39 States Take Sides in Pivotal Trial Over Ban on Child Transgender Surgeries
By Janice Hisle
Combatants on both sides of the war over gender-altering drugs and surgeries for minors are crying out: “We’ve got to help these distressed children!”
But trying to chart a course toward that goal is like trying to see clearly through a dust storm.
Arguments over medical standards, morality, and money are swirling through statehouses and courthouses, schools and churches, hospitals and homes. Undisputed facts are in short supply, obscured by waves of emotion and evolving, politicized terminology.
At the same time, a rising tide of juveniles experiencing gender dysphoria, a persistent dissatisfaction with one’s gender, demands urgent attention.
Against that backdrop, Arkansas, home of the nation’s first ban on gender-altering procedures for children under 18, will see if its law holds up in court.
The law’s constitutionality goes on trial in Little Rock starting Oct. 17, less than three weeks after a very different law became official, declaring California the first “sanctuary state” where out-of-state minors can come for transgender-related medical treatments.
The California law will likely face a court challenge, too, as a conflicting patchwork of legislation on the issue blankets the nation.
For now, the spotlight is glaring on Arkansas’ Save Adolescents from Experimentation (SAFE) Act, as forces line up to prop it up or shoot it down.
As the case heads for trial, the SAFE Act counts 19 states, primarily Republican, in its corner, along with some two dozen other groups, transgender people, and doctors.
The American Civil Liberties Union, which sued to overturn the act, counts 20 predominantly Democrat states in its corner, plus dozens of families with transgender children and several dozen medical societies and activist groups that promote human rights and LGBT rights nationally and globally.
The law’s fate could greatly influence how America responds to a small but widening pool of families and children in turmoil over a child’s gender dysphoria.
No Middle Ground
The complex debate has split into two polar-opposite groups, each with its own set of catchphrases.
One group favors making puberty-blocking drugs, cross-sex hormones, and gender-altering surgeries available to youths, saying such procedures constitute “medically necessary, life-saving, gender-affirming care.” Those phrases repeatedly appear in court filings opposing the Arkansas law.
In the other camp, supporters of the SAFE Act and similar legislation decry the “medicalization, manipulation, and mutilation” of vulnerable children, driven by groupthink and profit motives of a new, multibillion-dollar gender-transition industry.
The nation’s largest medical groups support the “gender-affirming” approach and have thrown their support behind the American Civil Liberties Union’s (ACLU) lawsuit, which says “a well-established medical consensus” guides treatment plans for gender dysphoria and doesn’t always advocate medical intervention.
Critics say the medical establishment has silenced dissenters’ concerns about altering children and teens’ developing bodies when the science is far from settled; long-term effects remain unknown. They question the wisdom of rushing the procedures, citing studies showing the vast majority of transgender-identifying youths later “desist” and revert to the gender that matches their biological sex.
Rep. Robin Lundstrum, who introduced the SAFE Act, said, “There have been plenty of times in the past when medicine had said, ‘This is the right thing to do,’ but they’ve been wrong, and common sense and science have won out.”
By all indications, the number of children and teens identifying as an alternative gender is surging, perhaps because of social contagion, under the influence of peers and internet sites that glorify transitioning.
According to a Reuters report released this month, 42,000 U.S. children and teens were diagnosed with gender dysphoria in 2021, a caseload that nearly tripled since 2017.
The Gender Mapping Project, which calls itself “an educational resource for anyone who has been affected by the gender industry,” says a handful of gender clinics for children existed in North America a decade ago.
The number now exceeds 400, as confirmed by a force of unpaid volunteers who work in secret to gather evidence on the clinics’ activities.
Advocates argue that the availability of “gender-affirming care” can tamp down suicides and attempted suicides, which occur at alarming rates among gender-dysphoric youths.
In Arkansas, a half-dozen transgender adolescents attempted suicide within a few weeks after the SAFE Act’s passage, the ALCU said in a court filing, implying that the impending ban may have pushed those teens over the edge.
Lundstrum’s reaction: “If you have children wanting to kill themselves, there are some serious underlying issues that need to be addressed.” Anyone who is suicidal needs to go to an emergency room and a counselor’s office, not to a plastic surgery suite or an endocrinologist’s office, Lundstrum said.
She cites a lack of solid, long-term studies showing medical interventions help the suicide rate among transgender juveniles. And, she said, there’s convincing proof that sex-reassignment surgeries worsened the problem among adults. A respected, 30-year Swedish study showed sex-transitioned adults committed suicide at a rate 19 times greater than the control group.
