Courts Are the Wrong Venue for Policymaking in Pediatric Medicine


Transgenderism’s swift march through the institutions has relied heavily on the courts. Among the most recent examples is Eknes-Tucker v. Marshal, in which a federal judge blocked key provisions in Alabama’s Vulnerable Child Compassion and Protection Act. The law bans “gender affirming” therapy for minors—a euphemism for using puberty-blocking drugs, synthetic hormone injections, and surgeries on adolescents who experience distress associated with their sex. The court issued a preliminary injunction that left the law’s ban on surgeries intact but declared the ban on puberty blockers and cross-sex hormones as very likely unconstitutional.

What makes Eknes-Tucker especially interesting is that the judge in that case, Liles C. Burke, is a Donald Trump appointee with a history of collaborating with and defending the Federalist Society. In 2020, another Trump appointee and Federalist Society friend, Supreme Court Justice Neil Gorsuch, wrote the 6–3 opinion in Bostock v. Clayton County extending Title VII protection to transgender employees using an “original public meaning” approach. Yet Gorsuch went out of his way in that case to clarify that the decision did not turn on whether “sex” meant reproductive traits or a subjective sense of self, and indeed that the Court was willing to assume the conventional definition.

In Eknes-Tucker, by contrast, the question of what makes us male or female, and how the medical establishment should understand and respond to these realities, is more central and harder to ignore. If transgender boys really are girls whose insecurities have led them to internalize stereotypes and to want to escape what feels like a confining femininity by crossing to the other side of the gender ledger, then confirming that those insecurities are sound and treating them with drugs and surgeries constitutes an egregious breach of medical ethics.

Judge Burke’s decision rests on three distinct claims. First and probably most important is that a broad medical consensus exists in favor of “gender affirming” therapy, at least when used on patients who have been properly vetted by mental health professionals. Judge Burke rejected Alabama’s claim that pediatric transition medicine is “experimental,” citing the testimony of plaintiffs’ expert witnesses and an amicus brief submitted by 23 medical organizations.

This medical consensus is a house of cards. As with previous lawsuits pertaining to transgenderism, the claims made on behalf of science and medicine weaken as one traces their sources and citations. Of the 23 medical organizations that signed on to the amicus brief Judge Burke cites, the three most important are the American Academy of Pediatrics (AAP), the Endocrine Society (ES), and the World Professional Association for Transgender Health (WPATH). Amici’s argument that transgender youth are prone to depression and suicide and that only “gender affirming” interventions can reduce or alleviate their despair rests on policy statements made by these three groups in particular.

In 2018, pediatrician Jason Rafferty and a number of other medical professionals authored a policy document entitled “Ensuring Comprehensive Care for Transgender and Gender-Diverse Children and Adolescents” on behalf of the AAP. The document’s central argument is that “watchful waiting,” an approach to medical intervention that treats the administration of puberty blockers and cross-sex hormones as a regrettable last resort for youth whose dire mental state does not improve with counselling, is no different than “conversion therapy,” the discredited practice of trying to “convert” gays and lesbians into heterosexuals.

Soon after the AAP guidance came out, James Cantor, a psychologist and researcher in the field of youth sexual development and the expert witness testifying for Alabama in Eknes-Tucker, agreed to fact-check the AAP document. It is common for academics to expose flaws in each other’s work, but Cantor’s critique of the AAP is an especially devastating example in this genre. The critique is worth reading in full, but a few examples will suffice.

First, a total of 11 studies had been done on youth with gender dysphoria (formerly gender-identity disorder) by the time the AAP released its statement. All 11 had found that the condition disappeared in a large majority of the children by the time they hit puberty. Yet the AAP inexplicably omits these studies from its review of the research.

Second, the AAP insists that “conversion therapy” has “been proven to be not only unsuccessful but also deleterious” and that it lies “outside the mainstream of traditional medical practice.” Yet not a single study it cites in support of this claim actually examined gender identity; all dealt with sexual orientation. This is especially puzzling considering the AAP’s own assertion that sexual orientation and gender identity are entirely different and independent phenomena.

