Stop Legislating Against Transgender Children
Teuta Zeneli | June 2021
Texas Governor Greg Abbott speaking in February 2017. Abbott approved the state's Senate Bill 1646 earlier this year, requiring parental consent for children's gender-affirming care.
hether or not the state becomes involved in the health-related decisions of the individual is a subject of searing contention in this country. Largely due to the global pandemic and previous political derision directed at vaccinations, many politicians and constituents have taken issue with the idea of the government mandating vaccinations, with many saying that it should be a personal choice.
On the other hand, it seems that the antithesis of this debate lies in many states, including Texas and Arkansas, which have passed legislation prohibiting certain medical treatments.
A wave of conservative legislation has made waves in the media in the form of restrictions placed on transgender youths. Between debates of eligibility for youth sports and state recognition of preferred names and pronouns, recent legislative discussions have devolved into a salient quandary about transgender children’s access to gender-affirming care.
Gender-affirming care is defined as treatments relating to physical interventions and behavioral adaptations, done in order for an individual to assume traits in line with their gender identity. This could take many forms, such as surgeries or hormone treatment, or more behavioral adaptations like modifying speech patterns and binding breasts. These treatments have been associated with better mental health in transgender individuals after receiving said care and are considered by many to be medically necessary for the emotional and mental well-being of individuals in transition.
The Texas Legislature made headlines in recent months with the passing of Senate Bill 1646, which added on to existing legislation defining child abuse within the state of Texas. New provisions include parental consent of gender-affirming treatments for trans-identifying children, including hormonal as well as surgical care. These additions allow the Texan legislature to potentially punish parents for granting things like puberty blockers under the same criteria that child abuse is punished.
The onus is also on those “performing” a surgery or medical procedure with the intent of gender reconstructive effects. The potential for parents consenting to gender-affirming care as well as medical professionals that administer said care would potentially be implicated in punishment of child abuse. This bill would take effect in September of 2021, would not apply to those born intersex and would not be enacted retroactively.
In addition to this, HB1570, or the Save Adolescents From Experimentation Act (hereafter the SAFE Act), is a bill that passed through the Arkansas House with a margin of 70 to 22, which completely forbids any gender-affirming procedures or medication from being administered to transgender youths due to the possibility of detransitioning. The bill outlines various surgical interventions that are undergone in gender reassignment surgery and various puberty blockers and hormone supplements that are given to trans-identifying minors.
While others have previously stated that puberty blockers are reversible and safe, the bill argues otherwise, citing “the lack of any long-term longitudinal studies evaluating the 22 risks and benefits of using these drugs for the treatment of such distress or 23 gender transition.” This bill, like Senate Bill 1646 in Texas, also makes exceptions for intersex children.
Arkansas Governor Asa Hutchinson made headlines when he vetoed the bill after it flew through the state legislature. While acknowledging that he thought the bill was well-intentioned, he stated that it “would be and is a vast government overreach" and would create "new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people."
A Republican Stance?
While the language of both this act and SB1646 refer to the caprice of youth and the possibility of transitioning being a mistake, an approach that is exempt from explicit transphobic rhetoric or bias, it is undeniable that this type of legislation is becoming a part of the Republican Party’s platform. Around 100 bills have been introduced within 20 states this year, almost all red states or red-leaning swing states, which specifically target restricting actions or access of transgender teenagers and adults to gender-affirming care. Banning access to such care and recognition, especially for youths, therefore appears to be a priority in the conservative platform.
Hutchinson’s perspective deviates from this wave of anti-trans bills, however. His appeal appeared to be a call for traditional conservatism that the Republican Party champions—a call for small government, a plead to not include the state in personal medical choices. For Hutchinson, the concern is that a move so socially conservative would actually be more activist than conservative—that in an act to maintain conservative values, we are actually sacrificing the traditional Republican values of self-governance and small government.