Lundstrum, a Republican, laments that the warring factions in this controversy have split along political party lines. She noted that few Democrats in Arkansas—or elsewhere in the U.S.—have spoken out.
When Lundstrum heard about a Georgia lawmaker willing to oppose transgender treatments for minors, she contacted his office to offer moral support. But a staffer told her that the legislator faced immense blowback, so he bowed out.
Leaders need to set aside political agendas, Lundstrum said, and drill down to the core issue: What influences might be compelling children to feel they need to change their bodies dramatically?
“We should be locking arms across the political aisle and telling these kids they are incredible just the way they are,” she said. “If we don’t, I think that, in 10 years or less, as the science comes out, people are going to look back and say, ‘I can’t believe what we’ve done.’”
After taking one glance at the SAFE Act and its sponsor, a Southern Baptist from a red state, some people assumed that Lundstrum surely must be misguided, anti-transgender, or “transphobic.”
But those labels, lobbed at Lundstrum and her legislation, are laughably inaccurate, says Scott Newgent, a biological woman who medically transitioned to appear male. Newgent calls Lundstrum a friend.
Now living in Texas, Newgent, 49, became medically masculinized at 42. Since then, Newgent has undergone eight surgeries, endured repeated complications, and amassed $1.2 million in medical bills. The costs will continue climbing for the rest of Newgent’s lifespan.
Doctors brushed off Newgent’s questions about the risks of transition procedures; many “gender-affirming” advocates do that, too, Newgent said, blinding gender-dysphoric children and their parents to the dangers of the proposed panacea.
Newgent says the transgender-rights movement is not motivated by “love and acceptance,” as society was led to believe. Instead, it’s about making money. “Every child that they say is ‘transgender’ equals $1.3 million” for the medical and pharmaceutical industries, Newgent said.
A parent of three children, Newgent vehemently opposes “medical transitions” for minors. Because of his transgender journey and impassioned pleas to shield children, Newgent has drawn international attention.
Upon hearing about Lundstrum’s bill, Newgent agreed with its stated intent but was prepared to hate it.
Many people in Lundstrum’s primary political sphere are conservative, heterosexual, and presumably clueless about the thorny issues entangling medical gender transition, Newgent said. Without that understanding, it would be impossible for her to produce a well-crafted piece of legislation to restrict the procedures.
Newgent also was skeptical of Lundstrum’s motives. Had she latched onto the hot-button issue of the day to make political hay?
After investigating, Newgent was pleasantly surprised about the bill and its sponsor.
He found the SAFE Act was worded accurately, backed by research, and potentially very effective. “I say, ‘Bravo.’ A few tweaks and this could be a nationwide HALT to medical transitioning children,” he wrote in a May 2021 blog post.
Newgent commended Lundstrum for citing “the experimental nature” of using puberty blockers and cross-sex hormones on children. The SAFE Act also lists “serious known risks” of these drugs’ legal but off-label use, including blood clots, osteoporosis, diseases of major organs, and irreversible infertility.
He contacted Lundstrum to apologize for unfairly prejudging her.
Over the phone, the two struck up a friendship; they communicate often but have not yet met in person. Despite coming from starkly divergent backgrounds, Newgent and Lundstrum found common ground.
“Imagine me, Scott Newgent, a fully transitioned transman, saying the words of Robin Lundstrum: ‘Those kids are precious. Some of them may choose to be transgender when they’re older. That’s OK. …. But when they’re under 18, they need to grow up first. That’s a big decision; there’s no going back,’” Newgent wrote.
“In fact,” Newgent wrote, “I have said almost these exact words, many times now.”
In its lawsuit against the SAFE Act, the ACLU declares that a person’s gender identity, or sense of belonging to a particular gender, “is durable and cannot be altered through medical intervention.” If that’s so, how can people declare they are “gender-fluid” and frequently change their genders?
Newgent’s take: “Gender is not fluid. Masculinity and femininity are fluid.” But neither of those attributes replaces “a biological fact,” he said: DNA imprints a person’s sex as male or female, and no amount of drugs or surgeries can change that.
“I will never be a man,” despite outward appearances, Newgent said.
A high percentage of the young people who declare, “I am trans,” are autistic, abused, mentally ill, or just oddballs who feel lost and isolated, Newgent said. Proponents of medical transition are selling them a fantasy: “They can be cured of this oddity,” Newgent said.