Third, the AAP claims that a medical consensus already exists against “conversion therapy,” citing five sources. Yet these sources found that most kids with cross-gender identification revert back to their natal sex, meaning “convert” spontaneously to “cisgender.” There is no parallel phenomenon for homosexuality.

Fourth, one of the sources on which the AAP relies when equating “watchful waiting” with “conversion therapy” explicitly notes the “lack of empirical evidence from randomized, controlled trials of the efficacy” of “gender affirming” therapy. Unsurprisingly, the source concludes that “it is desirable to help adolescents who may be experiencing gender distress and dysphoria to defer sex reassignment until adulthood.” In other words, even in the most charitable interpretation, the source supports “watchful waiting.”

The Endocrine Society Guidelines, published in 2017 in the Journal of Clinical Endocrinology and Metabolism, represent the second key document cited by amici. The guidelines use a system to rate the strength of a recommendation and the quality of evidence in support of that recommendation, which can be “very low,” “low,” “moderate” or “high.” The guidelines consistently find that the evidence in support of using puberty blockers and cross-sex hormones to treat minors with gender dysphoria is either “very low” or “low.” Indeed, they also raise basic concerns voiced by critics of pediatric transition and reflected in the text of the Alabama law itself. These include the extraordinarily high rate (about 85 percent) of desistance (i.e., coming to terms with the reality of one’s body) among children diagnosed with gender dysphoria, as well as the difficulty of clearly distinguishing youth whose distress is likely to persist from those whose distress is temporary. The guidelines also recognize that “social transition,” far from being neutral support, is closely associated with persistence of gender dysphoria—meaning that by using a minor’s preferred name and pronouns, parents, teachers, and therapists can unintentionally lock in what would otherwise be a transitory phase and put a minor on a path to irreversible hormones and surgeries. This danger was recently confirmed—perhaps inadvertently—in a study wrongly interpreted as lending support to gender-affirming therapy.

Amici’s third source is the seventh version of the Standards of Care (SOC) for the Health of Transsexual, Transgender, and Gender-Nonconforming People, published by the World Professional Association for Transgender Health (WPATH). The key to understanding the SOC’s approach to managing youth gender distress is an unproven metaphysical assertion buried within the document. At one point, the authors of the SOC write: “neither puberty suppression nor allowing puberty to occur is a neutral act.” The body’s spontaneous processes of development and change do not exist outside of, and thus have no ontological priority over, human will, feeling, or desire. Puberty doesn’t just occur; it is “allowed” to occur, and this “allowing” is presumably based on culturally derived, and thus arbitrary, preferences.

Several years earlier, an influential article by some of the SOC’s authors described the ethical implication of this metaphysical assertion. It called for reconsidering the “classical medical ethical adages such as ‘in dubio abstine’ (when in doubt, abstain from intervention) and ‘primum non nocere’ (first, do no harm)” in the context of treating gender-distressed youth. In practical terms, the metaphysical assertion makes it unnecessary to wait for evidence that intervening in the body’s natural course of development will yield more benefits than harms. It puts the burden of proof on those who argue against medical intervention. Hence, the lack of evidence behind the AAP and ES guidelines need not pose a problem.

Though the medical amicus brief in Eknes-Tucker relies mainly on the AAP statement, the ES Guidelines, and the WPATH SOC, one additional citation mentioned in the brief is worth noting. Amici insist that puberty blockers are “fully reversible”—a claim that has been vigorously and thoroughly criticized for its unwarranted extrapolation from another medical condition (precocious puberty), its lack of substantiating research, and its breathtaking naivete about childhood psychosexual development. In support of this claim, amici cite an article published in 2021 in the New England Journal of Medicine. The article is openly and unapologetically a work of advocacy written in response to efforts by Republican-governed states to limit pediatric gender transition medicine. Its authors cite not a single piece of evidence for their claim that puberty blockers are “fully reversible;” they merely assert it. As I have pointed out in the past, the reversibility claim is unsupported by relevant research and runs counter to what we know about psychosocial development in youth. Such “idea laundering” is ubiquitous throughout transgender lawsuits.

