By Marie-Amélie George
A tweet turned Luna Younger’s personal struggle into a national controversy. Using 148 characters, Texas Governor Greg Abbott announced that the Texas Attorney General’s Office and the Texas Department of Family and Protective Services would be investigating the seven-year-old’s family. Prompting his declaration was a jury’s award of custody to Luna’s mother, Anne Georgulas, a pediatrician who supported Luna’s gender transition. A year before the case made its way into court, Luna had asked her parents to call her Luna, rather than her (traditionally male) legal name, to reflect her gender identity. That same year, a therapist diagnosed Luna with gender dysphoria, which is distress from the mismatch between a person’s assigned sex at birth and their gender identity. As a result, medical professionals recommended that Luna be referred to as “she” and be allowed to wear the feminine clothing and keep the long hair that she preferred. Luna’s father, Jeffrey Younger, registered his objection to Luna’s gender identity by shaving her head, even as he allowed Luna’s twin brother to maintain his locks. Georgulas petitioned for an order prohibiting her ex-husband from “engaging in non-affirming behavior and/or taking Luna outside the home as [her birth name], or allowing others to do so.” Jeffrey Younger counterclaimed for sole legal custody.
Luna’s case quickly became a symbol for broader debates over transgender rights and identity, which have only become more heated since Luna’s case made headlines in 2019. Legislators have introduced hundreds of bills that would limit medical professionals’ ability to provide hormone treatments to children, eliminate a court’s ability to consider a parent’s stance on gender transition in adjudicating the best interests of the child, or do both. The laws’ proponents have accused parents of subjecting their young children to irreversible medical procedures, a claim far removed from medical reality. A pre-adolescent child’s gender transition is social, marked by clothing, hairstyle, pronouns, and name, rather than a physical intervention brought about by puberty blockers, hormones, or surgery. Adolescents receive fully reversible medical treatments long before medical professionals will consider any options with potentially permanent effects.
Even in cases where hyperbolic accusations do not take the place of facts, the ultimate question of what is in the best interests of these children often seems impossible to determine. The challenge is that the science of gender identity development indicates that only adolescent children — defined as minors who have begun puberty — have a stable gender identity. The adult gender identity of pre-adolescent children, on the other hand, is often impossible to predict. Studies have shown that the vast majority — between 73% and 94% — of pre-adolescent children with gender dysphoria did not later identify as transgender adults. What complicates the debate is that the studies documenting desistance have significant methodological flaws that undermine their conclusions — so much so that the authors have re-evaluated the data and conceded that their statistics were incorrect. So too does that fact that some gender identity clinicians have actively attempted to discourage gender nonconformity in their patients, using now-discredited reparative therapy techniques. There is therefore no real answer to the question of how likely it is that gender dysphoria will persist into adulthood.
Parents, courts, and legislators alike have struggled with this scientific uncertainty. But scientists do provide some helpful guidelines. Given that an individual’s gender identity may be unknown, medical professionals agree that what many of these children need is the time, space, and opportunity to explore and come to terms with their gender identity. For that reason, scientists have endorsed two approaches to treating pre-adolescent children with gender dysphoria. One, the “affirmative approach,” facilitates children’s expression of their gender identity in all aspects of their lives. The second, known as “watchful waiting,” delays having the child live as their expressed gender until puberty. Under watchful waiting, which is also called the Dutch Protocol because it was developed in the Netherlands, children will not change their names or gender pronouns. However, children may engage in other types of gender exploration, such as dressing according to their gender identity at home. Despite the differences between the treatment approaches, both endorse the use of puberty blockers.
Describing gender as an identity that needs to be explored may seem odd given longstanding LGBTQ+ movement arguments as to the innate and unchanging nature of sexual orientation and gender identity. But simply because a trait is something a person explores before understanding it does not mean that gender identity is mutable. There is a difference between requiring time, thought, and experience to comprehend an identity and altering that identity. Additionally, that many people are confident of their gender identity does not reduce others’ need to come to terms with who they are. In other words, reframing debates into childhood gender identity does not deviate from the “born this way” argument that Joanna Wuest explores and critiques in her exciting new book, Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement. That fact may disappoint some members of the queer community, who identify their sexual attraction and gender identity not as fixed and unchangeable, but rather fluid and flexible. But it does offer a way of ensuring that families, courts, and legislators protect the rights of queer children who need to explore their gender identity.
What the scientific frameworks indicate is that legal efforts that identify childhood gender identity development as a known and fixed fact are both inaccurate and unhelpful. Rather than trying to identify the children’s “true” gender identity and limiting access to medical care, judges should be determining custody disputes based on which parent will best support a child’s gender identity exploration. Elected officials, on the other hand, should be enacting laws that promote children’s right to gender exploration, including protecting their access to gender affirming care. One way to do that would be to enact bans on conversion therapy, as twenty-two states have already done.
Scientific uncertainty does not mean that parents, judges, and legislators lack the information they need to serve the best interests of children. It does, however, require that decision-makers adopt a different framework for thinking about gender identity and transgender rights.
Marie-Amélie George is an Associate Professor at Wake Forest University School of Law and an expert on LGBTQ+ rights. Portions of this post come from “Exploring Identity,” Family Law Quarterly 55, no. 1 (2021): 1-67l
