Should American states be allowed to ban puberty blockers for teenagers with gender dysphoria? That issue is currently being considered by the Supreme Court, which recently heard oral arguments about a Tennessee law restricting medical transition by minors. The Biden administration and the ACLU have sued to block the law. Before the justices, Solicitor General Elizabeth Prelogar and the ACLU lawyer Chase Strangio found themselves trying to navigate two different sets of questions. One was about discrimination; the other was about scientific evidence.
The case that Prelogar and Strangio wanted to make is that state bans on puberty blockers, cross-sex hormones, and surgery for minors with gender dysphoria should be subject to enhanced scrutiny because they violate the Constitution’s guarantee of equal protection. If girls can take blockers to postpone female puberty, why can’t dysphoric natal boys take the drugs to avoid male puberty? If teenage biological males can be prescribed the male hormone testosterone, then why not biological females? “What the birth males can do that birth females cannot do is receive medical treatment to live and identify as boys,” Strangio argued. “And what birth females can do that birth males can’t do is receive medical treatment to live and identify as girls.”
But the Court kept running into a more awkward question: Are medical treatments for minors with gender dysphoria even scientifically justified? In the late 1990s, doctors in the Netherlands touted a new treatment for teenagers with severe gender dysphoria who found puberty distressing: chemically blocking their sex hormones and then giving them the hormones of the opposite sex. Gender-dysphoric males got puberty blockers and then estrogen; females got blockers and then testosterone. Patients were also offered mastectomies, phalloplasties, or other surgeries. The initial Dutch study of 70 patients showed positive results, and the “Dutch protocol” was soon adopted by clinics around the world.
But from the start, questions arose around how quickly adolescents should be able to transition. Where was the line between preventing rash decisions and inflicting cruelty through unnecessary delays? Since then, the picture has been further complicated by research that undermines activists’ biggest claims for the protocol: that it can alleviate mental distress and prevent suicides, and that puberty blockers act as a neutral “pause button” for children to have “time to think.”
The American medical consensus—formed by the majority of the country’s professional medical associations—still supports puberty blockers and cross-sex hormones for adolescents who are unhappy with their birth sex. But unhelpfully for Prelogar and Strangio, the Supreme Court justices revealed themselves to be familiar with the very different situation in Europe, where medical authorities in France, Sweden, the United Kingdom, Norway, and Finland have all begun to sour on medical gender interventions for minors. Doubts have even reached the Netherlands, where the Dutch protocol was developed. Justice Brett Kavanaugh, a conservative, said that if “England’s pulling back and Sweden’s pulling back, it strikes me as a pretty heavy yellow light, if not red light.”
In the U.K., for example, the ruling Labour Party has just indefinitely extended the ban on prescribing blockers for gender dysphoria outside of clinical trials—a ban imposed earlier this year by the previous Conservative government. That followed the publication of the Cass Review, led by a senior pediatrician, which included systematic reviews of the available research that “demonstrated the poor quality of the published studies.” Treatments that had originally been authorized for a small and tightly defined group were later prescribed on a far broader scale, the review found, without any real controls.
British politicians on both the left and right now accept that the evidence for puberty blockers is weak, their potential side effects are worrisome, and withdrawal of these treatments does not lead to increased suicides. Continuing to prescribe blockers would therefore pose “an unacceptable safety risk for children and young people,” Labour’s health minister, Wes Streeting, declared last Wednesday.
In the United States, though, the situation is much more polarized. The reason that the Tennessee case has reached the Supreme Court is that red states have stepped into the void between public opinion on puberty blockers (cautious, to say the least) and the official position of most major U.S. medical associations (this is necessary health care). Since 2021, more than 20 red states have tried to ban or restrict blockers, while blue states continue to permit their use—and also gender-related surgeries on minors, which have never been allowed in Britain. The medical associations seem very happy to decry skeptics as extremist culture warriors but less keen to engage with the scientific discussion happening in Europe. Why? Insularity, perhaps, or political polarization—or, in some cases, reputational or even financial investment in the status quo.
I can’t help seeing this divide as a reflection of a deeper chasm in American politics. By and large, Democrats have higher institutional trust than Republicans, and are more ready to follow the lead of the American Medical Association or the World Professional Association for Transgender Health, the organization that sets the treatment guidelines for gender dysphoria. After attending the Supreme Court hearings, the New York Times columnist M. Gessen wrote that the red-state bans demonstrate how “defying medical consensus is becoming something of a national pastime.” But consensus is not the same as evidence. In this case, when liberals talk about “trusting the science,” what they actually mean is that they trust the American medical establishment. (Many individual doctors have expressed skepticism at the approach of their professional associations.)
The American left’s blanket defense of youth gender medicine has been boosted by the right’s wider disdain for gender nonconformity. In red states, puberty-blocker bans are often accompanied by unpleasant rhetoric and illiberal measures; as my colleague Adam Serwer has reported, in 2022 Texas Governor Greg Abbott ordered investigations into parents of children receiving gender-related care. You can believe, as I do, that the evidence supporting medical gender interventions for teens is weak, but also that many parents are making good-faith attempts to help their distressed children, in many cases backed by medical professionals whose judgment they should be able to trust. The Tennessee law now under scrutiny claims that “this state has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” In other circumstances, the right would argue that whether or not any of us “appreciate” our sex is none of the government’s business.