The second foundation for Judge Burke’s decision is his belief that Alabama’s law infringes on the right of parents to make decisions regarding the health-care needs of their children. Recognizing a growing trend of teachers and school administrators facilitating students’ “social transition” without knowledge or consent of their parents, Americans of various political persuasions have begun to argue in favor of strict parental-notification requirements. A number of states—most notably Florida—have passed or proposed laws that would compel school personnel to disclose gender-related information to parents. Alabama’s law itself contains such a provision, and Judge Burke left it unscathed. But in his understanding, parental rights cut both ways: to criminalize medical providers who prescribe or administer puberty blockers and cross-sex hormones is to undermine the right of parents who do seek these interventions for their children.

Burke’s approach to parental rights has surface appeal, especially to those who understand rights as formal and content-neutral. On closer inspection, however, whether one agrees with Burke’s parental rights argument depends on whether one agrees with him on the merits of pediatric gender medicine. Few would disagree that parents should have the right to direct the medical care of their children, but fewer still would argue that this right includes the ability to subject their children to high-risk, experimental interventions backed by pseudoscience and posing as “health care.”

Courts have long grappled with how to balance parental discretion against medical risk. In the 1991 case Newmark v. Williams, the Delaware Supreme Court held that Christian Science parents had the right to refuse chemotherapy for their young child. Essential to the court’s analysis was the fact that the treatment would be painful and had only a 40 percent chance of success. As the risks of treatment decrease and the chances of its success increase, the court explained, the right of parents to refuse treatment recedes. Applying the same kind of analysis to pediatric gender transition would, in all likelihood, empower parents to refuse these interventions but not to agree to them.

The third contention on which Burke’s decision relies is that Alabama’s law deprives “transgender minors” of their right under the Fourteenth Amendment to equal protection under the law. This is perhaps Eknes-Tucker’s most bizarre conclusion, though it is consistent with what federal courts have said in the past. As Judge Burke explains, the equal-protection violation arises because the Vulnerable Child Compassion and Protection Act “singles out transgender minors,” depriving them—but not non-transgender minors—of access to “gender affirming” interventions. It seems not to matter to Burke’s analysis that only “transgender minors” seek such interventions in the first place. Imagine if a court struck down an FDA decision refusing to approve an experimental cancer drug on the grounds that the agency’s decision singled out cancer patients. This is a claim about disparate outcomes, not discriminatory treatment—and a most unusual claim at that.

Some context is helpful here. Transsexuals (as they were called then) began filing employment-discrimination lawsuits in the 1970s, but courts were reluctant to apply Title VII of the Civil Rights Act in their case. It was generally understood that in adding “sex” to Title VII, Congress intended to equalize the opportunities of women relative to men. (In fact, the addition was suggested by opponents of the act and was meant as a poison pill, but the strategy backfired.) As far as the courts were concerned, Title VII did not protect transsexuality as such, a status many at the time associated with sexual fetish or mental illness.

Over the next few decades, however, a number of federal court rulings established that discrimination “because of . . . sex” includes adverse treatment that results from sex-based “stereotypes,” for instance the belief that women are and ought to be by nature less assertive and thus unfit for managerial roles. The courts thus broached a potential legal pathway for transsexual plaintiffs: if they could persuade judges that their status as transsexuals was definitionally non-conforming to “stereotypes,” they could win under Title VII.

In an influential law review article from 2007, Ilona Turner, a freshly minted University of California-Berkeley law school graduate who would later become legal director of the Transgender Law Center, argued: “The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” This argument was already percolating up from the lower courts, where judges had used it to conclude that transgender women were really men who defied social expectations (“stereotypes”) of male appearance and behavior. What Turner’s article did was to persuade judges that they could and should ignore biological sex as the baseline against which “nonconformity” was to be understood.

Over the following decade, bureaucrats in the Department of Education and federal judges would cite the lower court Title VII rulings to claim that biological sex is itself a “stereotype”—something no such court had said until that point. That gave cover, during the Obama administration, to the Department of Education’s Office for Civil Rights to insist that in requiring schools to defer to students’ gender self-identification, it was not changing the law and thus did not have to go through the normal channels of administrative rulemaking. And it gave cover to judges to present their own edicts as mere application of “the law” rather than as politically charged policy interventions.

