Fighting for Gender Affirming Care

In the last couple of years, states have ramped up their attacks on the LGBTQ+ community, introducing laws surrounding sports, books, and even healthcare.  24 states have banned gender affirming care for youth, and many of those laws are now being discussed, debated, and decided in the courts as LGBTQ+ people, families, and advocacy groups file challenges to these laws. Medical bans on gender affirming care have been some of the most terrifying for families, and there have been a lot to try to keep track of. Today In the Den, Jen meets with ACLU strategist Gillian Branstetter about a very specific case, and what this case might mean for all the other cases.

Special Guest: Gillian Branstetter

Gillian Branstetter is a Communications Strategist at the ACLU’s Women’s Rights Project and LGBTQ & HIV Project. Formerly of the National Women’s Law Center and the National Center for Transgender Equality, she works with advocates, storytellers, reporters, and artists to fight for gender justice, including the safety and dignity of queer and transgender people.

Links from the Show:

• ACLU website: https://www.aclu.org/ 
• Find your local ACLU: https://www.aclu.org/affiliates 
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Transcript

JEN: Hello and welcome to In The Den with Mama Dragons. I’m your host, Jen. This podcast was created to walk and talk with you through the journey of raising happy, healthy, and productive LGBTQ humans. Thanks for listening. We’re glad you’re here.

In the last couple of years, states have ramped up their attacks on the LGBTQ+ community: Sports, books, and even healthcare. Twenty-four states have banned gender affirming care for youth. And many of those laws are now being discussed, debated, and decided in the courts as LGBTQ+ people, families, and advocacy groups file challenges to these laws. These medical bans have been some of the most terrifying for families. And there has been a lot to try to keep track of so we brought an absolute expert to talk to us today about these laws and a very specific case that’s upcoming and what this case might mean for all the others.

Gillian Branstetter is a Communications Strategist at the ACLU’s Women’s Rights Project and LGBTQ & HIV Project. Formerly of the National Women’s Law Center and the National Center for Transgender Equality, she works with advocates, storytellers, reporters, and artists to fight for gender justice, including the safety and dignity of queer and transgender people

Welcome, Gillian. We are so grateful to have you here today.

GILLIAN: It’s a pleasure to be here, Jen. Thank you so much.

JEN: We’re just going to try to sort through some of the chaos.

GILLIAN: We’re going to do our best, yes. And there’s certainly a lot of it.

JEN: Can you start us off at a very, very beginning level, for those who are just not aware of what’s happening? On a national level, what are we talking about when I say trans healthcare bans?

GILLIAN: Sure. So starting in 2020 and 2021, we saw the number of laws being proposed in state houses targeting the rights of LGBT people very broadly begin to spike year after year after year. And so in 2020 it was a few dozen bills. And then in 2021 it was a little over 100. All the way up to this year and last year where we saw over 500 bills doing things like limiting what bathrooms transgender people can use, censoring topics about LGBT people from schools, and most drastically, banning or criminalizing gender affirming medical care for transgender youth. The first of these bills to pass into law was in Arkansas in 2021. Since then, half the states in the country, 25 states, have passed similar laws banning any transgender person who’s under 18 from accessing gender affirming hormone therapies, puberty blockers, or surgical care. Some of these laws have different enforcement mechanisms. Some of them threaten doctors with discontinuing their medical license, with making it easier to sue them which boosts their malpractice insurance so it makes it unaffordable to provide this care. All the way up to a few of these laws which threaten prison time for medical providers who work with transgender youth. This has been a really monumental sea-change in access to this care. Now over 100,000 transgender youth live in a state that has banned access to their healthcare. And it’s had chilling effects even in states that haven’t banned access where it’s made doctors wary because they’re afraid of a future state house or a future state attorney general targeting them for providing access to this care. As I’m sure listeners of this show know, this medical care was not really all that controversial within the medical field before these laws started being passed and transgender youth have been encountered by psychologists and pediatricians for decades and decades before this. So, to practically overnight in legal terms, in just two or three years, have such a wide swath of the country shut down access to it, has been terrifying and detrimental. It has been also infuriating. We at the ACLU have been working with lots of families across the country to challenge these laws in court. I can go into a bit more detail on two, the exact legal arguments that we’re putting forward when we are challenging these laws. While we have had some success in challenging these laws in the lower courts, especially in the last year, as we reach the appeals court – that’s the level right below the Supreme Court – we’ve unfortunately seen a number of these judges ignore the evidence in support of this care, ignore the concerns of families with transgender youth, ignore the concerns of doctors and unfortunately allow them to go into effect, often citing the Supreme Court's opinion in Dobbs, overturning Roe V. Wade and the federal right to abortion access. So starting last year, we filed what’s called a cert petition to the Supreme Court asking them to review one of these decisions. And specifically this was in our challenge against Tennessee’s law banning gender affirming hormone therapy for transgender youth. We filed this lawsuit on behalf of one medical provider and one family. The Williams family has a 15-year-old transgender daughter. And in June of this year, the Supreme Court agreed to hear our challenge against this ruling. And they will hear arguments where we, the US Government, the Solicitor General from the Department of Justice will argue against this law and the state of Tennessee will argue in defense of this law. The Supreme Court will hear those arguments likely in December and then we are looking at a potential ruling in late spring, early summer, likely June of 2025. We are very confident in our legal arguments. We are very confident in our ability to hold the court to its modern precedent and strike down these laws. That said, obviously, it’s enormously daunting. We know it’s been stressful and heartbreaking and devastating for families across the country. We take this enormously seriously. And I wake up every day thinking of how we can maintain and earn the trust of families like those listening to this podcast because we’ve been, one, so thankful for the trust they put in us in sharing their stories and their experiences, families who have signed on the lawsuits signed on to amicus briefs, who’ve spoken in the media, who’ve shown up in state houses. This is all such critical work and work that’s being taken on by a lot of people who are not like me, who are not professional advocates, who are not lobbyists, who are not attorneys, but who are nonetheless so dedicated to preserving the freedom of their transgender youth.