Something curious about SB1646 of Texas is that, like HB1570, it grounds its authority in the idea that children are unable to decide whether or not they are really trans, or that they are merely mentally confused or disturbed. The argument behind restricting children’s access to gender-affirming care might be that, because children cannot themselves consent to legal or elective procedures, their parents might be less likely to consent to have these procedures done.
Yet the biggest argument against gender affirming care for trans youths is rooted in the assertion that these children don’t know what they want—and maybe some of them don’t. Keira Bell in the UK, for instance, is taking legal action against the National Health Service for allowing her to begin her transition to male when she was a teenager, saying that she now regrets the decision and no longer identifies as trans.
It is possible that, like many perceptions in life, our perception of our own gender and gender identity might change with the development of our brains and bodies, and it is probable that some people are going to detransition after receiving gender-affirming care. Sometimes, the choice to transition might be a mistake for those individuals.
But should that mean that such care shouldn’t be available? Should we not be allowed to make that mistake for ourselves? How can we prove or quantify whether or not we are “trans enough” to receive care?
To many, access to gender-affirming care is a life or death situation. In a 2019 survey of 27,715 transgender respondents, the Williams Institute of UCLA found that 9% of transgender individuals that wanted gender-affirming care but were not able to access it attempted suicide in the past year. Additionally, the study found that access to gender-affirming care decreased suicidality by 4%. The argument has certainly been made that depriving youths of the ability to transition could result in more suicide attempts. Do the benefits of guarding confused cisgender children outweigh the risk of depreciating the mental health of others?
At this point, we have reached a philosophical and ethical dilemma. We must reconcile a debate on what the state can and should allow children to do regarding their bodies, and when the state should dictate what parents can or cannot decide for their children regarding healthcare decisions. The argument citing the caprice of youth or that children cannot give informed consent to medical treatment is understandable if children weren’t treated as adults in other cases. For example, in many states children can get married with the consent of a parent—Texas being one of them, with the minimum age being 14.
A child is able to give informed consent, with the permission of a parent, in the state of Texas to enter a legally binding marriage in the eight grade but apparently cannot understand what their gender identity is and access gender-affirming care for it. In Texas, at 14 a child can be tried as an adult for a first-degree felony, but they can’t take puberty blockers. This begs the question: why are kids adults sometimes and not others?
A salient argument is that once a transition has progressed past a certain point, like getting breast tissue removed for top surgery or a vaginoplasty for bottom surgery, it is difficult to renege on that decision. One can get divorced after being a child bride, but it would be more difficult to undo a breast tissue removal. To that point, however, a counterargument is that hormone blockers which simply pause puberty are deemed reversible (though long-term effects on brain and psychiatric development are not yet known), and at the very least could assuage quelling gender dysphoria in teens while not being an irreversible commitment.
A Question of Agency
Regardless of this, why shouldn’t children be able to make that decision? Why shouldn’t we have the freedom to make that mistake, if it is a mistake? Transferring the onus of transition regret from the individual to the state when treatment could prevent suicide is inherently a paternalistic act of governance that generalizes a complex issue into a single sweeping ban. The idea that what a child can or cannot do should be determined by the government and not by their own families, is overreaching and infringing upon our most basic levels of agency.
Moreover, how can we quantify who is “adult” enough to be treated as one? If a child can be tried as an adult for a felonious crime before they can even drive, then the measure with which we decide what an adult is or when a child is able to make an “adult” decision that affects the rest of their life is arbitrary. To that point, it is worth criticizing the government’s paternalistic overreach into the lives of minors who identify as trans, along with the platform that is sweeping the nation seeking to derail any ability to seek treatment.
Though a knee-jerk response to any issue involving minors making life-changing choices for themselves is to restrict such choices to parents or guardians, we might do well to ask ourselves about how significantly this government infringement contradicts our values of autonomy and individual agency. The emergence of a paternalistic state dictating the medical treatments one can seek is the last thing we want in a democracy such as ours.