about your calling me an "anti-trans troll", which presumes prejudice on my part and a deliberate intention by me to antagonize others, neither of which is true. You asked if I'm willing to listen. Yes, I'm always willing to listen, which is why I've now read the rest of your comment even though you insulted me.
Unfortunately, your comment reflects a dogmatic ideology that brooks no questions or dissent ("Go away"), chastises those who don't fully share your viewpoint (I'm an anti-trans troll; I should be ashamed of myself), and seeks to silence those who don't subscribe in full to your worldview (I don't have "a place on this podium"), all while accusing *me* of being antagonistic. If you want to have productive conversations, I suggest that you stop insulting others and telling them they have no right to express their opinions. That won't make the world a kinder and more tolerant place.
You wrote "I don’t need science to ... [get trans children] the best available medical treatment that I can ..." You seem to think that you know what's best even without scientific studies. It's clear to me that more reliable scientific studies are needed, for the reasons I originally stated. It's also clear that you see no room for doubt or no need for science, so further discussion of the quality of the scientific evidence is pointless. I'm willing to discuss other aspects of this issue, but expect that I'll continue to be insulted and lumped in with Trump. If you cannot avoid doing that, we should call it quits.
So you are not, in fact, a member of this community. Noted.
I hear your frustration. I'm a lawyer, a high school Con law teacher, and the father of a trans kid. It's really hard these days. And bad court decisions have made things worse. Courts seem to cherry-pick the "scientific evidence" that supports their view. And JK Rowling and the NYT have made things worse as well. Heavy sigh. Hang in there.
Are we going to have the courts decide on the best path for minors with a mental health issue, and the parents, and their chosen psychiatrist, as there is plenty of conflicting information on the correct treatment for this group as well. I'm not aware of a government federal law that states individuals must pass certain rules before they have children. In some states, that age can be as low as 15 years old and legally married. Yet we have various laws, via states for adopting children. Most, stating that they must be 21 and older. We allow 18 year old individuals to kill or be killed via the military. Yet they must "mature" for 3 more years before they can lawfully smoke a cigarette or drink a beer. What I'm trying to convey I suppose, perhaps our courts aren't always on the side of wisdom or common sense. Certainly our States can't seem to agree on many laws.
I think most people would agree, as I do, that our courts aren't always on the side of wisdom or common sense (to put it mildly), but as I said earlier, the unfortunate politicization of our institutions has left me distrusting most of them, including major medical associations.
What should we do if we can't trust any of our institutions? There's no good answer.
The more zealous transgender-rights activists resist even weighing the scientific evidence impartially, often denouncing anyone with sincere doubts about the strength of the evidence and calling for them to be silenced, as happened to me at least twice in this forum. That's not the way that people who truly value science behave, and it calls their definitive claims about evidence into doubt. The lack of an international consensus on the strength of the evidence supporting gender-affirming care is another relevant factor. Needless to say, the Trump administration can't be trusted at all, about anything, so I don't think the courts should be excluded from assessing the trustworthiness of the various arguments about gender-affirming care.
There are many issues that I have personal opinions about, but I try to at least consider opposing arguments. "Are twelve-year-old children mature enough to make informed decisions about gender-affirming care?" is one such question.
Are 15 year old children mature enough to decide to marry? In some states that is legal. Are 10 year old children mature enough to be told what to believe in, religiously? Are 17 year old children mature enough to decide that the military is the place for them? In all of these examples we've already, as a society, that decision rest on the parents and their children. I'm good friends with a 67 year old who is in the process of transitioning, and as I've known this individual and their family for ages I can speak from their views with confidence knowing how they feel about this issue. I'll add that society already allows a male and female to marry and produce children with a blood test as their only requirement for this. Should we not also have a say in their mental health capabilities for raising their children? I'm not a huge fan of this new era of the dictatorship of families and their decisions about their own personal business. Personally, I wouldn't allow parents to push a specific religion on their children, but understand that is a decision for the family to decide and not the courts. We must come to the knowledge that mental health is just as important as physical health is in our decision marking. If our current POTUS and many of his "helpers" isn't proof enough that our society lacks standing in what is "best" for the children then I'll politely now out.
Your questions are selective. Should parents be allowed to sacrifice their children to a pagan god? I'm sure the consensus on that one is "No!". This is of course an intentionally extreme example to show that there are limits; then we can discuss what those limits are.
When there's no social consensus on some issue, it's hard to know what to do. There will always be some who say "The government has no role on this issue whatsoever, end of story," but that maxim doesn't apply universally; if it did, we would have no laws at all. Lacking reasoned arguments, we're left with nothing but angry debates.
On mental illness, should the government be allowed to compel psychiatric treatment for people who are a danger to themselves or others? What should the threshold be? You'll get the entire spectrum of opinions on this question. How should it be resolved?
The main point of my earlier comments was that I believe the evidence for the U.S. approach to gender-affirming care is weak. In response, I was predictably told (though not by you) that I'm bigoted and that I should go away. That kind of response only reinforces my belief that the gender-affirming care movement is driven more by ideology than by scientific evidence.
Anyway, we know where we each stand, and I acknowledge that you are motivated by compassion. I am, too, despite what some other readers think.
Sadly,it wasn't so long ago that there were sacrifices in the name of their God du jour, in many countries. My questions are selective for the reason of showing how some of our laws are not only selective, but lack any common sense on what today's society, using science, considers a fully mature brain. Mid 20's is the best they've come up with and into our 30's for a stabilized brain. I may be misunderstanding your meaning of selective, but I think asking why society feels an 18 year old (17 W/parents permission) is mature enough to kill or be killed in the military, yet not responsible enough to smoke a cigarette or drink a beer.
I just think it is off putting that the loudest voices for wanting new regulations on these individuals are religious people. How can they use any science to point out their beliefs about trans needs when their beliefs in a God have never been proven by science? Seems a bit disingenuous to me. Personally, I'm against abortion, but will never vote against it. Women didn't have much of a voice in the Bible nor were their voices loud in our constitution. I think it's past due to give them a voice on their own body. Now we seem to have a government that is going to dictate the correct levels of testosterone men over 30 require for military service.
Anywho, great discussion, good points, and I wished society, as a whole, could have civil debates as well. I guess I should add to my wish for the 4 years of High School to contain history courses throughout, should also have debating classes mandatory. As we did during the 70's.
Peace go with you and yours.
Maybe this is the wrong place to do it, but if Slaughter stands for the proposition that the FTC is entirely under the Executive Branch, how can it exercise quasi-legislative features like proposing new regulations that impact private citizens or private conduct, such as between a hospital and patients? Did Roberts really say that Congress may delegate its authority but the President CANNOT?
I've wondered how they got away with that "quasi-legislative" and "quasi-judicial" language. I'm not a lawyer, but this use of "quasi" seems like Congress digging a secret tunnel to the Executive branch. I like the idea of independent agencies, but they don't seem compatible with our Constitution. Then again, I suppose a fourth branch comprising independent agencies would be just as corruptible as the others.
(Nothing I wrote is meant as a defense of the Trump administration, which I consider the worst in my lifetime by far.)