UPDATE: A number of advocacy groups have sued to prevent the rule from going into effect, including the ACLU (American Civil Liberties Union) and Southampton Community Healthcare in St. Louis. The petition says “The Rule targets gender-affirming care with unprecedented and unique restrictions so onerous that it effectively prohibits the provision of this necessary, safe, and effective care for many, if not most, transgender people in Missouri.” The suit sought a stay on the order. After this blog post was written, St. Louis County Circuit Court Judge Ellen Ribaudo issued the stay of enforcement that would allow the court time to “review the briefing sufficiently.” Judge Ribaudo anticipated doing so by May 1. This changes the timeline on implementation. It does not change the substance of this blog entry.
I have been thinking more about Missouri Attorney General Andrew Bailey’s emergency order restricting access to gender affirming care. The order was scheduled to go into effect today, Thursday April 27 2023. While initially touted by Bailey as “protecting” kids, in fact it affects both minors and adults, and puts serious obstacles in the path of anyone seeking gender affirming care. Since Bailey made it clear adults will also be affected, he has been framing the emergency order as “protecting consumers” and supporting “informed consent” by making sure that “all patients” realize that these treatments are “experimental.” Bailey has in fact said, ““I am standing up to make sure that patients have the information they need to make informed health care decisions.” If this were true, medical ethicists would have to take note, and might even be manipulated into supporting such rules. However, it’s not. Experts from numerous medical associations have pushed back on the claim that these are experimental treatments, instead noting that they are considered standard of care with decades of evidence for effectiveness and are not experimental. And the St. Louis Department of Health has issued a statement condemning the order on these and further grounds (St. Louis is where most gender affirming care in Missouri, especially for trans youth, takes place). Other medical experts and health care institutions have noted that access to gender affirming care improves mental health for trans youth and adults, and reduces suicidality by as much as 73%, thus, making it harder to access gender affirming care is the opposite of protecting trans youth and trans adults. The order isn’t about informed consent, and it isn’t about protecting kids. Let’s explore this further.
Here are the criteria for accessing gender affirming care in the state of Missouri as of today, criteria that probably don’t affect people already receiving care but definitely affect trans youth and adults who are just establishing gender affirming care in Missouri. This handy summary of the criteria is taken from an article in the Springfield News-Leader by Susan Szuch:
- Assess at least annually whether the patient has gender dysphoria;
- Disclose a list of information potential negative side effects and information about gender dysphoria;
- Perform a full psychological/psychiatric assessment, including at least 15 hourly sessions over the span of at least 18 months, to identify whether the patient has any other mental health comorbidities;
- Treat and resolve existing mental health comorbidities;
- Track all adverse effects from any course of covered gender-affirming procedures for at least 15 years from the start of the intervention;
- Obtain and keep on file informed written consent;
- Ensure that the patient has a comprehensive screening to determine whether or not they have autism;
- Ensure at least annually that the patient’s gender identity is not the result of a “social contagion;”
- Ensure at least annually that minor patients are screened for “social media addiction or compulsion”
All of the criteria are quite troublesome in terms of putting in place nearly insurmountable barriers to accessing care. But the two that I want to single out are:
- that all other mental health conditions be not only treated but resolved before gender affirming care can begin, and
- that the person be assessed for social contagion and prove that their gender identity is not being influenced by others.
Note that many mental health conditions can never be declared “resolved”. Also, it is difficult to find effective treatments in terms of available providers who are taking patients. The National Alliance on Mental Illness (NAMI) issued a report called “The Doctor Is Out” finding that nearly half of all adults and children in the US with mental health conditions go without treatment for a variety of reasons including a fragmented system and lack of available providers. So, this criterion that mental health conditions must be BOTH “treated and resolved” may appear sensible, but it is in fact nearly insurmountable, and thus a serious obstruction to beneficial and non-experimental care. That obstruction is the point of this order and similar laws.
Now let’s turn to the social contagion assessment requirement. You’ll see colloquial references to this idea in the phrase “transgender is trending” or dismissing being transgender and pronouns as “trendy.” Folks who have been following trans medical ethics for the last decade or so will recognize that this is based on a concept that has become very popular in anti-trans rhetoric, namely the idea of rapid onset gender dysphoria (ROGD).
This concept resulted from a researcher doing interviews with the parents of transgender youth who said that their kid declared that they were transgender basically out of nowhere with the parent having no idea. The researcher who proposed ROGD took this as evidence that some trans youth were encountering ideas on the internet or in in-person social groups that rapidly convinced them, in authentically, that the youth was trans. However what’s often lost in considering the idea of rapid onset gender dysphoria is that it was an unusually biased study design. The parents who participated in the study were part of several social media groups, themselves–and here the irony should not escape us–that were composed largely of parents who were seriously concerned about the fact that their children had just revealed a trans identity, and many if not all of whom were conservative socially. One was the anti-trans British group called Transgender Trend; 3 of the 4 groups from which the study’s participants were drawn were explicitly anti-trans and only adult parents of trans youth were surveyed. Having these views would dramatically and predictably increase the likelihood that your kid would not tell you about feeling that they might be trans until they were 100% sure. So it would appear to be rapid onset when in fact it was not; it was just rapid revelation. ROGD gets its power from the idea that trans youth have, well, transient trans-ness: their trans identity isn’t long-term and is just a passing fad based on the current trends and social contagion via social media and in-person encounters with LGBTQ-supporting folks. This would seem to support banning access to permanent or semi-permanent gender affirming care. And yet, as Fenway Health noted on March 20 of 2023, subsequent studies have falsified major components of ROGD claims. This includes the claim that trans identity in adolescents is transient.