JEN: When the Supreme Court rules and we hear next spring on this Tennessee case, what can we expect impact-wise for that to have on other states with similar legislation, whether they uphold the law or overturn it?

GILLIAN: Well, right now, most of these laws have already been allowed to go into effect. So the worst-case scenario, if the court just rejects our arguments outright, is not much changes. We have some challenges in state court that that is separate from. So when you challenge a law in federal courts beholden to the Supreme Court. But when you challenge a law in state court, you’re usually challenging it under the state constitution. So, for example, we’re doing that in Montana where we’ve blocked enforcement of that law, and in Ohio which, unfortunately a lower court already allowed the law to go into effect and we’re appealing and expect a block in enforcement of it again shortly here. That’s just happening this week. But, broadly speaking, most of these laws have already been allowed to go into effect. So the worst-case scenario is that nothing changes which is why we’ve gone to the Supreme Court. There are a few different ways that we could win. There are narrower wins that would basically set a higher standard that the states have to prove in order to enforce the bans of these laws. And here’s where not being a lawyer myself, my knowledge can run a little dry. But it’s, I call the difference between rational scrutiny and heightened scrutiny. And it’s basically about the bar that a state has to meet to enact a law that is on its face discriminatory because these laws ban things like estrogen or testosterone or puberty blockers for transgender youth. But specifically exempt them when they’re provided when they’re provided to cisgender youth such that a cisgender teenage boy who may have a developmental sexual difference or a hormonal disorder, an endocrinal disorder, he can readily be prescribed testosterone shots by his doctors under these laws while a young transgender boy with gender dysphoria cannot be prescribed the very same medications under these laws. We are challenging that as sex discrimination, as discrimination against these young people on the basis of their sex. And therefore, in violation of the equal protection clause of the 14th Amendment of the US Constitution, we’re arguing to the court that these laws should have to meet heightened scrutiny which is the much higher bar for justification. And we are very confident that these states cannot meet that bar. In fact, the rulings that have allowed these laws to go into effect, all use that lower standard, that rational scrutiny. If the court simply rules that we get that heightened scrutiny, that higher bar, then what happens is we go back to the courts in those states and we challenge those laws again with this brand-new tool, this brand new shield that we have. and we think we’ll be quite successful in doing so. A full win, our wildest dreams, the most optimistic scenario, is that The Court not only gives us that higher standard but also rules that these laws don’t meet that standard. That saves us time because it would effectively overturn these laws everywhere that they’ve been passed. And obviously, that would not stop a lot of these politicians who are very dedicated to ruining trans people’s lives, to controlling our families, our lives, and our bodies. But, nonetheless, it would be an enormous victory. So we are certainly hoping for the best, but preparing for the worst. But in reality, like I said, the worst is what’s happening all across the country right now, as I know many listeners are already, likely, very familiar with.

JEN: So best case scenario, in my most hopeful dream world, by the time this case finishes, the law in Idaho, we don’t even have to worry about what happens in court because it’s just gone.

GILLIAN: Right. And Idaho’s law is a perfect example in that it incurs criminal penalties for medical providers.

JEN: Yeah.

GILLIAN: We did challenge, we had challenged that law in federal court and we have a major hearing on that coming up actually later this month where we are asking to return the expanded injunction against the law. And an injunction – for non-lawyers in the audience – that’s simply when a judge blocks enforcement of a law or blocks government action from taking place. So when we win an injunction, a state-wide injunction against the law, that blocks the law from taking effect across the entire state. In Idaho, we had initially won an injunction that blocked enforcement across the state. The Supreme Court narrowed that injunction to just our clients. We’re representing two families with transgender adolescents in the state. And I wouldn’t read too much into that action by the court because that is pretty limited to a very technical legal issue about the scope of injunctions as they’re issued by these courts. It is not related, to my understanding, to the merits of law, to its constitutionality. It was simply the state asking this more technical narrow question. But what that means, of course, is that across the state of Idaho, with the exception of our clients, it’s, I’m sure, a very difficult to maintain access to this care and I’m sure lots of people are looking at out-of-state options and others. And, again, the goal we’re pursuing is to not only meet that heightened standard but to have the court make clear that a law like Idaho’s does not meet that heightened standard of scrutiny and should be thrown out strictly because it criminalized care for transgender youth that it readily makes available for youth who are not transgender. And that is clearly discrimination. In fact, the state doesn’t even really challenge that it’s discrimination. It’s merely about how far the state should have to go to prove their ability to discriminate, to prove their right under the constitution to discriminate.

