The Liberal Retreat on Transphobia: "Zealous Minorities" Edition
The People vs. David Brooks
On Monday afternoon, the Supreme Court of the United States came as close as it has ever come to revealing its stance on the 24 laws banning gender-affirming medical care for transgender youth passed in the last three years. Idaho’s HB 71 is one of five such bans in the country (thus far) that threaten medical providers with a felony if they provide care to transgender youth that the law explicitly protects when provided to cisgender youth, an openly discriminatory intent these states don’t tend to challenge in court. After a request from the state in February, the Supreme Court granted a partial stay this week, allowing those laws to be enforced against anyone not party to an ongoing lawsuit against the law brought by two transgender adolescents and their parents.
The decision issued by the Court is not itself concerned with the constitutionality of the ban and is instead focused on the nature of universal injunctions and the appropriateness of issuing this decision under the “shadow docket.” Its impact, however, will be immediately felt by the estimated 1,000 transgender youth who live in Idaho and the medical providers who will now be forced to reject their own medical judgment and replace it with the judgment of the Idaho state legislature. In testimony against HB 71 last year, Idaho adolescents spoke in defense of their friends and themselves:
May Rose, who is under 18, said she wanted to talk to the committee about some of the Idaho youth that would be impacted by the HB71. She said she could testify that some of the gender affirming care that some of her friends received “has saved their lives.”
“I can testify to the fact that they have told me about the excruciating agony, that they feel uncomfortable in their own bodies,” said Rose. “And the way that hormones and puberty blockers have helped them feel better. I can testify to the depression and anxiety that they have voiced about not feeling at home in their own bodies.”
Eve Devit, who is a 17-year-old transgirl, told the committee since she started estrogen almost three years ago, her mental health has gotten significantly better….She said she came out to her family when she was around 13 years old, as she was about to enter male puberty.
“It took about 9 months to a year to actually get on puberty blockers. I had to go through a bunch of psychological evaluations to make sure my being trans wasn’t because of a traumatic experience, depression or anything else like that,” said Devit. “From there it took probably another 6 months of getting test done, getting labs done, going to a therapist…to get on to estrogen.”
Like in other states, a small touring group of doctors committed to opposing the affirming model of health care—and trans people’s autonomy more broadly—were flown in to speak in favor of the ban that would impact patients they don’t treat in a state that is not their home. When HB 71 was passed into law, pediatricians who do work with trans youth in Idaho named this disparity:
We want you to know that in just five short days, we had over 650 physicians, providers, and medical students from all over Idaho sign a letter to Gov. Brad Little asking him to veto HB 71. Unlike the sponsors of the bill, we did not have to fly providers in from out of state or rely on doctors who have never met you or cared for you to testify. That’s because we, the physicians of Idaho, know that providing the widely accepted standard of care to young trans people is well studied, safe, and life-saving. For us, the doctors who do care for you, this is not about politics or some theoretical fear. This is about real people living real lives. This is about parents making the best decisions they can for their kids. This is about our neighbors, our friends, and our community.
After the Supreme Court’s decision this week, the pediatricians above who work with transgender youth are now faced with the prospect of criminal prosecution if they maintain their patient’s access to hormones or puberty blockers. And puberty being what it is, the law doesn’t put their patients in a static position but a quickly-moving one, posing real threats to their well-being across their entire life.
These consequences of Idaho’s law are fully intentional, forced on transgender youth, their families, and their futures with the full force of the state and its monopoly on violence, suppressing their access to care or even information about it. As the Associated Press reported this week:
Arya Shae Walker, a transgender man and activist in the small city of Twin Falls in rural southern Idaho, said he was concerned that people would alter the doses of their current prescriptions in order to make them last longer. His advocacy group has already taken down information on its website on gender-affirming care providers for young people in the area out of concern of potential legal consequences.
So it’s only natural that, also this week, The New York Times ran an op-ed from David Brooks falsely equating bans like Idaho’s with activists like Arya. Celebrating a controversial British report on gender-affirming medical care by Dr. Hilary Cass, Brooks warned of “debates that have been marked by vituperation and intimidations”—calling for calm as if the house isn’t burning down in Idaho and states across the country.
As Brooks tells it, the “debate” over transgender youth’s right to hormones and puberty blockers is simply too ideological and lacking in “empiricism,” having been radicalized by the right and the left in equal portion:
As Cass writes in her report, “The toxicity of the debate is exceptional.” She continues, “There are few other areas of health care where professionals are so afraid to openly discuss their views, where people are vilified on social media and where name-calling echoes the worst bullying behavior.”
Cass focused on Britain, but her description of the intellectual and political climate is just as applicable to the U.S., where brutality on the left has been matched by brutality on the right, with crude legislation that doesn’t acknowledge the well-being of the young people in question. In 24 states Republicans have passed laws banning these therapies, sometimes threatening doctors with prison time if they prescribe the treatment they think is best for their patients.