The problem with Turner’s argument is that most transgender people, and virtually all transgender plaintiffs in federal lawsuits, are anything but gender-nonconforming. It would have been more accurate for Turner to write that what defines transgender people is the fact that they do not conform to stereotypes associated with their sex but conform with gusto to stereotypes associated with the opposite sex. As clinicians and researchers who study gender dysphoria in youth have noted, most kids who show up at gender clinics nowadays are teenage girls who have internalized stereotypes about femininity, feel they cannot live up to them, and seek to escape them by appearing and behaving like stereotypical boys. Feminists and gay rights activists have long argued that transgenderism (in this understanding—for there is another one) represents a deepening of patriarchal norms and an excessive policing of gender boundaries. The DSM-5 itself lists desire to conform to stereotypes of the opposite sex as part of the diagnostic criteria for youth gender dysphoria. Since the mental health professions seem to care more about alleviating subjective distress in individuals than about changing societal understandings of human nature and sexuality, the conscience of a progressive therapist need not be disturbed at the suggestion that she is “affirming” a teenage girl in her obsessive conformity.

In short, a legalism whose original purpose was to bypass judicial caution in applying civil rights law and judicial respect for the democratic process has taken on a life of its own. There is now an entire DEI industry promoting the view that transgenderism is a subset of the broader category “gender nonconforming people.” This framing may be useful in litigation and in helping DEI racketeers secure lucrative consulting contracts, but it fundamentally misunderstands the sources of gender-incongruent behavior in minors and very likely fuels the pediatric gender transition industry. Those who believe that politics is downstream from culture would be wise to heed this as an example of how institutional realities and incentives—in this case, getting judges to believe that they are not legislating from the bench—can also shape culture.

In Eknes-Tucker, Judge Burke uses a Turneresque anti-stereotyping interpretation of “sex” to argue that the Alabama law contains a sex-based classification and is as such subject to heightened scrutiny. This is a crucial assumption, because without it he would likely have to use a “rational basis” standard of review and concede that whether Alabama’s law makes medical sense is a complicated policy question beyond the purview of the court. In short, he would have to admit that it is not primarily a legal question.

To be fair to Liles Burke, he is a district court judge in a circuit that handed down Glenn v. Brumby in 2011. The plaintiff in that case was a male government employee who identified as female, and the court in Brumby agreed to use the Fourteenth Amendment’s equal protection funneled through a “gender nonconformity” theory of transgenderism. But here again, the legal mind’s tendency toward abstraction got in the way of discerning the regulatory consequences of reasoning by analogy. In Brumby as in other employment cases, whether the plaintiff really was female was largely insignificant; the court could just as easily have explained, as other courts had in the past, that the plaintiff was a male who did not conform to male appearance and behavior and reach the same result. In contrast, the question of whether “transgender kids” really are the sex they claim to be is of central importance to medical practice and ethics.

Burke is bound by his institution in other ways, too. Unlike lawmakers and bureaucrats, when judges enter the policy process, they do so in response to plaintiffs bringing suit over some alleged violation of rights in the past. Even when legal adjudication has policy consequences that reach beyond the parties to a lawsuit, judges are required to issue edicts in response to concrete “cases and controversies,” taking the unique circumstances of the plaintiff and defendant into account. In the Title IX bathroom lawsuits, for example, judges agreed with transgender plaintiffs that the privacy argument made by school districts in support of separating students by anatomical sex was “based on sheer conjecture and abstraction” because the schools had not been able to submit any evidence of privacy violations that occurred and were reported. There was a perfectly good reason that they were not on the record: no student or parent wants to go on the record for expressing discomfort with having to share a restroom with members of the opposite sex. Alternatively, students may not have wanted to offend their transgender peers by confronting them.