But there’s another aspect of the “social contagion assessment” requirement that we need to talk about, aside from its basis in a now-debunked badly-designed study: we do not require people who fit classical definitions of man or woman in terms of the sex gender binary to prove that they have not had their gender identity affected by society. There are two reasons for this, I think. One is that gender and gender norms in particular are a social thing, as well as a personal and individual thing. Another is that we are perfectly happy using social contagion–AKA peer influence–typically in our society to get girls to be girls and boys to be boys. This is how boys and girls learn gender roles, from division of household labor and disparate earnings beginning in childhood allowance and chore assignments, to the idea that little girls don’t play with Star Wars toys and that boys don’t have long hair or wear pink.
So, it’s a bit rich that the MO AG and others in anti-trans movements raise “social contagion” about gender as a problem for trans kids but not cis kids. After all, gender-conforming cisgender people don’t develop preferences for appearing and behaving in certain feminine and masculine ways in isolation. Those kinds of preferences shape cis folks’ choices about diet, exercise, plastic surgery, weight loss surgery, and other major body modifications that use medical technologies.
So, this criterion may appear sensible to some. Yet it’s nearly insurmountable for both cis and trans folks, and hypocritically applied only to trans folks. Obstruction focused narrowly on trans folks, that’s the point.
Basically, with respect again to both requirements, we don’t require cis people to resolve all of their mental health conditions before they can receive treatment for other conditions, and we don’t require cis people to prove that their gender identity is not the result of social contagion before we allow them to access other kinds of healthcare treatment related to their own gender such as, for instance, cosmetic surgeries that exaggerate sex characteristics (breast enhancement) or hormone replacement therapy for menopausal women. Here ends my short reflection on why these two requirements, in particular, are ridiculous and clearly obstructive rather than supportive.
You will hear the Missouri AG saying he is just supporting informed consent so that patients make good decisions. This is what philosophers call bullshit: a claim uttered to have a particular desired effect on the audience, by seomeone who isn’t particularly concerned with its truth. The idea of informed consent is ethically powerful. If that were what this is really about, we might have to take it seriously. But it’s not. And it’s dirty pool to frame the issue as though it’s about supporting informed consent. Watch out for this manipulation.
We don’t require these kinds of preconditions for other procedures, and these preconditions are nearly impossible to meet. Laws and orders like the Missouri Attorney General’s are obstructions. Not supports. It’s not about informed consent. And it’s not about protecting kids.
This is an excellent post, Alison!
Without contradicting anything you say here, I want to push back even more strongly on the two things you push back on:
1. On ‘resolving mental health conditions.’ You rightly point out that many mental health conditions are next to impossible to resolve, so this requirement seriously delays or blocks care. But I want to add: not having access to gender affirming care often CREATES mental health conditions, including serious depression, anxiety, dissociation, and trauma. You cannot ask people to resolve these mental health conditions without access to the very interventions that would resolve them, as a condition of getting these interventions!
Moreover this clause is both ableist and transphobic simultaneously. People with mental disabilities deserve the same gender-based rights as everyone else. People who want gender affirmation interventions are not especially mentally ill. The bill also precludes autistic people from getting interventions, which is openly ableist and horrifyingly paternalistic.
2. On the social contagion point: You rightly challenge the evidence that there is a special social contagion of transness, and she points out that no one minds that cis kids learn their gender norms through peers and social discipline; in fact society encourages this. I want to push this even farther. There is NOTHING INHERENTLY WRONG WITH SOCIAL CONTAGION. NOTHING. DO NOT BE FOOLED BY THE IDEOLOGICALLY LOADED WORD ‘CONTAGION.’ ‘Contagion’ just means that it can be passed along. That’s only bad if the thing passed on is bad! If kids are learning from their peers that it’s fine or even cool to build their gender identity and mode of self-expression outside the gender binary, and without regard for what bodies they happen to have, YAY.
Honestly, social contagion made me bi. All the cool kids in my Toronto middle school and high school in the 80s were bi, and it seemed way more fun and cooler, so I was into it, and by now, I am not capable of being any other way. I was not born bi. I am 100% down with admitting that this was social contagion. So what? Moving forward a few decades, would I have ever understood myself as nonbinary without the influence of a lot of very cool trans folks younger than me? Probably not. Was I ‘always nonbinary on the inside’? Honestly the concept didn’t even really exist for me; I have no idea what that would even mean. I am not like anything in particular ‘on the inside.” But now I am way happier by far, and feel way more at home in my body and self-expression. Yay for social contagion!
Despite right wing rhetoric, virtually no one is chopping off childrens’ body parts. An increasing number of adolescents want to pharmaceutically adjust their hormones so as to be happier with their bodies. That’s what’s at issue when it comes to gender affirming care for children. I don’t see this as any more monocle-popping than adolescents taking hormones to prevent pregnancy, so they can enjoy their bodies in other ways. The American Academy of Pediatrics supports giving children as young as 12 diet pills, for Christ’s sake. (This is worth a blog post of its own honestly!) No one should fall for any part of this bullsh*t moral panic.