Yesterday, Federal District Court Judge Robert L. Hinkle declared that three children can take puberty blockers, even though Florida’s new state laws prohibit it. He suggested the law is likely unconstitutional.
But that wasn’t the only reason he sided with the plaintiffs. In his ruling, Hinkle stated that “Gender identity is real.”
“With extraordinarily rare exceptions not at issue here, every person is born with external sex characteristics, male or female, and chromosomes that match. As the person goes through life, the person also has a gender identity—a deeply felt internal sense of being male or female. For more than 99% of people, the external sex characteristics and chromosomes—the determinants of what this order calls the person’s natal sex—match the person’s gender identity,” he wrote. “For less than 1%, the natal sex and gender identity are opposites: a natal male’s gender identity is female, or vice versa.”
I once interviewed a very knowledgable and experienced clinician who said told me that gender identity was a term that made sense for young children who believed that they were in the wrong category—children who hadn’t developed a sense of sex constancy yet, and could only navigate the categories via stereotypes, which they didn’t fit. I think that some adults do very much have the sense that they should be, or desperately want to be, or are, the other sex. But most adult trans people I know well—and many of those I’ve interviewed as part of my Heterodox Trans People series—do not have a gender identity, or believe in the theory of it. I don’t believe that I have one—though, since it’s a completely subjective and indefinable experience, I suppose there’s no way to know.
Some of these adult trans people in my life believe they have a mental disorder, and that “gender identity disorder”—as it was called before being replaced with “gender dysphoria”—is not a stigmatizing term, but an apt description. For them, transition was in fact the best treatment. Others—naturally feminine males and masculine females—came to understand that they had internalized so much homophobia, they saw no room for themselves in their sex category. They couldn’t accept themselves as men and women, in part perhaps because others couldn’t, either. Others still are autogynephiles, who have an intense desire to have a “female” body or cross-dress; for some of them, transition works, too. But that doesn’t mean they have a “gender identity.” Rather, they have a sexual proclivity, or an orientation, that transcends traditional boundaries of gender: which some might call a fetish. Though “fetish” merely means an attraction to body parts or objects other than sexual organs (hence, “foot fetish), and does not mean “bad,” most people interpret a fetish as perverted. Thus, some autogynephiles prefer the nice, clean, truth-obscuring notion of gender identity.
Hinkle seems to have accepted some activist talking points as fact, while ignoring much of the science—especially about puberty blockers. Since 98% of those who take them go on to medicate, they are not a “pause button,” giving gender dysphoric kids time to ponder what they want, but an onramp to a road of lifetime medicalization. But he says this isn’t an indictment of the treatment. Instead, it’s “consistent with the view that in 98% or more of the cases, the patient’s gender identity did not align with natal sex, this was accurately determined, and the patient was appropriately treated first with GnRH agonists and later with cross-sex hormones.” This, even though in the past puberty was what helped the vast majority of kids overcome dysphoria.
Hinkle’s ruling notes that the Florida ban prohibits puberty blockers only for “transgender children,” and not for those with, say, precocious puberty. Thus, it is discriminatory. But here he accepts the idea that there are transgender children who require medicating, instead of considering the possibility that it is the medication itself which creates transgender children. The kids who take blockers and/or hormones may have gender dysphoria, or cross-sex identities, or gender nonconforming behaviors, but they are not transgender until they transition. Transition is a pathway, a response, a coping mechanism.
It makes sense to take puberty blockers for precocious puberty—even though some who did claimed the drugs permanently hurt them. That’s a drug treating a condition. But in this case, the medication creates the condition. It treats an identity. Plenty of plastic surgery and cosmetic interventions do the same, and indeed make people feel better (hello, laser hair removal, goodbye middle-aged lady chin hairs!). But rarely are they covered by insurance. Rarely are they pitched to kids in preschool. Rarely are they battled over in court.
This ruling accepts so many hazy ideas, pretending they hold clarity.