JEN: So I’m going to slow us down a teeny bit and go into the roots of all of it. Because, obviously, there’s a ton of variety, like you mentioned, between the laws in different states whether it’s how they enforce it or punish it or who they’re targeting specifically. But they all have a lot of similarities. You can hear even as you read the bills, very similar language threaded through all of them. I’d like you to talk about that if you can and also it feels important to note the difference between the way that it’s labeled. For example, one of the things that seems the most urgent for families that I am aware of are these hormonal treatment bans, seems to be the most urgent thing that they’re grappling with. Where, as we’re hearing it debated in the legislature across the country, they talk only about genital surgeries. But the laws themselves, the part that seems to matter to these families, primarily, is the hormonal treatment. Can you talk about these shared roots and the language and the difference between these types of things?

GILLIAN: I’ll start with sort of the origins of the laws and similarities and I do want to come back to that surgical point because I think it is important. Like I said, these laws were passed in really rapid succession over the last few years. And they all have pretty identical language. The legal challenges have also hit very similar notes. The model upon which these laws are based was drafted by an organization called The Alliance Defending Freedom. This is a far-right legal organization, who, for example, led the legal strategy to overturn Roe V Wade, who supports the recriminalization of same-sex relations, and have altered far more anti-trans laws, anti-LGBTQ laws across the country. They’re curiously providing free representation to the state of Idaho right now in their defense of both their anti-trans health care ban and their anti-trans athletics ban. And they really started encouraging states to pass these laws after we defeated them at the Supreme Court in 2020 in a case called Bostock V. Clayton County. And we represented a transgender woman named Amy Stevens who is from Michigan who had come out as transgender in her 50s after working for decades at a Michigan funeral home. And shortly after she came out, she was fired. What was at issue in the case was not whether she was discriminated against because she was transgender. The funeral home, her employer, readily admitted that they fired her strictly because she was transgender. What was at issue in the case was whether that discrimination was sex discrimination, which will sound familiar from me just a few minutes ago, under Title Seven of the 1964 Civil Rights Act which prohibits sex discrimination in employment. Since the law was passed back in 1964, what constitutes sex discrimination has been broadened by the federal courts including the Supreme Court. So before where it might’ve been you needed to have been fired strictly because you were a woman, and they only wanted men to have this job, it slowly started to extend to things like dress codes at certain workplaces, right? Think of the ways that flight attendants were dressing in the 1960s right? Those were challenged under sex discrimination laws. It started to include things like sexual harassment. It started to include things like pregnancy discrimination. It started to include what’s called sex stereotyping, so can an employer judge you for not presenting femininely enough at work, for not wearing enough makeup, that sort of thing. And over the last few decades, a lot of federal courts began to also recognize that discriminating against somebody on the basis of their sexual orientation or their gender identity was also sex discrimination which makes a bit of common sense to it. Where, if you would fire a transgender woman like Amy Stevens because she wants to wear a dress and go by a woman’s name at work, but you wouldn’t do the same to a cisgender woman, you are making a determination against that person on the basis of their sex, on the basis of their physical characteristics which is prohibited under the law. The Alliance Defending Freedom, who’s authored some of these anti-trans bills, they argued on the opposite side. They said this was not sex discrimination and they wanted to narrow the reach of this law. We defeated them at the Supreme Court with a six-three majority in 2020. And so you’ll remember that was basically this same Supreme Court with the exception of Ruth Bader Ginsburg’s passing, Justice Ginsburg’s passing and Amy Coney Barrett’s nomination and the retirement of Justice Souter and the nomination of Justice Jackson. So ideologically the court is one more conservative. But even then, that’s why we’re hopeful and optimistic and taking this challenge to the court against these health care bans because really all we need them to do is endorse the same logic that they endorsed in 2020, just four years ago. So, after that decision came down from the court in 2020, this was created as an apocalyptic event in the conservative legal movement that if transgender people had the freedom to be ourselves in public, in the workplace, right – then this was viewed as detrimental to their goals. But their actual goals are legislating these very rigid, almost Biblical gender norms into the law. And that’s what fuels their abortion bans and so much of their advocacy. This decision, Josh Hawley – whose wife works at the Alliance Defending Freedom, and he’s a Senator out of Missouri – referred to that 2020 decision in Bostock as “The end of the conservative legal movement.” Because that’s how threatened they are by trans people’s existence in public life. And it’s really after that decision that we begin to see the number and the extremity of anti-trans laws – which again are being authored by the ADF – introduced in state houses, including in Idaho, begin to spike. In fact, in Idaho where they passed the first trans athletes ban, one of the first new laws from changing the gender markers on our IDs and things like that. So a lot of these laws are designed to try and limit the scope of that 2020 Supreme Court precedent. And in our petition to the court and in the arguments that we’re going to have at the court this coming fall and winter, we are asking the court to recognize its modern precedent – again, just four years ago – and apply the same logic against these laws. And, at the very least, grant us that heightened scrutiny.

JEN: So, I appreciate all of that. That was fascinating to me. Can we touch on also the difference between the way we’re talking about genital surgery but the laws are actually primarily targeting the hormone therapy? Or that seems to be the bigger impact.

