Health Care for Transgender Youth Goes to the Supreme Court

Note: This transcript has been created with a combination of machine ears and human eyes. There may be small differences between this document and the audio version, which is one of many reasons we encourage you to listen to the episode above!

Dan Gorenstein (DG): Next month, the Supreme Court will take up one of the most contentious health policy issues of the day: medical care for transgender kids.

News clip: The Nebraska Supreme Court upheld a law restricting medical care for transgender youth.
News clip: With trans people in WV and NC suing to secure insurance coverage for gender affirming care.
News clip: Today, the Georgia House of Representatives approved a bill to prohibit doctors from performing hormone therapy or sex reassignment surgery on anyone under 18. 

DG: Twenty-six states have passed laws banning trans kids from taking certain medications or having surgery, what’s known as “gender-affirming care.” Judges have struck down some of those laws. Others have signed off on them. Now, the Supreme Court is set to weigh in on a case that could have far reaching implications for the rights of transgender Americans young and old.

Katie Eyer: A lot of what is at stake is will the court require the state to really prove its assertions about the harms and benefits of this care?

DG: Today, we take a closer look at gender-affirming care and the legal arguments that will decide how accessible that care will be. From the studio at the Leonard Davis Institute at the University of Pennsylvania, I’m Dan Gorenstein, this is Tradeoffs.

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Meredithe McNamara (MM): My name is Meredithe McNamara. I’m an adolescent medicine physician at the Yale School of Medicine.

DG: Meredithe says in her 11 years as a doctor, specifically a pediatrician who takes care of teenagers, she’s always had a small portion of her patients who are transgender or “gender diverse” — kids who don’t identify with the sex they were assigned at birth.

I feel like gender-affirming care, Meredithe, is one of these phrases that is tossed around a lot. It’s obviously at the center of this upcoming Supreme Court case. But, first, let’s make sure people have a clear sense of what gender-affirming care actually is. Can you define it, please?

MM: So I get asked this question in health settings, you know, by nurses and medical assistants. We’re like, hey, you know, can you please explain this to me? And what I would just say is that it is highly individualized, and it is about helping somebody’s physical appearance and the way they present themselves in life line up with their gender identity. 

DG: OK, so gender-affirming care could be counseling. It could be taking medication to pause puberty, hormones to help a person’s body match their gender identity. It also, of course, could mean surgery. And overall at a high level nationally, do we have a sense of how many kids are receiving gender affirming care?

MM: So in 2021, there were about 40,000 diagnoses of gender dysphoria in minors. Gender dysphoria is a condition where there is distress that arises between one’s physical appearance and one’s gender identity. For those 40,000 minors, there were about 1,400 prescriptions of puberty blocking medications and about 4,000 for gender affirming hormones like testosterone or estrogen. That discrepancy reflects a lack of adequate services, escalating bans on care. But it also reflects the fact that physicians are not carelessly or routinely offering it. The vast majority of my minor patients with gender dysphoria just want conversations. They want a supportive connection to a clinician. They want somebody that they can come talk to, and their parents want that too.

DG: So I know, Meredithe, you just said this care looks different for every patient. But to give us a clearer sense of what we’re talking about, can you tell us an example of one patient you’ve treated that captures the typical experience?

MM: So about a year ago, I met a young person who was assigned male sex at birth, was brought in by their parent because this young person was not eating anymore. So after a few minutes of chatting with this young person alone, she told me that she has felt like a girl her entire life and that she doesn’t know how to tell her mom. The development of an eating disorder is very common in trans youth with really severe dysphoria because restricting caloric intake or even overeating can be body affirming in a way. So this young person had really kind of like just put a pause on puberty by not eating. So we had to talk to this young person’s mom. And with a referral to a gender clinic and with eating disorder care with me, we were able to, over the course of about a year or so, get this person’s weight restored and then start medical aspects of gender-affirming care.