In any policy decision-making context but the judicial, these considerations about the likely consequences of new policies would have to be considered. (Imagine a school principal saying: from now on, we are going to let students decide when to end class, and we’re not concerned about sagging academic standards because we have no evidence that standards have ever gone down as a result of policies such as what we’re proposing.) In backward-looking adjudication, such probabilistic reasoning counts for little or nothing.

The fact that judicial decrees are tethered to the circumstances of the parties is relevant in yet another respect: petitioners face strong incentives to present to judges not a fair and comprehensive analysis of the broader social realities in which their case arises, but a carefully curated version of that reality that is likely to produce victory in court. In other words, there is no guarantee that judges will see representative cases of the broader social problem, and to some extent the opposite is true. In lawsuits filed by transgender activist groups against state laws that require athletic participation based on biological sex, judges have been shown plaintiff-athletes who are either female-to-male (in which case their situation does not represent the unfairness of males competing against women), or who are male-to-female but not dominating their field of competition.

Every transgender plaintiff named in the Eknes-Tucker litigation began showing signs of distress before puberty, in one case even during toddlerhood. All went through a significant period of counselling from mental health professionals before making decisions about puberty blockers. Taken together, these two facts distinguish the plaintiffs from what appears to be the most common demographic showing up at gender clinics these days: teenage girls with no prior history of gender-related distress who are likely suffering from “rapid onset gender dysphoria” as a result of social contagion. It is, of course, not a coincidence that the “public interest” lawyers who represent the plaintiffs chose these particular individuals as useful vehicles for challenging the Vulnerable Child Compassion and Protection Act. They rightly calculated that if Judge Burke had to analyze the Alabama law through the lens of circumstances favorable to their side, he would find the law excessive. But the result is a judge making public policy on the basis of what are in reality exceptions to the rule.

It is entirely reasonable for the state of Alabama to pass a law designed to deal with what happens usually and for the most part. If that law happens to deprive a small minority of people from receiving services that may have proven beneficial (though in the case of pediatric transition, some observers dispute even this), an argument can be made that this is a reasonable price to pay, at least for now, to stop the far greater harm being done to a much larger group of teenagers. This kind of utilitarian calculus is essential to lawmaking but antithetical to “rights”-based legal adjudication. We ban 14-year-olds from driving even though some 14-year-olds would make better drivers than adults. Any judge presented with a competent 14-year-old driver as “proof” that the current law is unconstitutionally broad would rightly object that the law deals with statistically significant phenomena, not exceptions, and leave it standing.

One final example of how the judicial process itself distorts policymaking in the area of pediatric gender transition concerns the rules of evidence. Ensuring judicial neutrality toward parties to a lawsuit requires that responsibility for developing the factual record of the case fall on the litigating parties. Judges and juries may only consider evidence that conforms to formalistic rules, such as the hearsay rule, which states that hearsay is inadmissible. In transgender lawsuits, courts have relied on this rule to exclude research on the lack of evidence behind, and possible harms of, “gender affirming” care. Because the experts who testify in court about the contested basis of gender-affirming therapy lack personal knowledge of the transgender plaintiff, judges have said, their testimony carries no weight. Using this type of reasoning in academic discussions about the merits of gender-affirming therapy would strike us as odd, even absurd; in the context of a lawsuit, which is a litigant-controlled affair, it makes sense. In Eknes-Tucker, Judge Burke gave the testimony of James Cantor (author of the AAP fact-check) “very little weight” in his decision on the merits of pediatric transition because Cantor had no “personal experience” treating minors with gender dysphoria. That observation is true but, from a policy standpoint, irrelevant.

Courts are imperfect instruments for making sense of complex medical debates and resolving ongoing philosophical and scientific controversies. Judge Burke’s lack of appreciation for this fact is perhaps the most disappointing aspect of his opinion in Eknes-Tucker. This is not an argument for judicial inaction: at times judges must act to save republicanism from its own worst tendencies. When citizens feel they are being mistreated in egregious ways at the hands of government authorities, courts can be a crucial corrective tool. But it is hardly unreasonable to expect of judges a greater awareness of the underlying medical debates over pediatric transition and a sober understanding of the limits of their office.

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