Part of the problem with handling gender medicine in the courts, instead of figuring out how to properly regulate it via medical organizations and government health agencies that care about patient health, is that we end up battling ideologies instead of science. One man and his acceptance of radical ideas matters more than a systematic evidence review.
But Hinkle is right about one thing. “No country in Europe—or so far as shown by this record, anywhere in the world—entirely bans these treatments,” he noted. That is true. They had nonpartisan systematic evidence reviews. They had nonpartisan government agencies that listened to constituents and took in the science and created evidence-based guidelines, calling for more and better research and a whole lot of caution.
Who is calling for that here? Which state is trying to pass a law that resembles what much of Scandinavia is doing? Where are the politicians and clinicians who want to disavow the political polarization and instead create reform? Who wants to calm the fuck down so we can rationally figure out what to do? Who wants to sit with the complexity? Who wants to be more European?
Anyone? Anyone? Bueller?
Sigh. Nary a peep.
PS: I’m still working on a piece about the people behind the bans, if you can believe it. You know why it’s taking so long? Because the story is very, very complicated. More on that soon. In the meantime, please enjoy one of my favorite and most depressing Vic Chesnutt songs, above: Florida.
Lisa, thank you, yet once again, for your clarity. I particularly appreciated this observation: “Part of the problem with handling gender medicine in the courts, instead of figuring out how to properly regulate it via medical organizations and government health agencies that care about patient health, is that we end up battling ideologies instead of science. One man and his acceptance of radical ideas matters more than a systematic evidence review.”
I look forward very much to your article on the issue of bans. I have a personal view, which probably most aligns with that of Leor Sapir, but I am not nearly as well informed as you are on what needs to be considered here.
There is, BTW, for those who haven’t seen it, an excellent article in Forbes summarizing, among other things, the pulling back in Europe precisely because of the shoddy state of the science: https://www.forbes.com/sites/joshuacohen/2023/06/06/increasing-number-of-european-nations-adopt-a-more-cautious-approach-to-gender-affirming-care-among-minors/
In the last few days, I have made some inroads with additional friends on my D side of the aisle. What continues to be striking, though, even among those who are ordinarily skeptical of our profit driven Rube Goldberg health care “system,” is their willingness in this one instance to take it on trust that health care professionals know what they are doing and are basing it on sound science. I suspect the breathtaking ignorance and ideological illogic displayed by this judge will further exacerbate the problem.
The US could in principle restrict treatment to experimental studies, just like other countries....but let's look at what US studies have been done recently.
There's Olson et al., where they didn't bother to diagnose the young people in the study but just measured how long they stayed socially transitioned, there's Tordoff et al. (2022) where the majority of kids ended up medicalized but weren't seen to improve, and then there is Chen et al., 2023, which Singal discusses in detail, which had announced several outcome measures would be checked but which has only reported on 2 of the 8... (what happened to the other indicators they measured in the 2 years?) and two kids of the 315 committed suicide.
So yes, you could have US kids only being treated in studies, but the current studies are not protecting the young people right now (they or rather their parents are giving informed consent to clinicians who believe in the affirmative model and who at least write papers which are misleading and/or incorrect) and they are not being done well enough for anything to be learned. If an exception is made for studies, how do you make sure those in the studies are giving true *informed* consent (which rules out anyone listening to affirming clinicians as they are misinformed themselves). And how do you justify sterilizing young people to find out who might be helped or harmed by this? Minors?
The US has refused to look at facts, to do systematic reviews of the evidence, aside from Florida (and the Endocrine Society made recommendations which were stronger than the evidence seems to support, see the great article by Block in BMJ on this). So how do you keep every affirmative clinician from just saying they are doing a study and then business (and there's a lot!$$$$) as usual?
I don't have answers, would love to hear what you think. I don't think the answer is business as usual but I don't know how to deal with all the lies, bad faith and misinformation, I'm astounded they have gone on this long.