GILLIAN: They’ll occasionally use different phrasing, but they’ll ban a broad range of health care treatments that we often refer to under an umbrella term of gender affirming care. But they include things like puberty blockers, GNRHs, hormone therapies. So estrogen, testosterone, hormone blockers. And yes, they ban surgical care for any trans person under the age of 18. When I’m talking to folks who have zero familiarity with this health care, I often encourage them to, first-off, understand that access to these treatments is heavily indicated by what age the patient actually is. So if a young trans person who is in elementary school is expressing a lot of distressed living as the gender they were assigned at birth and is expressing a strong desire to change how they express their gender, we’re not really talking about any medical care per se. It’s mostly things like a new haircut, going by a different name and pronouns, dressing differently. I’ve met lots of families who’ll slowly allow their young person to dress, present one way at home and then begin to dress and present that way at school. When a young trans person then enters middle school, then they might have access to what are called puberty blockers. And doctors often describe these as functionally, a pause button. That these are designed to not just prevent the permanent and life-altering effects of a puberty which might cause these young people a lot of great distress, but also provide them and their family more time to make sure that this is the right course of action for this individual's short and long-term well being. And I emphasize this individual’s because the way it often gets talked about in state houses, you would think that we’re boxing these kids up and putting them on the conveyor belt and they’re all getting treated the same. But anyone who’s gone through this care knows that it is very much about what is in the best short and long-term interest of the young person that is right in front of us right now.

JEN: Exactly.

GILLIAN: That is deeply individualized and of course itis accompanied with mental health counseling and making sure that they have a full base of support, not just limited to medical care but making sure that they have the support of their family, that they’re going to a supportive school environment, things like that. When the same young person might enter high school, they might have access to hormone replacement therapy. So that includes estrogen which would have feminizing effects on the body, or testosterone. And really, what this is meant to do is simulate the puberty that they might otherwise have received if they were born as the gender that they identify with. Access to surgical care is enormously rare for really any trans person, period – but especially young trans people. And that is part of the misnomer which is that I’ve talked with trans people who are having to push their Go Fund Me’s on line, who are fighting to get the letter of recommendation from their counselor and things like that. Who are trying to get, just an assessment appointment for surgery. And these are trans people in their 30s, in their 40s right? So the idea that anyone’s rushing off a 16-year-old to get top surgery is laughable. However, for some young trans people, that might be the best course of action. And for the young people I’ve met who have access to these, it’s usually somebody who’s been presenting as this gender for ten years, may have come out when they were four, five, or six years old. And before they turn 18, what it helps them to do is also go through the surgery and recover before they go off to college. Because, again, this health care really serves as the foundation for the lives that they lead. When I say it’s rare, I mean that there are hundreds of thousands of transgender youth in the country and, according to this report that Reuters said where they sort of looked at insurance data and healthcare claims and access to the care, in the last five years, 700 people accessed surgery across the entire country. So that suggests that, contrary to the way that is often being talked about in state houses, this is very methodical and very cautious care that’s being provided to these young people. It also suggests that, while these surgeries play an outsized role in the conversation about the bans on this care, the largest impact that it’s having has been shutting down those other treatments, to hormone therapy, to puberty blockers. And those are the ones that are far more often prescribed. For young trans people, those are the ones that, again, sort of foundation the lives that they lead that we know relieve great distress that they may be experiencing related to their gender and that also come with regular upkeep – if that makes sense. So making sure that, I think it’s traditionally, that you are not just going through psychological counseling and going through assessments, but that you’re after starting this therapy, then checking in with the doctor every three months and making sure that it’s having no detrimental impacts, that it’s being managed appropriately, that your hormone levels are normal for someone your age. And for a lot of families who live in states that have now banned this care, that means that every three months, they’re then having to travel out-of-state, if they can at all, in order to make sure they can maintain access to this care. All the while, the politicians who have banned this care are focusing on sort of these more edge-case scenarios. I think a good comparison is in how a lot of these same politicians will talk about access to abortion. We know that the vast majority of abortions are performed within the first trimester of a pregnancy. And especially in the first two trimesters of a pregnancy. But if you listen to them talk when they’re cornered on the impact these abortion bans are having, especially now that many voters are awakening to the extremity of these bans since the Supreme Court’s opinion in Dodds, they will shout their heads off about late-term abortions, so abortions into the third trimester. Anyone who has spoken with abortion providers, or with OB-GYNs or who themselves has had to go through one of these decisions knows that it’s enormously difficult, that it’s usually after a severe complication related to the pregnancy and that it’s not a decision anyone is taking lightly. And I think by focusing on these fringe cases, they’re hoping to soften the politics that they may face for supporting a ban like this. In regards to gender affirming care, the reason I think those talking points have found more ground is because more people lack any familiarity of access to this care. I was just speaking a few weeks ago with a father in Ohio who says that he listens to right-wing radio, to talk radio, and he was amazed at just how day and night it was between the reality of – his transgender daughter is 12 years old and is getting ready to go on puberty blockers – and how it was being talked about in right-wing media that they were portraying a completely different world than the one that they were encountering as a family with a transgender young person and that’s been one of the most frustrating things because it’s also how politicians are talking about this.