DG: So let’s talk about the evidence, Meredithe. I know that supporters and opponents of gender affirming care use evidence to justify their positions. The American Medical Association, the American Psychiatric Association and the American Academy of Pediatrics, among others, all support this care, and it’s been the standard of practice for at least 15 years. At the same time, there are studies cited by England, other European countries, states here that there are fewer benefits, if not harms. Before we get into that, though, Meredithe, can you just walk us through the evidence on gender affirming care for young people? What do we know?

MM: Well, we know a lot and we know more with each passing month. So just within the past week or so, one of the largest, longest studies on satisfaction and regret with gender affirming care came out. And the overwhelming majority of patients reported extremely high satisfaction rates with puberty blocking medications and gender affirming hormones, and their families did too.

DG: So young patients and their families have high satisfaction with puberty blockers and hormone therapy. What evidence do we have on the physical and psychological impacts of those treatments?

MM: We call puberty blocking medications kind of the way to buy time. When somebody is receiving a puberty blocking medication, they’re not going to build bone. They’re not going to develop body hair and all of that sort of stuff. We do know that when the medication stops, those changes catch up really quickly. It’s not really until somebody receives hormones that lead to the development of physical characteristics that align with their gender identity, that we see reductions in suicidality, improvements in depression and anxiety. When people feel like they’re in the body that they belong in, they should be in, their mental health improves.

DG: And to go back to talk about the patient you described a few minutes ago, that’s what you saw with that kid. Like when that kid was able to get the gender affirming care that she was seeking, she got healthy.

MM: Yeah. She’s doing so well right now. She’s in college. She’s studying political science. She writes for the newspaper. And she has plans for the future, like she has a 10-year plan. The young people I meet with gender dysphoria who are not receiving any support, they don’t have that 10-year plan.

DG: Is there any research on what happens if someone doesn’t get gender-affirming care?

MM: There was just a large study that came out in Nature that showed that suicide attempts have gone up dramatically since bans on this care have come about. In some regions of the country, suicide attempts have gone up by as much as 70% among LGBTQ youth. And adults who have been studied, who are trans, who did not receive gender affirming care in adolescence report that they overwhelmingly wished that they had been offered it, and they have poorer mental health outcomes.

DG: Meredithe, as we’ve already said you’ve got policymakers in the UK, Europe and in many states here who are making the case to ban gender-affirming care for young people because of the research. A prime example of this is the so-called Cass Report, this big review that came out earlier this year, and that found that the research is of “poor quality” and that the evidence on puberty blockers and hormone therapy remains “unclear.” How should people square the findings in this report and what you’re saying about the evidence?

MM: What I would say to that is there is no study that recommends a ban on care. And politicians that cite studies to justify bans are pinning language on them that you just can’t find in there. Even the Cass review doesn’t recommend a ban on care. You know, I just hate to see all these leaps taken from the text that’s on the page by people who are not trained to make medical decisions for other people’s children.

DG: Is there any downside? Is there any risk based on evidence, any harms that can be done by opening this door, offering gender affirming care to a kid?

MM: You know, the hard thing is that society remains incredibly hostile and unfriendly towards trans people. So it’s just really hard to be trans. High rates of violent victimization, job loss, housing discrimination. That’s a tough life for some people. So we do see that regret can be tied to the social implications of living as openly trans.

DG: You work in Connecticut where this care is allowed, but I know that you have friends and colleagues working in states with bans. Can you share just one story that you’ve heard about the impact the bans have had on the clinicians and on the kids that they’ve cared for?

MM: So I had a friend call me a couple of weeks ago. She’s been taking care of a trans boy for about two years now. She practices in a state with a ban and that requires patients who are getting gender affirming care to wean off of it. My friend was so fed up with herself because there is no guideline or study that tells you how to stop medication in somebody who really wants it and is really benefiting from it. We talk about experimentation. That’s experimentation. It’s not the care that’s being banned. It’s the care that happens when the care is banned.

DG: Did your friend share with you what her patient is saying?

MM: Her patient isn’t saying much anymore. They used to have long conversations where this young person would talk about their physical health, their life. But now this kid just isn’t showing up for appointments anymore. They don’t feel like there’s any point in going anymore. Because the person that was helping them is now the person who has to hurt them.