In blue states, however, free inquiry has been poisoned by the belief that any misgivings about this treatment—even those shared by reputable medical authorities in progressive European countries—must be driven by anti-trans sentiment. Although the medical associations make a big deal out of the need for proper diagnosis and “careful consideration by each patient and their family,” in practice some clinics operate on purely affirmative lines. Their doctors do not question adolescents’ gender identification or explore other potential causes for their distress; clinics have been known to prescribe blockers on a patient’s first visit. A recent lawsuit alleges that a prominent American gender-medicine specialist, Johanna Olson-Kennedy, referred one of her patients, Clementine Breen, for puberty blockers at age 12 without a psychological evaluation. Breen was then transferred to cross-sex hormones at 13 and had a double mastectomy at 14. (She has since detransitioned.) Olson-Kennedy has not yet responded to the suit, and her hospital told The Economist that it did not comment on pending legal cases.
Olson-Kennedy, who has served as an expert witness against many state bans on blockers, also recently revealed that she has delayed publication of the results of a federally funded study she led into their effectiveness. She said she feared that its findings would be “weaponized” by the right. When researchers who support gender medicine for teens are applying a political filter to their data, Supreme Court justices and average Americans alike might reasonably doubt whether they’re getting the whole story.
In oral arguments, Strangio quietly let go of another favored argument for the affirmative model. He was asked about the common activist claim that puberty blockers reduce suicides. Having covered this subject for a decade, I can’t overstate how influential this suggestion has been to the promotion of medical intervention for minors. For years, skeptics have been told by gender clinicians and groups such as the ACLU that affirmative care for minors is lifesaving. Concerns over the loss of future sexual function and other side effects recede if the alternative is death. In clinical settings, cautious parents have faced the emotional bludgeon of being asked: Would you rather have a dead son than a living daughter?
This was always a disturbing trope. Mental-health charities recommend against glorifying suicide, or suggesting that it sends a message to an uncaring world, because of the risk of contagion. But recent evidence suggests that the “lifesaving” rhetoric is also overblown or false. After the U.K. officially suspended the prescription of puberty blockers, opponents suggested that it meant the government was responsible for killing children. In response, Streeting sensibly commissioned an independent review into suicide rates among patients at the Tavistock, England’s only gender clinic for children, after that facility stopped prescribing puberty blockers. This found that “the data do not support the claim that there has been a large rise in suicide in young gender dysphoria patients at the Tavistock”—in fact, there was no increase at all—and also that “the way that this issue has been discussed on social media has been insensitive, distressing and dangerous, and goes against guidance on safe reporting of suicide.”
In front of the Supreme Court, Prelogar stated that denying an adolescent the ability to transition medically could “increase the risk of suicide.” But when Strangio was asked whether such statements were too dogmatic—given how disputed that claim was—he immediately backed down. “On page 195 of the Cass Report, it says: There is no evidence that gender-affirmative treatments reduce suicide,” Justice Alito observed. “What I think that is referring to is there is no evidence in some—in the studies that this treatment reduces completed suicide,” Strangio replied. “And the reason for that is completed suicide, thankfully and admittedly, is rare.” Instead, he said, some studies showed a reduction in suicidality—thoughts of suicide. That might be true, but it is not what activists have been arguing for the past decade. That an advocate as accomplished as Strangio had to make this climbdown in front of the Supreme Court is a serious reproach to the tactics of LGBTQ groups over this issue. All of us should want to build a society where children in undoubted distress get the support that they need, in whatever form that takes. If activists luridly claim that their opponents have “blood on their hands,” they should be able to back up that assertion.
The Supreme Court is not expected to return its ruling in the Tennessee case until late spring or early summer, and most observers do not expect the 6–3 conservative majority to strike down the Tennessee ban. The mere appearance of the case at the highest court in the U.S. has left activists worried; a defeat might open the door to wider bans on hormone treatment for adults, they believe, or lead to greater disregard among federal judges for further claims of unconstitutional discrimination. “In their apparent eagerness to uphold this Tennessee law, the Court’s Republican majority appears likely not just to strike a blow against trans rights,” Ian Millihiser wrote in Vox. “They also appear poised to do considerable damage to the legal standard governing sex discrimination generally.”
I’m sympathetic to that argument. Still, that danger wouldn’t exist had the American medical establishment been willing to engage with international research, and had it found a way to rein in the most extreme affirmative clinicians. None of the European countries I mentioned above have banned hormone therapies or surgeries for transgender adults, recognizing that the Dutch protocol is a unique treatment with distinctive ethical challenges.
I live in Britain. Having opposed the red-state bans on gender medicine for minors, I was surprised to find myself welcoming Streeting’s announcement of an indefinite pause. Then I realized the difference: Streeting is a democratically elected politician following the advice of an independent report, led by a senior pediatrician, backed by the gold standard of research. The new policy will be reviewed in three years and can be revised if new evidence emerges. Here in the U.K., each argument in this area can be about the narrow topic at hand, rather than being co-opted into a grander ideological battle. Here, you can support blocker bans but also hormone therapies for adults. You can support single-sex sports and prisons—as a limited carve-out from the broader acceptance of trans people’s sense of their own identities.
In the U.S., however, the “sides” are much more sharply drawn: Conservatives have pursued legislation on puberty blockers as part of a wider backlash against gender nonconformity—a view also evident in the insinuation that drag queens are ruining the military. Meanwhile, progressives refuse to cede any ground whatsoever, even on their most unpopular and poorly evidenced positions. Any concession is treated as merely a prelude to the wholesale triumph of their enemies.
The fact that the Tennessee case is being heard at all represents a profound political failure; even the conservative justices wondered aloud how well placed judges are to settle questions around evolving medical research. Kicking all difficult questions to the Supreme Court might be the American way—but it’s not the best one.