As an example of the “brutality” on the left that supposedly “matches” the brutality of Idaho’s ban, Brooks tells the story of Sallie Baxendale, a British psychologist who’s worked alongside organizations banning gender-affirming care for transgender youth in the US (such as the conservative “Society for Evidence-Based Gender Medicine”). After having a paper of hers on puberty blockers rejected by three different medical journals, Baxendale guffawed (in the journal of aspiring eugenicists Unherd) at the accusation of some peer reviewers that she was “biased” in her assumptions and conclusions.
As she told The Guardian last year, “I’ve been accused of being an anti-trans activist, and that now comes up on Google and is never going to go away. Imagine what it’s like if that is the first thing that comes up when people Google you? Anyone who publishes in this field has got to be prepared for that.”
You can argue that’s not a very nice thing to do (though a quick Googling right now will pull up her University College London staff page), but considering her relationship with an organization like SEGM and her eagerness to be featured in UnHerd it also doesn’t strike me as an entirely untrue claim to make of her, either. In either case, Brooks's outrageous suggestion that her stained Google results (which she can actually appeal in the UK) amounts to the mirror image of bans threatening to put doctors in prison is remarkably revealing about how and why the gender medicine “debate” is sticking to the ribs so well of pundits like himself.
As I’ve previously noted about Brooks’ class of commentators, his insistence on hiding his obvious ideological goals behind “empiricism” or “skepticism” is belied by his genuine lack of concern for the tens of thousands of transgender youth now faced with losing the health care that serves as the foundation of their lives and their futures—a loss that is medically contraindicated by everything we know about this care. But even if we take Brooks at his word, the most dire and immediate threat to providers researching this care are the bans (which are matched by partisan investigations led by Republican state attorneys general, the censoring of curriculum about this care from medical schools under political pressure by Republican governors, proposed nationwide bans that also target research within government agencies, and threats of right-wing violence so persistent they’ve shut down some of the largest children’s hospitals in the country). that Brooks equates with some trans people being mean on the internet.
This false equivalency from Brooks is far from unique—it’s a trope so common to the op-ed pages of the Times it routinely inspires the “NYT Pitchbot”—but its utility for trans skeptics like Brooks is to justify their moral cowardice and obscure an amoral position. It’s also quite similar to the position Dr. Cass herself has staked out, having met with anti-transgender activists who refute the very notion of transgender identities as if their perspectives are of equal weight to transgender youth and their families.
As Brooks wrote this week, “The battle lines on this issue are an extreme case, but they are not unfamiliar. On issue after issue, zealous minorities bully and intimidate the reasonable majority. Often, those who see nuance decide it’s best to just keep their heads down. The rage-filled minority rules.” Having established everyone is being ideological but him, Brooks can hide behind his neutral stance and minimize the risks to transgender people, our families, and our medical providers as simply the erotics of a “zealous” minority and celebrating people like Dr. Cass as if they are themselves free of ideology or politics. In what I suspect was the goal of the Cass Review, commentators citing it as coolly objective and removed from the political discourse seeking to erase transgender people from public life (in the UK, the US, and many other corners of the globe) are using it as cover for ignoring that discourse or, worse, portraying a politically powerless group as itself a threat.
It’s a shockingly similar stance to the one Brooks took on abortion following the Supreme Court’s arguments in Dobbs. As Irin Carmon noted last year in an essay for The Cut detailing the similarities between attacks on abortion and transgender medicine:
We used to hear a lot more from the political center about how if only radical pro-abortion forces moderated, a rational compromise could be reached. One of the bleak consequences of the Dobbs decision is that almost no one seriously suggests that anymore. Roe is dead, and it’s harder to accuse advocates of hysterically exaggerating the threat when emboldened state legislators are openly talking about executing abortion patients. The accusation of going too far too fast has now been aimed at supporters of trans rights.
It’s a mistake the very people banning gender-affirming medical care are praying centrists like Brooks make again. In a situation people smarter than I suggest is ethically concerning, Idaho is being represented in its defense of the ban on gender-affirming medical care by the Alliance Defending Freedom which has likewise drafted the model legislation that serves as the blueprint for laws like HB 71. ADF, which also led the legal strategy to overturn Roe v. Wade, broadly supports the inscribing of Biblical gender roles into the law and believes “gender ideology attacks the truth that every person is either male or female.” In addition to opposing transgender people’s health care, they argued in front of the Supreme Court last month against the FDA’s approval of the abortion drug mifepristone and are broadly committed to ending access to contraception.