JEN: It’s so fascinating, the contradiction. It seems so blatantly unfair that if I wanted to take my cisgender daughter at age 17 for some sort of breast augmentation or a nose job, nobody’s upset about it, legally upset about it. But if I want to take my transgender daughter for any of those same things at 16 or 17, there’s a huge outcry, this backlash. Even though the same things for cisgender kids are happening at much higher rates. It makes me sort of crazy.

GILLIAN: Well, many young woman, for example, may be prescribed estrogen. And, again, through something related to a thyroid disorder or a endocrine disorder. And the estrogen that I take every morning as a transgender woman is not any different than the estrogen that many of your listeners might take as cisgender women who may be perimenopausal or going through their own hormone therapy. It’s the exact same Estradiol. The Progesterone that many transgender woman take depending on what’s right for them – because again, this is very individualized care – is no different than the progesterone that’s contained in a lot of birth control medications. The politicians banning this care are very intent to portray it as this very alien, extreme, experimental form of health care. But really, the vast majority of the time that these exact same treatments are being prescribed by doctors, they’re being prescribed to cisgender young people to affirm the gender they were assigned at birth. Because, ultimately, what these politicians are opposed to isn’t the treatments themselves, it’s the lives that they help us lead, lives that are in defiance of the gender that we were assigned at birth and in defiance of a very rigid patriarchal understanding of how gender works in the world.

JEN: We’re watching right now a lot of our beloved friends find ways to relocate their families, leave their homes. They’re either budgeting large amounts to travel these ridiculous distances to get care. I know some states have to travel further. But as families move, I have to admit, I feel a little bit of hope for them. I’m happy that they’re finding safe places to live. But my heart hurts because we’re creating a nation full of medical refugees. In addition to like this moving and stuff, can you talk about some of the impacts that these bans appear to be having on individuals and families?

GILLIAN: Well, I have met lots of families who have relocated. I think the way it often gets talked about in the news media tends to downplay just how extreme a step that is. I’ve met families who are now faced with, since these bans have been allowed to go into effect, who are now faced with leaving perhaps the only home their children have ever known, maybe the only home they’ve ever known. And what that means is finding new housing, finding new schools, finding new jobs. That may mean finding new caregiving arrangements if you have family members who are disabled or who are older. And this is an enormously expensive step to take. And what boggles my mind is that anyone could possibly believe that the families who are uprooting their entire lives are doing so in pursuit of health care that is anything short of essential for their child’s well being. And I think that anyone who’s listening to this who doesn’t have a transgender young person in their family who might not recognize the importance, I think it’s worth asking yourself, what would force you to uproot your entire family and try to build a whole new life in a place you may have never even been before, because that’s how important this health care is to these families and their young people. What really frightens me, however, is that the people who are able to relocate or who are able to travel to access care, as burdensome and as awful as that is, that’s also the best-case scenario. The worst-case scenario is that these young people are having ripped away from them health care that may have given them an entirely new life, that has allowed them to build stronger relationships with their parents, to build stronger friendships at school, to do better at school, to focus on not just who they are but who they’re growing into. A common thing that I hear from parents of transgender youth is that when they were dysphoric, when they were denied this care, when they were in the closet, they were depressed and they were anxious and they were isolated and they were socially introverted and clearly didn’t feel comfortable in their own skin. But were also not really thinking about the future for themselves. And especially as young people from an adolescence you want them to start thinking about who they want to be, what is it that they want to do with themselves, what kind of life do they want to build for themselves. And after young people have access to this care, they begin to finally be able to imagine a future with them in it. They begin to ask what ambitions do they want to pursue, what dreams do they have that they want to fulfill, what problems does the world have that they want to help solve. That’s the kind of drive, that’s the kind of feeling of possibility that I think any parent wants for their young person. And the idea that these states would rip that away from them by denying them this health care while simultaneously a lot of these young people would then be left with the physical impacts of a puberty that they, their family, and their doctors knows is not right for them, knows is going to cause them great distress. And those physical impacts may stay with them across their entire lives. They may require even more intensive medical care later on. I think that’s something that comes to mind when people ask, “Well, why can’t they just wait until they’re 18?” Because their bodies won’t wait until they are 18. And it’s a bit like asking why a teenager might need to go on birth control before they turn 18. And it’s like, “Well, because their bodies are not going to wait until they're 18.” My heart breaks because I’ve met some of these families who are then trying to conceive, how do I explain this? How do I explain to my kid that they’re going to go through these really permanent lasting changes that we know aren’t right for them, that they know aren’t right for them, that their doctors know aren't right for them all because of politicians who are openly lying about this healthcare in the first place. And that’s why we’re at the Supreme Court. We are not going to spare any expense in fighting for the future that these young people deserve.

JEN: It makes me so teary to hear you talk about that because that resonates so closely with our experience when they can’t access care, just watching a kid in your home, just stare into space and dissociate from life, all of their energy just going to surviving for a couple more minutes because the discomfort is so intense. And then seeing that change for them as they are able to access the medicine that they need – sorry. I don’t mean to be emotional – and seeing them come back to life and understanding why these parents are doing what they need to do. Basically, we talk about trying to keep kids alive, but it’s not just suicide. It’s actually being able to live a life. So thank you for all of that. That resonated very closely with our experience. If the court allows this law to be upheld in contradiction to best medical practices in Tennessee, this law, if it stands next spring, does that have potential impact for other legislation affecting trans people like the bathroom bans or the sports bans or the weird library rules? Or even health care in general, like as a cisgender woman, does it have potential impacts for me?

