By Aziza Ahmed
On August 21, 2023, the 11th Circuit issued a decision that allowed a ban on transgender care to go into effect in Alabama. The Alabama ban, formally called the Alabama Vulnerable Child Compassion and Protection Act, is one of the most extreme of the many bans on gender affirming care. The law defines sex as the “biological state of being female or male, based on sex organs, chromosomes and endogenous hormone profiles…genetically encoded into a person at the moment of conception…” and targets physicians who might undermine this notion of sex with criminal prosecution. Their punishment could be up to ten years in prison.
Of course, Alabama is only one of the many states in the past few years to pass anti-gender affirming care laws. The focus on physicians and medical care means that questions about science and evidence are at the forefront of debates about if and how this care should be delivered to young people. Those who support the bans often frame gender affirming care as an experimental treatment. Doing so invokes a sordid picture of physicians taking advantage of young children through the promotion of aggressive treatment. And, they argue that the treatments themselves are scientifically unsound. The argument that gender affirming care does not meet adequate standards of scientific and medical rigor has picked up steam and shored up the broader political project to delegitimize the very idea of transgender people.
Supporters of gender affirming care respond to these critiques by noting that hormonal treatments have existed for decades for many conditions related to sex and gender. Specific guidelines for transgender health have existed since at least the mid 1990s. Gender affirming care for young people is delivered in keeping with most pediatric care: in line with an accepted standard of care and in consultation with parents.
These legal battles beg the question of how lawyers and advocates mobilized science in service of laws pertaining to gender and sexuality. Joanna Wuest’s new and captivating book, Born this Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement, begins to answer this question, offering a lens into how advocates both for and against LGBT rights have claimed scientific and medical expertise to bring legitimacy to their cause. Her book follows an important tradition in gender studies: disrupting the supremacy of scientific truth in order to make room for a more complicated understanding of how gender is made in society.
For legal scholars, Wuest highlights the contingency of scientific claims not only in LGBTQ+ advocacy but also in intersecting areas, including legal advocacy for and against abortion access. As Wuest notes in her book, the back and forth in the debate on gender affirming care has deep echoes in debates about how to regulate abortion care. The targeting of physicians and medical care is a longstanding feature of conservative attempts to regulate sex and gender. Like in the context of gender affirming care, conservatives have cloaked attempts at banning abortion under the guise of protecting women by making medical care safer. While in the trans health context, it is the predatory and experimental caretaker who may harm a young person, in the context of abortion looms the specter of the backstreet “abortionist.” Under this guise of protecting women, abortion regulations actually served to undermine access to a necessary procedure. Justice Ginsburg connected these dots clearly in her concurrence in Whole Women’s Health. (I’ve written about the law and politics of scientific and medical evidence and expertise in the abortion context here, here, and here.)
When the safety of trans health care and abortion care are called into question, Wuest notes that conservatives exploit the possibility of uncertainty to shift the conversation away from best medical practice to a focus on the possibilities of experimental or uncertain treatment. In the abortion context, examples of this strategy abound. Most recently, in the context of medical abortion, conservatives have tried to undermine and roll back FDA approval of mifepristone by raising concerns about whether the approval of the drug itself was based on adequate evidence. Where undermining the drug approval didn’t have traction, conservatives instead claimed that there was not enough evidence for the FDA to approve of a series of changes to mifepristone regulation in 2016. (A simultaneous shift in approved gestation period and dosage for mifepristone use.) Similarly in the context of gender-affirming care, conservatives often argue that the care children are receiving are not based on rigorous data or study. They fail to acknowledge that in addition to studies, multiple modalities of information gathering can inform medical treatment.
Wuest acknowledges that these fights, are in part, a quest for truth. For health law scholars, one might ask how this battle over facts will eventually bring us to a stable legal environment that enables access to health care. Wuest does not directly answer this question. Instead, her detailed account forces us to accept an uncomfortable dynamic: that truth seeking has its own effects in the world and is made from inside the legal, social, and political context that encompass advocacy. As part of a knowledge ecosystem, legal reform projects may never result in stability, instead they are part of an ongoing struggle to make truths on gender and sexuality.
Aziza Ahmed is a Professor of Law, N. Neal Pike Scholar, and Co-Director of the Program in Reproductive Justice at Boston University School of Law.