DG: Based on my conversations with you Meredithe and our other reporting, it feels like the debate over gender-affirming care for young people comes down to the disagreement over how to protect kids: Do you best protect them by giving them, their families and trained clinicians room and space to explore gender dysphoria and other options of medications? Or do you protect them by taking those options off the table until they’re adults? To answer that question, everyone turns to the medical evidence, as you know. And the evidence in this case, like in many cases, is imperfect. People can and do come to different conclusions. Some of those conclusions are certainly driven by ideology, by people who don’t like the idea of transgender kids.

You have spent the last several years of your life making the case to parents, to policymakers and now to the Supreme Court that the evidence, imperfect though it is, supports making this care available. Why?

MM: Everyone is different, and everybody deserves the freedom to realize their full individuality. And we don’t systematically take that away from anybody, no matter how old they are or what they look like, nearly as easily as we do here. My patients are all different. There’s no way that the same medical decision could work for them all, but that’s what the state’s trying to do. 

DG: Meredith, thanks so much for taking the time to talk to us on Tradeoffs.

MM: Thank you. Thank you very much.

DG: When we come back,we dig into the Supreme Court case that could determine the fate of gender-affirming care for thousands of young people.

MIDROLL

DG: Welcome back.

On December 4, the Supreme Court will take up the case U.S. v. Skrmetti. The federal government is suing Tennessee over its ban on gender affirming care for minors. This case could have very real implications for the health of the estimated 300,000 transgender adolescents in the U.S. So we talked with two legal experts to walk us through the legal arguments, potential outcomes and the impacts of this case.

Katie Eyer (KE): My name is Katie Eyer. I’m a professor of law at Rutgers Law School, where I teach and write on LGBTQ rights, disability rights, and generally anti-discrimination principles under the Constitution.

Jim Blumstein (JB): My name is Jim Blumstein. I hold the title of University Distinguished Professor of Constitutional Law and Health Policy Law at Vanderbilt University.

DG: Jim submitted what is called a “friend of the court” brief on this case. Katie has signed onto one as well, each explaining in detail how they think the Court should rule. As you soon will hear, they disagree. But they do agree on the fundamental question that is up for debate.

KE: So the main question is whether this law treats kids differently based on their sex and/or that they’re transgender. For the most part, the law assumes states know what they’re doing. But under the Constitution, if a state wants to pass a law that treats people differently based on their sex or that targets a particular vulnerable group, the state is going to need to prove they have a good reason for doing so. 

DG: In other words, to decide whether Tennessee can ban gender-affirming care, the Court must decide if this ban counts as sex discrimination. If it is sex discrimination, there will be a higher bar for Tennessee to justify this law. Katie says based on her analysis, this is discrimination.

KE: It is perfectly acceptable for people assigned male at birth in Tennessee to receive testosterone for any reason. There’s absolutely nothing in the law that would prohibit that. But if a person assigned female at birth were to walk into a doctor’s office and ask for testosterone, they could not receive it.

DG: So you are saying that a cisgender boy can walk in and get testosterone and a transgender boy can’t. 

KE: Yeah. There really is no way for a doctor to decide who is going to get access to care without looking at the sex of the patient before them. So that’s really just straightforward differential treatment of people for the same treatments based on what sex they are.

DG: Jim and the state of Tennessee see it differently. Jim says there’s no sex discrimination here. Instead, he sees Tennessee’s law as an example of something states do all the time: regulate what kids are allowed to do.

JB: there are certain things kids can’t do. They can’t vote. They can’t drive a car and can’t get married. Parents cannot say to a child, you don’t have to go to school. You do have to go to school, and the government can make you go to school. 

DG: Jim also pushes back on the argument that the law forces doctors to look to a patient’s sex to decide if they can get this care. Remember Katie’s example: The cisgender boy could get testosterone, and a trans boy would be denied? Jim says Tennessee is less interested in a person’s sex and more concerned with how to treat gender dysphoria.