GILLIAN: So, yes. And here’s where my limitations as a non-lawyer might come in. But if you think back to the difference in the standards that the states have to meet in order to justify discrimination. I talked about heightened scrutiny versus rational scrutiny. If the court rules that they get rational scrutiny which means the state has a lower bar to meet, and these laws can very likely then stay in effect. It also makes it easier for them to discriminate not just against transgender people, but on the basis of sex more broadly in the law. And, in fact, this was an issue at the heart of the Supreme Court’s decision in Dobbs because you could certainly argue, and we have certainly argued, that abortion bans are discrimination on the basis of sex. And we would certainly argue that, say contraception bans, or limitations on access to contraception would represent discrimination on the basis of sex. If they lower the standard that states have to meet, then yeah, the implications are pretty dire beyond just trans people’s access to health care or even trans people’s rights more broadly. We would work very hard to limit its scope. But we also know that groups like the Alliance Defending Freedom and a lot of these far-right legal groups and a lot of these far-right legislators would feel it was a new tool for legislating very strict gender roles overall into the law. Back in 2021, I was working at the National Women’s Law Center. And one of the portfolios I worked on while I was there was the income security and childcare portfolio. Which, at the height of the pandemic, was a very busy portfolio as likely everyone will remember. And one of the relief packages that the federal government had passed included these billions of dollars in relief for child care providers. And the idea being that child care providers were largely shut down across the first year of the pandemic. And if you know anything about child care as a business, they run on these very thin margins so the federal government needed to get them money to make sure they could stay open and that people could have access to affordable child care and enable them to work and including long after the lockdowns ended. And the state legislature in Idaho voted to reject this money from the federal government and the state legislator who led that push, and I’m blanking on his name right now, said that they were opposed to anything that made it easier for women to leave the home and pursue work. That is the same ideology that is fueling attacks on trans people, in that what holds up that perspective, this very misogynistic patriarchal perspective is a very rigid understanding of not just who gets to be a man or a woman, but what men and women are for. And in order to uphold that ideology, these words “man” and “woman” and the labor that’s associated with them, the appearances and the aesthetics that’s associated with them, the stereotypes that are associated with them, that all needs to appear innate, biological, and immovable. Trans people, by the fact of our very existence, defy that mythology. That if trans people are able to lead meaningful, fulfilling lives – especially transgender youth – that challenges the assumptions of their entire world view that says that everyone with an “M” on their birth certificate should be a dominant bread winner and everyone with an “F” on their birth certificate should be a submissive care giver. Folks may have heard like, read or heard “Trad Wives and… [inaudible] and things like that. So I think it’s really important to see these attacks on trans people, our autonomy, our healthcare, as deeply intertwined with everyone’s freedom to defy these norms or to assume these norms as they’d like. I think it is often a misnomer, especially when it comes to trans athletes and things like that, where they’ll say, “Well, we must protect women.” While then, in the same breath, saying that they want to force these women to give birth. So I think there’s a lot of opportunity in solidarity that even people who do not themselves do not have transgender youth or are not themselves transgender, that they understand that their rights are implicated in these fights as well, not just on those ideological grounds, but also on those legal grounds, also in terms of how these court precedents are like rungs on a ladder in terms of how they’re trying to build their way towards these extremely strict and rigid gender norms.

JEN: I appreciate that. You’ve been super clear with your disclaimers that you’re not a lawyer, you’re not a medical provider or a mental health provider, but I’d like to rapid fire some of the common misinformation and disinformation arguments that we hear regularly and how you speak to or dispel some of this disinformation. And I want to be super clear that these are not my opinions. I apologize in advance if my phrasing hurts anyone who’s listening. That’s obviously not my intention. I just want us to be prepared to stand up for our friends and our loved ones as this national conversation continues. Is that okay?

GILLIAN: Sure. Absolutely.

JEN: All right. Let’s start with this one. “These laws are just designed to slow things down to protect children and or families that are being rushed and pushed into transitioning.”

