Asking for a legal transition

MYRNA BROWN, HOST: It’s Thursday the 16th of November, 2023. This is WORLD Radio and we’re so glad you’re along with us today. Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard. First up on The World and Everything in It: protecting children from the irreversible damage of transgender procedures.

Earlier this month, lawyers from the American Civil Liberties Union asked the Supreme Court to take a case about a Tennessee law that restricts transgender treatments for anyone younger than age 18.

BROWN: Here’s WORLD Reporter Juliana Chan Erickson with what arguments the ACLU is making, and how supporters of Tennessee’s law are responding.

JULIANA CHAN ERIKSON, REPORTER: Tennessee is far from the only state setting limits on when children can get transgender medical procedures. Back in 2021, Arkansas was the first state to pass a law limiting access to puberty blockers and cross-sex hormones.

5NEWS: Arkansas lawmakers have now overridden Governor Asa Hutchinson’s veto making The Natural State the first in the nation banning transgender youth from getting gender confirmation medical care.

Alabama and Arizona followed in 2022.

12NEWS: Arizona’s legislature has passed three controversial new bills aimed at when a woman can get an abortion and transgender rights.

But then in 2023, 19 states passed restrictions.

FOX13NEWS: The Utah state Senate gave final passage to the bill on transgender youth.

KENS5: Texas lawmakers last night passed a bill restricting transgender care for minors.

WHAS11: And tonight one of the nation’s toughest anit-trans bills is now law in Kentucky.

Tennessee Governor Bill Lee signed a similar law in March this year. Since then, lawyers have filed challenge after challenge against Tennessee and the other states. Back in June, one of those lawsuits resulted in a judge overturning Arkansas’s law.

But the rest of these challenges have gone nowhere. One month after Tennessee’s law was signed, lawyers from the ACLU challenged it in a district court. Then Tennessee’s attorney general took it to the appeals court, where Judge Jeffrey Sutton sent everyone back to square one—and upheld Tennessee’s law.

Now the ACLU lawyers hope the Supreme Court will settle it.

The group’s lawyers represent families of children who identify as transgender. One of their underage clients, a 16-year-old identified as L.W., says puberty blockers and estrogen helped resolve the teen’s depression. Here’s L.W. speaking on NPR’s Morning Edition.

L.W.: I was definitely very depressed before I went on estrogen, especially before puberty blockers, because I really just, like, wasn't myself. And it was just difficult to care about everything around me.

The ACLU argues that when Tennessee prevents biological males like L.W. from obtaining female hormones, the state is discriminating on the basis of L.W.’s sex.

I asked a few lawyers about that argument. Randall Wenger, chief counsel at the Independence Law Center in Harrisburg, Pa., says that treating groups of people differently isn’t necessarily a bad thing, or even wrong.

RANDALL WENGER: It's not sex discrimination. It's not gender identity discrimination, just because it implicates one class more than another class, it doesn't mean that it's aimed at hurting a class of people.

Wenger says Tennessee has the right to protect children from getting drugs or procedures it decides are harmful. He says this could include transgender treatments. Puberty blockers and cross-sex hormones are currently not FDA-approved for children who suffer from gender dysphoria. And researchers are still studying the long term well-being of children who use cross-sex hormones. That includes the possible effects on their fertility down the road.

The ACLU also challenged Tennessee’s ban on what the group calls “sex transition surgery.” But Wenger argues that the terminology isn’t accurate.

WENGER: We'll talk about in terms of sex reassignment surgeries, or gender confirmation surgeries, when really these are simply sexual cosmetic surgeries. You're not changing anything. You're not making something function, the way that the human body was designed to function.

Speaking of function, the ACLU is also challenging how parental rights should function in this situation. The organization’s lawyers argue that parents should have the right to decide whether their child should have puberty blockers and cross-sex hormones—not the state.

But Jonathan Scruggs, a lawyer from Alliance Defending Freedom, disagrees.

SCRUGGS: Parents don't have the right to access dangerous medical care, you know, for children, if it's dangerous, then the state can regulate.

Erin Friday, a California parent of a child who once identified as transgender, says LGBTQ advocates are telling children with gender identity issues a dangerous message about their bodies.

ERIN FRIDAY: What transgenderism is, is people colluding and telling that child Yeah, you know what, you are wrong, everything about you is wrong. And we're going to fix that. It's a really cruel movement to tell a child that they are wrong. And the only way that they're going to be fixed is if you start sticking needles into your belly and pumping your body with testosterone. It's an awful thing to do. And we need to stop doing it.

If the Supreme Court does hear this case, it could decide to strengthen the law in Tennessee and similar ones in other states. But it could also put them all in jeopardy.

Lawyers Scruggs and Wenger do not think the Supreme Court will accept this case. They told me the Court will probably wait for the proverbial dust to settle, both among states and within the scientific community. But the Biden administration upped the ante last Monday when it submitted its own petition asking the Supreme Court to weigh in. So it’s likely only a matter of time before the Court takes a case like this one. And when that happens, a lot will be at stake, both for children and for the states trying to protect them.

Reporting for WORLD, I’m Juliana Chan Erikson.

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