JB: For me, the way to think about this is the government targeting a particular type of illness or diagnosis. And with respect to the treatment of dysphoria, both genders are treated the same. 

DG: In other words, the law prevents any kid regardless of sex from getting testosterone as a treatment for gender dysphoria. Deciding how certain medications can be used, Jim says, is another thing states do.

JB: There’s no constitutional right to any particular medical treatment. You can get a medicine to anesthetize you if you’re going to have a surgery or something like that, but you might not be able to get that medicine for a different purpose, like for getting high or something of that type. And so these kinds of distinctions exist and they relate to the diagnosis, not to the sex.

DG: Katie doesn’t buy it. She thinks the state is hiding behind age and medical care as a cover for ideological objections.

KE: Tennessee, for these very same types of procedures, is not concerned about all kids. So a cisgender girl can go get breast enhancement surgery before she turns 18 in Tennessee. Tennessee is not worried about the health effects or the possibility of regret. And yet, just for this small, vulnerable minority, they don’t want to allow them to access care that is important to their health care. So I would say that the state isn’t really concerned about risks for minors. And we can see that if we look around at who is not covered by this law.

DG: Jim counters that the medical uncertainty around gender-affirming care gives states the right to restrict how doctors can treat gender dysphoria.

There are three high-level ways the Court could rule, each with their own set of implications. First, the Court could agree with Tennessee — say that this is just about the state regulating what kids can do and how to treat gender dysphoria. 

KE: The most obvious implication would be that Tennessee’s ban on gender affirming care would stand, as would the other bans across the country.

DG: Katie says it also might provide a legal boost to states that ban trans people from using bathrooms or playing on sports teams that align with their gender identity. Some legal scholars also worry a ruling for Tennessee could threaten federal anti-discrimination protections for transgender patients and open the door for states to restrict gender-affirming care for adults, a move Florida and Missouri have already attempted.

Jim says that while a Tennessee win would certainly be a political loss for transgender rights, he thinks the legal consequences are more narrow.

JB: The state’s interest, as I conceive it, is to protect minors. It’s a totally different thing if the state would purport to block gender-affirming care for adults. I think that would be a very different issue.

DG: The second possible outcome is a win for the federal government. The Court could determine these laws discriminate based on sex, and Tennessee doesn’t have a good enough reason to do that. Katie and Jim agree that would likely spell the end of these blanket gender-affirming care bans eventually in all 26 states.

JB: If the Supreme Court strikes down the Tennessee law, then that’s a national rule. It depends on how the Supreme Court does it and what it says, but the rationale and the ruling would be precedent for the entire nation.

KE: It would be very significant, not just symbolically, but practically speaking, for how all of these other laws that are targeting the transgender community would also be assessed.

DG: Finally, the Court could take more of a middle of the road approach. The justices could agree with the federal government that Tennessee’s law does discriminate based on sex or transgender status. But then send the case back down to a lower court to decide if Tennessee can prove why the state should still be able to ban this care.

Katie says while this would leave the law in place for now, it would dramatically increase the likelihood that these bans are eventually struck down.

KE: Tennessee’s ban is far from alone. Roughly half the states have these and many of them have been challenged. And every single case where the state has been required to put on real evidence and actually prove their arguments, they’ve failed to do so. And to be clear, this includes, as in this very case, judges who were appointed by former President Trump. These are not all wild eyed liberals. But when you get down to the facts and evidence, states simply haven’t been able to substantiate the arguments that they’re making in court.

DG: The presidential election adds a new wrinkle to the possible outcome. The incoming Trump administration could reverse the federal government’s position, potentially opening the door for the justices to dismiss the case.

Assuming they do deliver a ruling, many analysts predict the Court’s conservative majority will uphold the law. That’s what Jim thinks will happen. Katie says she hopes they’ll opt for the middle of the road approach.

Whatever the Court decides, hundreds of thousands of transgender young people will be watching — their access to this care, care that can save someone’s life, hanging in the balance.

I’m Dan Gorenstein, this is Tradeoffs.