GILLIAN: Well, I think any trans person or parent of a trans person who’s actually asked this [inaudible] would actually recognize how laughable that is. That medical providers across the country, even in states that haven’t banned this care, have extensive wait lists, have rigorous assessment periods that most patients need to meet. And I think for trans people ourselves, we are not immune to the gravity of these decisions about our bodies. We do take these things very seriously. We are thoughtful and methodical. It is not easy to be a trans person by any measure. It should be easy, right? It should be something that is at least protected if not celebrated. But the idea that anyone is being pushed or shoved off toward transition is just laughable. I like reminding people that if you’re over 30 in this country, you were raised to hate trans people, to find us laughable, to find us disgusting. And that’s true. Not just sort of the dregs of pop culture, like, Jerry Springer and daytime TV in the 90’s that I grew up with, but in award winning movies and TV shows, right? And certainly in news coverage up until pretty much this past decade. And I say all that, not to shame people, because I’m over 30. Except the person that I was being raised to hate was myself. And I know very intimately the harm that living in such an environment has on a young trans person and the messages that they may be taking in about themselves and they don’t even realize that they’re applying it to themselves. And that is very still active in the culture. It’s not as active as it used to be. But it’s also active in our communities, in our schools, and sometimes in our own families. So the idea that this is all moving too fast, I think, is upsettingly laughable for lots of trans people and families who are encountering not just all the barriers and assessments and gatekeeping that we encounter in accessing health care, but in the culture that we live in where being transgender is very much still stigmatized, where trans people are still more likely to live in poverty, more likely to be homeless, more likely to experience violence. And furthermore, the idea that these bans are just telling people to slow down is also laughable because they’re not saying take your time to make a choice, they’re saying, “Well, we hear you that you as this young person’s parents and their medical providers think you know what the right choice is. But I, a state legislator who’s never met you or perhaps even anyone like you, think I know better what’s in your interest. I know how to raise your child better than you do. And I’m going to make the decision for you.” It’s not hitting pause at all. It may very well be withholding this care needlessly and baselessly from young people who may be in very dire straits, who very well might need this care immediately.

JEN: This one’s kind of going to be multiple phrasings but they all kind of speak to the same idea that we’re hearing. “This type of care is just too risky. It’s all experimental. What if they regret it when they’re older?  Isn’t it all just a trend? I keep hearing all these people sharing their detransition stories of regret.” What do you say to that kind of argument?

GILLIAN: Well, first off, transition regret is phenomenally rare. I’ve never seen an estimate of it that is outside the single digits in terms of who’s accessed this care. And it’s certainly rare when compared to pretty much any other medical procedure including things like knee surgeries, medical implants, things like this, that are not being banned that are far more readily available and some of these. Second to the idea that this is a trend, as I just stated, life is still quite hard for young trans people. And two, that suggests that this is all very new and that we don’t know what these treatments are or what long-term impacts are as you and I talked about a bit ago. All of these health care treatments have been around for more than a century. When I think of synthetic hormones, puberty blockers, things like that. They are readily made available to youth who are not transgender. And these laws only ban them for youth who are transgender. But importantly, there is also a very long – century-long record – in the medical field that counters the transgender youth, when a young person was defying their gender assignment in the 1940s or 50s, that could result in institutionalization. It could result in hospitalization. It could result in being subjected to really violent forms of conversion therapy, everything from electroshock, to sleep deprivation, to induced vomiting. There are some really good books I would recommend. Jules Gill-Petersen’s Histories of the Transgender Child, came out a few years ago. And then a newer one that just came out this year called In The Shadow of Diagnosis. And it really wasn’t until the 60’s and 70’s that more medical providers began suggesting what’s called the affirming model for helping transgender people at large, not just transgender youth. Then, it was seen as almost a last resort. So, if they could not cure these people of being trans and really they weren’t drawing much of a distinction between transpeople and LGB people at the time. If they could not cure us of being trans, then well, finally we’ll just grant them the autonomy that they’re asking for. We’ll grant them the health care that they’re asking for. And over time, the medical field began to understand that they were bringing their own bigotries and their own assumptions to that conversation. That they weren’t asking themselves “How can I support this person and enable their short and long-term well-being.” They were asking themselves “How can I force this person into a heterosexual, cisgender life because that is my definition of health?” There are some medical providers that still operate under those assumptions. And those are the ones that will show up in right-wing media. Those are the handful that are getting flown from state to state to talk in courthouses. I keep thinking of Idaho, there was this incredible op-ed I remember after Idaho’s law took effect of pediatricians who live and work in Idaho pointing out – like it was an open letter to transgender youth – saying that “We work with you. We work with your families. And we are furious that these doctors are going on a traveling media tour because there’s so few that buy into this logic anymore. And really what they’re trying to instill is this idea that the only healthy way of living is in a heterosexual, cisgender life and body. And that has lost its evidence base over the years and its scientific saliency.” But that is often at the core of some of the quasi-medical arguments that are being thrown out against this care.

JEN: “Well, we don’t let children drink alcohol. And we don’t let kids get tattoos. Children are too young to make medical decisions.”

