a man waves an intersex-inclusive progress pride flag in the wind on the sky.

Certainty and Uncertainty in Trans-Intersex Science Politics

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).

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SACRAMENTO, CA, U.S.A. - OCTOBER 9, 2021: A mother and child march with Proud Mom and Trans Rights are Human Rights signs during the National Trans Visibility March.

Protecting Trans Children: Scientific Uncertainty and Legal Debates Over Child Custody and Access to Care

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.

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MONTREAL, CANADA -16 AUG 2015- The annual Fierte Montreal parade took place on August 16, 2015 on Boulevard Rene Levesque in Central Montreal. It is the largest Gay Pride in the Francophone world.

“Born This Way,” LGBTQ+ Rights, and the Politics of Uncertainty

By Joanna Wuest

“Medical uncertainty” is no straightforward matter when it comes to LGBTQ+ health and civil rights. Take for instance the 11th Circuit Court of Appeals 2020 decision striking down a pair of municipal ordinances in Florida that had banned so-called “conversion therapy” for minors (contemporary psychology’s preferred nomenclature is “sexual orientation and gender identity change efforts”). In an enormous blow to the evidence-based notion that such change efforts are harmful — they are indeed responsible for much trauma and death — two Trump-appointed judges declared that the science of sexual orientation and gender identity was much too uncertain to justify the bans. Gesturing to the American Psychiatric Association’s (APA) renowned 1973 removal of homosexuality from its list of disorders, the judges explained that “it is not uncommon for professional organizations to do an about-face in response to new evidence or new attitudes.” Ergo, because the APA had changed its mind once fifty years ago, it may just as easily reverse itself again. According to this view, we may one day wake up to find that mental health professionals have reclassified queerness as a malady to be cured rather than a sense of self to be embraced and protected by law.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

303 Creative, Transgender Rights, and the Ongoing Culture Wars

By Michael R. Ulrich

The Supreme Court’s ruling in 303 Creative LLC v. Elenis suggests a willingness to ignore the rights and health implications for minority populations under the guise of protecting against theoretical harms. The decision is a crucial blow to strides made in achieving gay rights, and may bolster other attacks on LGBTQ+ rights. As laws that restrict the rights of transgender people in the U.S. face challenges in court, the legal, public health, medical, and bioethics communities have an essential role to play both in properly framing the legal issue, as well as explaining what is truly at stake in these cases to minimize the chances of similarly harmful rulings for the transgender community moving forward.

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Public toilet that is bright and clean with a male-female sign and the toilet for the disabled is clearly distinguished.

Trans-antagonism Creates Space for the Worst Side of the Law

By Adam Herpolsheimer

By no means the first foray into gender identity-based discrimination, the legacy of North Carolina’s HB2 (2016) — known colloquially as the bathroom bill — is one we cannot shake. The law has since been repealed but was ultimately a turning point for what was possible in terms of legal action against the trans community. HB2 was particularly bothersome and ill-advised because of the legal mechanism it used to achieve its goals: preemption.

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Brooklyn, New York, United States - JUNE 13 2021: Protest in Brooklyn, NY for trans youth rights.

Misleading, Coercive Language in Bills Barring Trans Youth Access to Gender Affirming Care

By Arisa R. Marshall

On Friday, a federal judge temporarily enjoined part of a new Alabama law that would make it a felony for physicians to provide gender-affirming care to trans youth. The law had been in effect for less than a week.

This is only the most recent development relating to a raft of anti-trans legislation sweeping the country. More than twenty bills that would impose life-changing healthcare restrictions on transgender children have been introduced in statehouses nationwide over the past two years, threatening the wellbeing of transgender youth and communities. Most of these bills aim to entirely ban gender-affirming medical care for minors, including surgeries, prescription puberty blockers, and hormone replacement therapies.

These laws are detrimental to the mental, physical, and social health of children. They are dismissive of the experiences of transgender children and teenagers, misleading, and manipulative.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

Affirming Nondiscrimination Rights: HHS Needs to Acknowledge a Private Right of Action for Section 1557 Violations

By Cathy Zhang

Last week, on the heels of attacks on trans youth and their families in Texas, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a notice and guidance expressing support for transgender and gender nonconforming youth and highlighting the civil rights and privacy laws surrounding gender affirming care.

OCR all but names the Texas attacks as unlawful under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability by federally funded health programs or activities. It notes that for federally funded entities, restricting medically necessary care on the basis of gender — such as doctors reporting parents of patients to state authorities — “likely violates Section 1557.”

The guidance directs those who have been discriminated against on the basis of gender identity or disability in seeking access to gender-affirming health care to file a complaint through OCR. HHS can go further, however, by formally acknowledging that individuals have a legal right to enforce Section 1557 when they have experienced prohibited health care discrimination.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

The Many Harms of State Bills Blocking Youth Access to Gender-Affirming Care

By Chloe Reichel

State legislation blocking trans youth from accessing gender-affirming care puts kids at risk, thwarts physician autonomy, and potentially violates a number of federal laws, write Jack L. Turban, Katherine L. Kraschel, and I. Glenn Cohen in a viewpoint published today in JAMA.

So far this year, 15 states have proposed bills that would limit access to gender-affirming care. One of these bills, Arkansas’ HB1570/SB347, already has become law.

This legislative trend should be troubling to all, explained Cohen, Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. In an email interview, he highlighted “how exceptionally restrictive these proposed laws are,” adding that they are “out of step with usual medical, ethical, and legal rules regarding discretion of the medical profession and space for parental decision-making.”

Turban, child and adolescent psychiatry fellow at Stanford University School of Medicine also offered further insight as to the medical and legal concerns these bills raise over email.

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