Gender-affirming care and the dignity of risk
Last week, the Supreme Court heard oral arguments in the case United States v. Skrmetti, which asks whether the state of Tennessee should be allowed to enforce its ban on gender-affirming care for youth.
Throughout arguments, several themes appeared in the questions coming from the Court’s conservative justices. One was the alleged risk of gender affirming care. Justice Brett Kavanaugh stated that if the treatment was allowed, some children would suffer. They might get the treatment but later regret it and wish to detransition. “And so there are risks both ways in here … it’s a difficult judgment call as a matter of policy.”
American Civil Liberties Union attorney Chase Strangio–who happens to be the first openly trans person to argue a case before the Supreme Court–appeared on behalf of the case’s original plaintiffs, several families and one physician. He noted that the statistics about regrets and detransition used to justify bans of gender-affirming services are outdated and come from very young children’s studies. The Skrmetti case involves treatments such as hormones and puberty blockers, which do not apply to children before puberty. Strangio informed the Court that “the evidence shows that an adolescent’s likelihood of identifying with their birth gender is very low” once they reach puberty. According to better-designed, more recent studies, this rate is less than one percent. Justice Samuel Alito referred to recent guidelines issued by the Swedish government and the Cass Review in the United Kingdom on several occasions. In both cases, health authorities determined that benefits of gender-affirming care had not been demonstrated to outweigh its potential risks in all cases, and instituted new limits on access.
However, as U.S. Elizabeth Prelogar, the United States’ Solicitor-General, argued that neither Sweden nor the U.K. had banned gender affirming care. Both countries’ health officials recognize that gender affirming care may be necessary in some situations. Noteworthy, Dr. Hilary Cass’s lack of experience in trans health care led to her being selected as the review leader. Many bioethicists believe the answer is no. According to many bioethicists, the answer is no.
This is thanks to a concept called the dignity of risk, which arose from the disability rights movement in the 1970s.
“Overprotection,” wrote disability rights advocate Robert Perske in a 1972 paper, undermines a person’s “individuality and growth potential,” smothers them emotionally, and prevents them from “experiencing the normal taking risks in life which is necessary for normal human growth and development.”
DT Phots1/Shutterstock
Since the 1970s researchers and ethicists applied this framework in many other areas. In 2014, bioethicist Katie Watson wrote a commentary in the Journal of the American Medical Association applying the framework to abortion.
Abortion and gender-affirming care are not the same thing–though abortion can be gender-affirming care. What they have in common is that they are hated by the same people, because both allow individuals to cast aside rigid, traditional gender roles and take control of their own sexuality and reproduction.
And let’s be extremely clear about one thing: It is very, very difficult to access gender-affirming care in the U.S. It takes a lot of determination and planning. To suggest that young people who manage to overcome these barriers are doing so flippantly, or that providers and parents are acting recklessly in helping them, is insulting.
In another striking moment from yesterday’s arguments, Justice Amy Coney Barrett said she wasn’t aware of examples of “de jure” discrimination against trans people–in other words, government discrimination against trans people, as a group, enacted in the form of laws, which is the type of discrimination at issue in this case.
Strangio pointed out, among other things, the U.S.’s history of bans on cross-dressing. These bans go back to the mid-19th Century, when states began to restrict abortion. Since its origins in the 19th century, the American anti abortion movement has been a sophisticated disinformation engine. Now, we see that the same people are using the same playbook to target trans people and, most despicably of all, trans youth. We see this in the selective and misleading use of scientific evidence, or even outright pseudoscience. We see it when cruel and disparaging remarks are made about transgender people. We see it in the assertion that bans like Tennessee’s are simply about protecting people, especially children.
Countering misinformation requires spreading corrective information far and wide. Critical thinking is also required. So, let’s think critically about regret.
Another commonality between abortion and gender-affirming care is their low rates of regret. For example, the Turnaway Study found that after five years, 95 percent of participants still felt abortion was the right choice for them.
And, as Turnaway Study team member Corinne Rocca told me on my podcast, ACCESS, in 2021, of that five percent who report feeling regret, 90 percent still feel abortion was the right decision for them.
“I think it’s really important to distinguish decision rightness or decisional regret from having negative emotions or even the emotion of regret,” Rocca told me.
And even when people do make choices they regret, isn’t that part of what makes us human?
Failure, Watson, the bioethicist, told me, is “part of being an autonomous adult. It’s the only way you can learn. That’s how you develop resilience.”
In a 2022 paper, psychologists Wendy Heller and Haley Skymba argued that the concept of dignity of risk can be applied to adolescent development as well. It is not only age-appropriate to expose young people to some risk, but it also helps them learn good decision-making. Rather than trying to save adolescents from themselves, they argue, parents and guardians should help them make their own decisions and learn from them–including when they make mistakes.
Rates of regret for elective plastic surgery not related to gender-affirming care range as high as 47 percent. Nearly 20% of people regret having bariatric surgery. Around 10 percent of knee replacement patients regret their decision. Yet, we aren’t restricting these life-altering medical procedures based on their high levels of regret and dissatisfaction–including for young people. Why would we legislate on the basis of fears and regrets around gender affirming care when these risks are objectively smaller?