GILLIAN: Well, alcohol is harmful to the body and gender affirming care is not, particularly when administered under the care of adequate medical providers. And tattoos are not medical care. And also, a lot of the states actually do let minors access tattoos – just for trivia. What those questions betray is the assumption that kids are choosing to be trans. And what they ignore is the grave distress that a lot of trans people feel in regards to this care. I’ve heard arguments that say that “Well, what if this isn’t a young transgender man? What if it’s just a girl who’s a tomboy?” Or “Are you just rushing young people who are defying gender norms and pathologizing them and giving them access to care?” And I think what that betrays is, “I want young people to live in the full diversity of who they are and not feel any pressure either way.” But what those assumptions ignore is that a lot of young trans people, it's not just that they’re expressing a desire for these things, they’re also expressing a lot of distress for a lack of them. And I think there’s a huge empathy gap in terms of what gender dysphoria actually is. But if I went to 12-year-old Jen and said that “You’re going to permanently grow facial hair that you’ll have to shave off every day. You’re going to shoot up in height. You’re going to have broader shoulders. You’re not going to develop like all of your female peers”. And you said, “Well, wait. I don’t want that. I know I’m a girl.” And then I said to you, “Well, let’s make sure. Let’s wait until you’re 18.” You would think that was absurd. And I think that is sort of what we’re asking a lot of trans kids to do. They know in their souls the distress that this is causing them. They’re having it affirmed by the experiences of their parents who are seeing this distress. They’re having it affirmed by mental health professionals and psychologists who are seeing the distress it’s causing them. And they’re having the physical safety of this health care affirmed by their pediatricians, by their endocrinologists who assist in this care. The child’s agency carries so much weight in the center. I also have never heard of a provider that’s providing this care without parental permission. I’ve never heard of a provider that’s providing this care to young people without rigorous assessment. And I think that comparisons that tattoos and drinking, I don’t think that’s people who are taking this seriously as medical care in itself. I think the more apt comparison is something like birth control and lots of young people will help their daughter access birth control, not when they’re 18, but when they need it. And they do so because they recognize that autonomy over their lives is important to them and becoming pregnant as a teenager would be very difficult and harmful to them. Likewise here, this is a decision that these young people, their families, and their doctors are making in their short and long-term interest.

JEN: Okay, well, “How can you let children put their fertility at risk? Like, what if they can’t have babies?”

GILLIAN: Well, one, I want people to have access to all the fertility options that they need. And I think that I’ve met lots of trans people who have started families, who’ve pursued fertility options for themselves, who’ve pursued adoptions for themselves. I don’t think that transition is the end of the family line by any means. I think trans people are just as dedicated to living fulfilling family lives as anyone else. I’m not going to sit here and tell you that these treatment options have no impact on fertility or that some don’t carry risks and others don’t. And that’s why it is, I think, important that people understand these risks before they go in. I think every medical provider does have a responsibility making sure they understand these risks. And, as I can tell, every medical provider is making sure that they understand these risks. But, ultimately, this is about the person themself and what’s right for the kind of life that they’re going to be leading for themself. But, again, it’s not as if any doors are being shut down. I know lots of trans people who in fact, are being told that hormone replacement therapy does not function as a contraceptive. That, if you’re still on birth control when you start HRT, you still need to stay on birth control. You still need to be using contraception during sex. So it’s not as if these are shutting the door towards fertility all together. That said, sure it might mean that they need access to other fertility options and those should absolutely be readily available for them.

JEN: I’m going to highlight that, for any parents who are listening, we talk about that a lot. HRT is not birth control. It doesn’t prevent pregnancy. So if you have a kid, if you’re listening, who is on testosterone for example, that doesn’t mean that they’re not at risk of pregnancy. So just be aware of that, parents. All right. I have one more for you. “We know that these bans are good or correct. That’s why all these countries in Europe have made it illegal to access gender affirming care.”

GILIAN: Well, one, no country in Europe has gone as far as states in the United states have. None of them have banned all this care outright. And where we have seen restrictions put in place, like in the UK, it has been met with the same kind of conservative backlash that we’ve seen here in the United States, same sort of media fire storm and politicizing of medical care. And it’s had the same disastrous impacts on trans people and their families. And I think everyone’s kind of cherry picking as well when they make those comparisons because I could also look to Canada or Spain or Germany where they’ve been expanding access to this care, where they’ve been protecting access to this care. So I think when you’re looking at those comparisons, I think it’s important to put them in their own political context that they are subject to. You have political leaders in the UK who are taking pointers on medical policy for transgender youth from J.K. Rowling. These are not people who are listening to the experts. They are not people who are listening to medical providers or trans people in their families. They are subject to the same political pressures that we’re seeing here in the United States. But even they have not gone as far as, say Idaho, in threatening to put these doctors in prison.

JEN: I appreciate, genuinely, your advocacy for our kids. It is comforting to know that there’s someone like you – and I know that you’re not alone – but people like you in Washington, that are fighting for our kids. And I want to thank you for coming to help our listeners better understand how we can navigate this political and legal landscape moving forward. Thank you so much.

GILLIAN: Well, of course. And just before I go, I’m far from alone here in Washington and our offices across the country. I would also encourage anyone listening to this to make sure that they're following their state ACLU affiliate on social media and that is also they will have resources for understanding what the laws are in your state in regards to accessing this care and future updates as we continue litigation around the country. And I’m not alone because we have all of you, frankly. I know all of you are having these incredibly difficult and complex conversations, not just amongst yourselves but in your families and your networks and your houses of worship and your church communities. And that is so critically important, and I know is saving lives every day, especially in the wake of all these laws. So I’m just so thankful for all the work that you do, all the work that your listeners are doing.

JEN: You’re so awesome. Thank you so much.

GILLIAN: Thank you.

JEN: Thanks for joining us here In the Den. While we have you, we want to let you know about the inaugural LUV Conference coming up this October 18th and 19th in Salt Lake City, Utah. The conference is all about learning and connecting and creating a more supportive environment for LGBTQ+ individuals and their families. Get more information at www.luvwithoutlimits.org . That’s L-U-V without limits.org. Or find the link in the show notes under the links from the show. We hope to see you there. 

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