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    Ann Rostow: Trans Care in the Crosshairs

    By Ann Rostow–

    Trans Care in the Crosshairs

    I should, by rights, begin this column with a discussion of the Colorado website designer who was just given the High Court’s thumbs up to discriminate against gay couples in violation of the state’s civil rights law. We’ll get to it, I promise. But first comes news of an equally disturbing opinion, and one that has not gotten the same media coverage as the first; namely, the ruling by the U.S. Court of Appeals for the Sixth Circuit that temporarily restored Tennessee’s ban on health care services for transgender minors, allowing the law to go into effect as scheduled July 1. 

    This is the first time that a court has permitted one of these trans-youth health bans to take effect during a legal challenge, and while the court has promised to rule quickly on the status of an injunction that could put the law on hold once again, it seems likely that the 2–1 majority will agree with itself over the next eight weeks or so as it deliberates further. That will put the Sixth Circuit at odds with the Eighth Circuit, which ruled in favor of blocking Arkansas’s anti-trans health law while a challenge was underway. Last month in that case, Judge James Moody became the first federal judge to rule on the merits of a health ban, striking the Hog State’s prohibition as unconstitutional in an 80-page opinion.

    Except for Judge Moody’s recent decision, the various other rulings throughout the country involved motions to put a hold on these laws pending litigation. But because a court must first find that the plaintiff is likely to succeed on the merits of the case before such an injunction is allowed, these decisions are significant. In the Sixth Circuit opinion, the majority decided gender identity discrimination does not require any heightened scrutiny from a court, in part, because the discrimination applies equally to both genders. Further, the majority characterized trans health care as some kind of avant-garde medical treatment. Other courts, by contrast, understand that gender identity bias is always a form of sex discrimination and that most trans health procedures are well established.

    Note as well that the U.S. Court of Appeals for the Fourth Circuit is considering the same issue en banc, which means that the full ten or twelve judges on the court will deliberate on the two combined cases under review. And various other appellate courts will be taking a stand as well. Don’t ask me to track down all this litigation, please. Let’s just say that, thanks to the Sixth Circuit, we are headed for the kind of split in the appellate bench that requires the Supreme Court to take action. At this rate, we will have a trans health care case on the docket in this coming session.

    Nuance Eludes Us

    And here’s the tough part of the transgender youth health issue. Answer the following: What exactly are the repercussions of puberty blockers? Do doctors agree? Are they safe? Who should decide when to authorize their use and under what circumstances? How do we tell the difference between a struggling trans kid and a cis kid who thinks it’s fun to fool around with gender? Should a child ever have non-reversible surgery before the age of 18? When should hormone treatment start? What are the long-term effects of starting hormones and then stopping? And, of course, what is the impact on a transgender child of going through puberty in the wrong gender? 

    I could go on. Why do medical experts in Europe disagree with the consensus in the United States? Do they? How do we know which researchers and which reports to trust? To what extent has politics influenced the scientific debate? As a non-scientific reporter, I have no way to assess the “medical experts” on either side. 

    Finally, what if “we,” the politically correct GLBT community, are wrong about some aspect of transitioning youth? Why can’t we leave some of the answers to these questions to be determined on a case-by-case basis? Much of our political agenda does indeed lend itself to clarity. Equality is equality, not some second-rate compromise. But transgender kids are out there on the playground with tons of cisgender kids who look and sound just like them. Does 8-year-old Susie want to be a boy? There are a thousand reasons why she might, and most of them do not involve being transgender that affects less than one percent of us. Take Susie to the wrong gender therapist and instead of a “wait and see” approach that allows the child to experiment, you might end up with a prescription for puberty blockers just based on a consult.

    Is that true? Does that really happen? Like most of this stuff, I don’t know! I do know that if Susie has been wanting to be male for some time, if she prefers a boy’s name and boy’s clothes, if she’s had a therapist you trust for over a year, if you as a parent feels this is right, that goes a long way towards making a good decision. That’s why blanket bans on transgender youth health care are so dangerous. But there are other dangers as well, and groupthink might be one of the most insidious. 

    Free Lorie

    On Friday, June 30, the High Court ruled 6–3 that Lorie Smith, the Colorado website designer, does not have to accept gay wedding couples who might want her services; this despite the Ski State’s ban on GLBT discrimination in public accommodation. The decision was based ostensibly on Smith’s right to free speech, making the assumption that these wedding websites are examples of Smith’s creative expression. 

    In an annoying and irrelevant side issue, Smith and others have at times claimed erroneously that two men wanted her to set up a website for their wedding, which is not true. But her case did not rely on this misinformation, and, in fact, she has never created any wedding websites for anyone, insisting on a ruling before starting this aspect of her business. Nonetheless, the press has been inundated with stories implying that the entire case was based on a falsehood and that the ruling should be suspended. Perhaps, unfortunately, that’s not a thing.

