By Maayan Sudai
Joanna Wuest’s Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement describes the evolution of the “born this way” framework through pivotal moments in the history of the LGBTQI+ movement.
A central theme of the book’s analysis is the role that “certainty” and “uncertainty” play in the legitimation of science-based policy regarding sexuality and gender issues. Uncertainty of what might happen has been pitted against LGBTQI+ reforms, from when conservative researchers and practitioners argued the exposure of young children to an openly gay guardian or schoolteacher could be harmful (p.92), to present-day attempts to leverage uncertainty to block trans access to sex-segregated bathrooms, prisons, and shelters (p.181).
Most recently, the politics of uncertainty, specifically the uncertainty of knowledge, has been used in the context of gender affirming care bans, legislated in more than 21 states in the U.S. These are laws meant to block trans youth’s access to gender affirming hormonal and surgical interventions. Prominent civil rights organizations are rightfully challenging these laws in federal courts. As Wuest correctly observes, conservative right-wing legislators who defend gender affirming care bans in court bring their own “ally experts” as witnesses or via amici briefs. These experts undermine the scientific basis of generally accepted medical protocols (such as those of WPATH, the World Professional Association for Transgender Health) by casting them as experimental, “unsafe”, “dangerously untested,” and require “additional research”(p.17).
Uncertainty is indeed being weaponized against science that conservatives don’t like, but we shouldn’t forget that uncertainty introduces questions to grapple with that are essentially good. Critiques leveraging “uncertainty” — expressed as a lack of sufficient research and evidence, the experimental nature of medical interventions, and a lack of scientific consensus — flag important cautionary signs of harmful medical practices. In fact, these more-or-less exact arguments about “uncertainty” are still made by intersex rights advocates and organizations that have been fighting since the 1990s against coercive medical protocols that recommend intersex infants undergo surgical and hormonal interventions to assign them to one sex (either male or female). This medical practice started to develop from the mid-19th century after much internal controversy within the surgical profession. While buds of recognition of the harms caused by these protocols are starting to appear in top-U.S. children’s hospitals, these highly controversial practices still are considered the standard in the latest Lawson Wilkins Pediatric Endocrine Society (LWPES) and the European Society for Pediatric Endocrinology (ESPE) consensus statement on intersex care.
Intersex rights activists have been struggling for decades against the totality of medical authority, and much like the homophile movement of the 1960s, are allying with non-orthodox experts who help to rebut the pathological paradigm that coerces normalizing medical interventions and discrimination, in order to generate a new protocol for intersex infants that postpones or reduces unnecessary medical interventions. As we see from the trans and intersex experience, medical protocols can be both empowering and affirmative, but also coercive and harmful. As I argue in a work-in-progress with Ido Katri about “The Inter-Trans Legal Paradox,” which examines conflicting legal frameworks by both movements, this clash takes a jarring form in courts discussing gender affirming care for trans youth. Prominent civil rights organizations who recognize and share the intersex movement’s criticism on such protocols still argue for the “sanctity” of patient-doctor relationship and doctors’ first amendment right to comply with the standard medical protocol. Given these conditions, it seems crucial to develop a way to navigate the turbulent landscape of law and science in politically contested areas such as sex and gender.
Sifting between scientific knowledge and biomedical claims has been an enduring challenge for me as a scholar and researcher of law, science, and gender. The use of “uncertainty” as a weapon against gender affirming care can be explained by the structure of legal doctrine for admissibility of expert evidence, known as the Daubert standard that requires inter alia that a new theory be tested and generally accepted in the scientific community. But, admissibility of evidence aside, what makes science ethical? Responsible? Worthy of my trust? I, along with colleagues from the GenderSci Lab at Harvard, have offered key considerations for researchers conducting biomedical research on sex-related variables on how to perform reflective, ethical, and accountable science. We recommended they be aware of the political implications of their research findings. We offered to consider community norms and collaborate with patient representatives. Sara S. Richardson has offered a set of guiding questions to generate transformative conversations about research standards, for example: who counts as an authoritative knower or expert in the scientific field? To whom are scientific researchers in this field accountable? What questions can be asked or answered using scientific methodology within the area of study, and which cannot? These scattered questions and themes make a similar point: responsible and accountable science is sensitive to context and to the implications it may produce to individuals and communities, it incorporates peer- and self-criticism in the earliest stages of research design, and it takes the experiences of subjects seriously and engages with their needs and interests. Returning to the politics of uncertainty, I find these guiding questions helpful in sorting out between conflicting scientific claims and medical practices.
Courts are not laboratories, I know. Nevertheless, as Wuest shows convincingly, biopolitical claims have become intensely intertwined with sex and gender jurisprudence. I agree with Wuest that scientific expertise is not a secure basis for promoting equalitarian reforms in law, but also recognize that scientific expertise has been proven useful in certain legal contexts, and is essential for many individuals to live full, flourishing, healthy lives. Because in the field of sex/gender jurisprudence the temptation to incorporate scientific claims in litigation strategy is constant, I want to congratulate Wuest for encouraging the LGBTQI+ movement to maintain a critical stance towards, and safety margins from its relationship with scientific and medical knowledge.
Maayan Sudai is an Assistant Professor of Law and of Women and Gender Studies at the University of Haifa and the Director of the Biology and Sexual Diversity in Law and Public Policy team at Harvard University’s GenderSci Lab.
