There Is No Constitutional Right to “Gender-Affirming” Care


There Is No Constitutional Right to “Gender-Affirming” Care

Jul 31, 2023 7 min read
Sarah Parshall Perry

Senior Legal Fellow, Meese Center

Sarah Parshall Perry is a Senior Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
“Detransitioner” Chloe Cole speaks as Rep. Marjorie Taylor Greene, R-GA, looks on during a news conference on Capitol Hill on Sept. 20, 2022. Drew Angerer / Staff / Getty Images

The U.S. House Judiciary Committee held a hearing Thursday on “The Dangers and Due Process Violations of ‘Gender-Affirming Care’ for Children” and exposed how children are being coerced by adults in positions of authority into life-altering and medically questionable “gender transition” drugs and procedures without anyone having a full understanding of their impact, including the doctors who prescribe and perform them.

The hearing began in a rather unusual way—with a podcast. In a brief clip, Dr. Blair Peters, a self-described “queer surgeon” at the Oregon Health & Science University in Portland, explained that in the field of “gender medicine,” they are “just kind of learning and figuring out what works.”

He went on to say, “We know almost nothing about these outcomes,” prompting Rep. Mike Johnson, R-La., to describe the clip as “nightmarish,” a form of “barbarism,” and proof that these medical procedures should be prohibited by law.

Ranking Democratic member Rep. Mary Scanlon, D-Pa., called the hearing an attempt to “motivate right-wing voters” and impose “ultra-conservative and religious views” onto the rest of America. She seems to have forgotten, however, that no parent has a constitutional right to injure their own children.

She seems to have also forgotten that the federal government and every state and territory have child welfare laws on the books that recognize the appropriateness of government intervention when minor children are being subjected to physical, and in some cases, emotional harm by their custodial parents or guardians.

In fact, a federal appellate court that then included the late Justice Ruth Bader Ginsburg held in 2007 that medical care of any kind is not a constitutional right.

Democratic member Rep. Jerry Nadler, D-N.Y., led with a monologue on “bigotry” from the Republicans and their attempt to grab “15 minutes of fame.” Importantly, he made a flatly incorrect statement of law: that the federal circuit courts are in “alignment” that state bans on “gender-affirming” care are unconstitutional.

In fact, a recent decision by the U.S. Court of Appeals for the 6th Circuit, when the court was considering such a state ban out of Tennessee, reached the opposite conclusion. The court in that case held that the state law did not violate either parents’ constitutional right to direct the upbringing of their children or constitutional protections that require all individuals to be treated equally regardless of sex. Some have posited that this case may now be headed to the U.S. Supreme Court.

Next up, the 11th Circuit will hear a constitutional challenge to Florida’s gender-affirming medicine ban for minors. In a previous case, Adams v. St. Johns County School Board, that court determined that a school’s sex-segregated bathroom policy was not a violation of the Constitution because (just as the Tennessee ban does) it treated all students equally, regardless of sex.

Finding that the law that restricted “transgender” students’ access to bathrooms that corresponded to their biological sex to be constitutional, it may well reach the same conclusion as the 6th Circuit when considering a law on transgender minors’ access to invasive medical treatments.

Paula Scanlan, a former University of Pennsylvania swimmer, testified to the Judiciary Committee about the countless hours of effort she put toward her pursuit of a roster slot on an NCAA Division I swim team. In September of 2021, “Lia” Thomas (formerly Will) began swimming in her event. She testified about how this affected the women on the swim team who were forced to change and shower alongside a 6’4” male swimmer with male genitalia 18 times per week.

The athletics department, Scanlan said, offered psychological “reeducation services” to the athletes who were uncomfortable with this. Scanlan’s pain was palpable as she described the refusal of the university to consider the impact of “Lia’s” presence on sexual assault survivors like her.

May Mailman, a senior fellow at the Independent Women’s Law Center, addressed the legal implications of including transgender athletes on women’s sports teams under Title IX of the Education Amendments of 1972. Title IX prohibits sex discrimination in any educational program that receives federal funding and was once the shining star of the feminist movement, creating sports, facilities, and other opportunities for women that parallel men’s.

But the Biden administration’s Department of Education is in the process of developing a new Title IX rule that will dissolve legal protections for women in athletics, guaranteeing that Scanlan’s situation may soon become the rule and not the exception.  

Dr. Jennifer Bauwens, a clinical psychologist and the director of the Center for Family Studies at Family Research Council, testified that children are, and have always been, recognized to be a special and vulnerable class because they do not possess the capacity to make lifelong decisions. State laws that ban smoking, marriage, alcohol use, contracting, and more for those under the age of 18 recognize such an absence of capacity.  

Johnson pointed out that Rep. Sheila Jackson Lee, D-Texas, the notably vocal Democratic member of the committee who was present at Thursday’s hearing, has herself previously admitted, “In essence, the brain doesn’t fully mature until about 25 years old. Does that tell us about high schoolers, middle schoolers, and yes, young people who may make rash, or irreverent, or spontaneous decisions? Should that be their life?”

While Jackson Lee had made the statement within the context of a criminal law hearing, the principle cannot be applied indiscriminately. If minors are somehow incapable of fully understanding the criminal consequences of their actions, if state laws and longstanding legal principles recognize that minors lack the mental and emotional capacity to engage in life-altering conduct, these same children cannot be said to fully understand the likely effects of irreversible, dangerous, and experimental medical interventions. That’s especially true when gender dysphoria often masks other mental health disorders.

Perhaps the most impactful testimony of the morning came from Chloe Cole—a young woman who once believed herself to be a boy but has since “detransitioned.” She was the subject of significant medical interventions to “treat” her gender dysphoria, including a double mastectomy at the age of 15.

She testified she was a victim of biggest medical scandal in America, and that what she once believed to be her desire to transition was simply her discomfort with normal pubertal development and the intimidating and unwelcome male attention she received. Cole described the coercion her parents experienced in signing the consent forms that led her down a path to surgical intervention when they were asked, “Would you rather having a dead daughter or a living [transgender] son?”

Democratic representatives and their invited witnesses repeated common talking points about uniformity of opinion among major medical organizations in treating gender dysphoric minors—among them, the American Academy of Pediatrics.

But, as Bauwens testified, 80% of the American Academy of Pediatrics membership has asked for a review of the clinical literature on gender medicine—a request that has fallen on deaf ears. Several European nations, too, have backtracked from their original eagerness to provide gender transition interventions, including Finland, Sweden, Norway, France, and the United Kingdom—something the U.S. medical establishment fails to acknowledge.

Rep. Matt Gaetz, R-Fla., engaged in a heated exchange with Democratic witness Shannon Minter of the National Center for Lesbian Rights about the recently passed Washington state law that hides runaway gender-dysphoric minors from their parents if the parents do not support medically invasive “affirmations” of their transgenderism, calling it a violation of parents’ constitutional rights. While Minter countered that the law did not “hide children” from their parents, a close reading of the bill proves otherwise.

Additional violations of parents’ rights are also occurring in school districts that are hiding from parents the social gender transitions of their children and the use of their children’s “preferred pronouns.”

What’s clear from Thursday’s hearing is that the constitutional right of parents to direct the upbringing of their children is indeed being violated. But those violations are not occurring when states protect minors from getting experimental “gender-affirming” treatments. The violations are transpiring in blue states that are cutting parents out of the equation altogether.

This piece originally appeared in The Daily Signal

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