    One of my most admired and thoughtful conservative legal friends, an ally in most of our communal goals, is on the “free speech” side of this case, and indeed, we all agree that free speech is a vital American constitutional right. But if Smith’s websites are expressive speech, then so are the floral arrangements at the reception, and so is the cake, and certainly so is the videography, and the decor. If Smith’s Christianity is not the issue here, and technically it’s not, then she should also be allowed to bar the door to mixed race couples if she so chooses, or interfaith marriages. 

    According to the stipulated facts of the case, viewers of Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.” This suggests there’s a note on the site to this effect, much as “flowers by Ann” is probably posted somewhere in the reception hall, along with information on other wedding vendors. So why can’t they also say no to certain clients based on their expressive speech?

    The obvious point is there seems to be no limiting principle, and even if a handsome conservative law professor can find one, it’s not one that a future conservative court will likely consider binding precedent. Lorie Smith also claims that she has nothing against gay or lesbian clientele, and will happily do business with them, much as the antigay baker of yore said he’d sell us cookies but not a wedding cake. But if Smith’s designs are so expressive, then what of an anniversary party site? A family website for an unmarried lesbian couple and their kids? A professional site for a civil rights attorney who specializes in GLBT cases? Or even a personal website for an openly gay man? Would she really take on these projects? Why? Why not exercise her “free speech” on them as well? 

    We will soon see the impact of this opinion. We theoretically “won” the Masterpiece Cakeshop case, because although the baker won on a technicality, Justice Kennedy ruled that businesses may not ignore GLBT public accommodation laws. But that aspect of the opinion has often been simply ignored or twisted against us. Imagine what courts will do with this decision, a green light to sidestep civil rights ordinances that we have struggled for years to enact and enforce. Already we are seeing public opinion shift against gay rights over the last five years or so. The majority of Americans currently think businesses should be required to serve GLBT clients, regardless of the business owner’s faith or opinion. How long do you think that majority will last?

    The Kids Are Okay

    Everyone is blown away by a survey out of Brown University, where 38 percent of students now say they are not straight, up from 14 percent in 2010. A close look at the numbers indicates that the increase doesn’t represent that many more gays and lesbians, but rather reflects bisexuals, along with a host of other categories. Now you can choose pansexual, asexual, queer or questioning. No wonder more people have joined our expanding “community!” How many boxes will students be able to check in 2032? 

    Given the progress and visibility of the last 13 years, it’s not surprising that kids would rather be in a fun-sounding identity group if given the choice. It’s like asking them to define themselves as “boring” or “not boring.” I read elsewhere that college students have less sex than they used to, so it’s all kind of hypothetical.

    According to Gallup polling, nearly 20 percent of Gen Z adults say they’re LGBTQ, mostly on the bisexual side. Nationally, the figure is about 7.2 percent. This trend, however, is feeding the antigay and anti-trans movement that has taken firm hold on the country in recent years. I just watched an ad from Casey DeSantis that focuses on “standing up for kids,” and includes a scene from a Pride parade where everyone’s chanting “we’re coming for your children,” long a satiric gay meme that is now being portrayed as an actual threat. 

    The ad, promoting “Mamas for DeSantis,” also includes shots of transgender women athletes, babies shrieking while being forced into Covid masks, and a small child facing a leather man wearing a horse head. “When you come after our kids,” Casey promises, “we fight back!” The ad is well-executed and effective in contrast to her husband’s bizarre antigay ad that placed DeSantis’ most draconian attacks in an unflattering spotlight. It makes you wonder who authorized the nasty attack ad versus who created the “Mamas for DeSantis” kids’ champion ad. It feels as if these commercials were generated by two completely separate campaigns. Or perhaps Casey DeSantis stepped in to mitigate the backlash caused by the original spot. 

    One thing is clear. Our adversaries are using children as the vehicle to attack every aspect of GLBT rights based on fear. Fear that kids will be turned gay through books at school, through celebrations of Pride, through rainbow toys, or gay movie characters. Fear that boys will want to be girls and vice versa and society will allow them to change genders at will, maybe with medical help. Fear that drag shows and parades sexualize children. 

    And news reports that suggest the rising generation is twice as gay as they were a few years ago feeds right into these fears, does it not? 

    Our fight for marriage equality was all about adults, and we were the victims of unfair rules and regulations that demonized committed couples. The image of an elderly widow assessed $300,000 and change for taxes on her own property brought down the Defense of Marriage Act. It was no accident that the plaintiffs in our marriage cases around the country were fine citizens with longstanding relationships. And despite media reports to the contrary, it wasn’t an overnight victory, but a decades-long battle for marriage rights.

    But this fight, our continuing fight, is for a place in society and for true equality, not as victims of never-ending discrimination, but as fellow Americans. It’s a more complicated debate, and it’s not one we will win using an old approach of “us vs. them” unless the “us” includes, not just our community, but a solid majority of our country.

    GLBT Fortnight in Review
    Published on July 14, 2023