On Tuesday, the ADF will once again be in front of the Supreme Court, this time representing Idaho in its defense of its total abortion ban which, like Idaho’s ban on gender-affirming medical care, threatens abortion providers with a felony charge and up to five years in prison. While the abortion ban provides narrow exceptions for the life of the pregnant patient, the Department of Justice says this law conflicts with the federal Emergency Medical Leave & Active Labor Act (EMTALA) which requires doctors to provide care to “emergency medical conditions”—a significantly broader category of care than is allowed by the exceptions in Idaho. As a heartbreaking report from the Associated Press this week emphasized, bans like Idaho’s force patients into life-threatening and degrading conditions and have encouraged emergency rooms to treat any pregnant patients as “radioactive.”
In its efforts to defend its total rejection of both abortion care and transgender health care, the ADF and its allies have engaged in a similar playbook of pseudoscience, misrepresentations, and finger-pointing. Disgraced doctors, inflated tales of regret, and the demonizing of an “industry” behind both are prominent tropes often trotted out not just by the very same groups but by the very same activists. One of the doctors ADF is representing in its challenge against the FDA’s mifepristone regulations, for example, is also a Republican state legislature in Indiana and the primary sponsor of the state’s ban on gender-affirming care.
The ADF even went as far as offering $15,000 to the American College of Pediatricians, a conservative splinter group of the American Academy of Pediatrics (which represents over 67,000 pediatricians across the country and just reupped its support of gender-affirming medical care last year). ACPeds was offered this money by ADF in 2018 to find evidence in support of the arguments the organization is now making in front of the Supreme Court (ACPeds is also very active in sowing doubt about abortion, birth control, and sex education).
As Irin Carmon noted:
You can find a similar logic in ADF’s filing on behalf of the plaintiffs in the bid to ban a common abortion pill. It uses curious language to describe a long-approved medication: that the FDA should have heeded the supposed impact of a “hormone-blocking regimen on the developing bodies of adolescent girls” in an apparent attempt to link the pill to puberty blockers. Listen to the conservative panic about trans youth for long enough and you’ll hear lots of talk about young girls “sterilizing” themselves, underscoring that part of the terror here is a vacant uterus.
The goal of all this isn’t to convince judges or newspaper columnists of any single false claim—it’s to flood the zone with shit. As a legal strategy, it allows judges to cite a “debate” as justification for allowing a ban to take effect. As a media strategy, it encourages people like Brooks to help them pull an active battle into the abstract, away from the material realities unfolding in front of us and into an imagined laboratory immune and neutral to that struggle.
As the historian and author of Histories of the Transgender Child
noted in her own response to the Cass Review, this hunt for neutrality is a fool’s errand:It is profoundly easy for a motivated author to tell a decontextualized story of medical transition in which youth transition is very recent, the gold standards of evidence-based data are lacking, and in which a “challenging public debate” (p. 12) should result in sober compromise to prove the wisdom of those in power…Much like with the science of climate change or vaccination, the defense of scientific authority against its supposedly irrational or unfairly political critics misunderstands that scientific and medical consensus is itself the outcome of a political struggle over the truth.
The operative word Gills-Peterson uses is power. The transgender people Brooks equates with anti-transgender organizations like ADF are, by any measure, lacking in political power. The fact of our existence is powerful, our willfulness to live freely and openly is powerful, and our insistence in challenging a gender binary that is itself an ideological construction (itself a political struggle falsely portrayed as an empirical fact) is powerful. But that cultural and social power is being met by the sheer and material power of the state and Brooks's implicit recommendation is the submission of our will to it.
Which is largely the perspective of the Cass Review itself. Taking as granted the notion transgender youth are undeserving of subjectivity over their own lives and bodies, the Review casts doubt on medical care that is much more readily and more frequently afforded to cisgender youth—not because the treatments themselves are significantly changed by the sex of the patient but because of the political boundaries transgender youth defy. It is not the assertion of just any perspective that is being suppressed but specifically those perspectives of a“zealous minority” that should be forced under the heel of an “ambivalent” majority that coddles its conscience with the false claim of neutrality.
Much like Idaho’s ban on gender-affirming medical care, the Cass Review is not borne from a neutral environment but a hotly-contested one and both hold at their core the same goal—the defense of a false binary in a world with as few transgender youths in it as they can manage. That assumption is the foundation of political and medical discourses about this medical care, and any analysis that ignores that fundamental reality also endorses it.
Pamela Paul was too busy last week arguing for riot cops to storm Columbia so she needed Brooks to do her usual stuff
Someone should ask David Brooks why it's appropriate for the state to impose by force of law a standard of care different from the prevailing standard of care overwhelmingly agreed upon by medical professionals in the field. Someone should ask him why a few dissenters (and we all know they have a political, social and cultural axe to grind rather than a medical one) get to have the state impose by force a different standard of care. He professes to be a "conservative" and an empiricist? Is that an approach that is consistent with what he claims to be? Why do primarily white male politicians claiming some twisted religious bent - the great majority of whom have no medical training at all - get to impose by state action a standard of care different from what the medical profession has agreed upon.