Lots of these people later come to important realizations, Newgent said. They see their deep mental and emotional scars remain after the procedures. Some recognize their confusion was over sexual orientation rather than gender identity. That helps explain why some gays and lesbians have sided with Lundstrum, a mother of two and grandmother of four whose political base is populated with Christian evangelicals, Newgent said.
Lundstrum said some people over-emphasize her religion. “People think I’m going to thump them over the head with a Bible,” she said, laughing. “I’m not that way.”
Newgent said Lundstrum has demonstrated that she doesn’t have to be in lockstep with her base: “She does what is right and doesn’t back away from it.”
‘Like Seeing a Car Wreck and Not Calling 911’
Unbeknownst to Newgent and most others, Lundstrum’s educational background influenced her to propose the SAFE Act.
She holds a doctorate in health sciences and has always been keenly interested in children’s studies and human sexuality. She worked as a rape crisis counselor and educator for a hospital. She also taught at John Brown University in northwest Arkansas.
After leaving academics and becoming a state lawmaker in 2015, Lundstrum stayed abreast of her former field of study.
“Never in a million years did I think my political life and academia would merge like this—never,” Lundstrum said in an interview.
But in late 2020, Lundstrum and other Republican women gathered for “The Dream Big Caucus.” They brainstormed legislation that would have the most significant impact on Arkansans.
Lundstrum piped up: “You know, there’s a lot going on in human sexuality.” She mentioned learning about minors’ “chemical and surgical transition” in other states, particularly along the east and west coasts.
She recalled saying: “What I’m seeing is really terrifying because these kids have no clue what’s going on…Is anybody else seeing this?” Yes, her fellow lawmakers responded, telling her that it was happening in their state, too.
“And I was like, ‘Whoa, whoa…not in Arkansas,’” Lundstrum, a near-lifelong resident, said. She found websites proving that Arkansas hospitals were promoting transition processes for minors.
Lundstrum dug around and was alarmed when she saw the procedures were becoming more common than most people knew. Then she saw post-surgery pictures of teens. “It is brutal. It’s cruel. It looks like something out of a Nazi camp. And I don’t think that’s an exaggeration,” she said. “No 13-year-old should ever have their breasts removed. And no 17-year-old boy should ever have his penis and scrotum removed.”
She felt compelled to act: “It’s kind of like seeing a car wreck and not calling 911. When you see a car wreck, you call 911.”
Act Passed Swiftly
A few months later, in February 2021, Lundstrum introduced the SAFE Act. Within weeks, it passed the House, 70-22, and the Senate, 28-7. One Democrat Senator broke rank; Republicans cast all the other votes.
In April 2021, Republican Gov. Asa Hutchinson, at the urging of medical groups, vetoed the SAFE Act, calling it government overreach. He said parents and doctors should make treatment decisions for juveniles, not the government. The next day, both chambers of the Arkansas Statehouse voted to override the veto.
The bill proved timely. In May 2021, Sweden’s Karolinska Hospital ranked as the eighth-best in the world, made an announcement that sent shockwaves through the transgender treatment realm. The hospital said it would stop using puberty blockers and cross-sex hormones as treatments for youths.
“This is a watershed moment,” the Society for Evidence-Based Gender Medicine said. The Swedish decision reflected a dawning global awareness of “the low quality of evidence” in studies investigating benefits of the treatments for youths, the Society said. As a result, efforts to help gender-dysphoric children may move away from medical interventions and toward “ethical psychological treatments and support,” the Society said.
The Swedish announcement made some supporters of the SAFE Act do a virtual “I-told-you-so” dance. The Family Council, a Christian advocacy group that influenced Lundstrum’s bill, wrote that the Swedish hospital’s shift in policy “is just more evidence that Arkansas was right to pass the SAFE Act.”
Several states responded by proposing bills patterned after the SAFE Act; the ACLU responded with its lawsuit.
Unconstitutional Discrimination Alleged
In its initial federal court complaint, filed in May 2021, the ACLU said it was representing four Arkansas families with gender-dysphoric youths, plus a pair of doctors who treat that condition. The SAFE Act “threatens the health and well-being of transgender youth in Arkansas” and also is unconstitutional, the ACLU alleges.
“It discriminates on the basis of sex and transgender status,” the ACLU said, noting the law forbids certain treatments “only for transgender patients and only when the care is ‘related to gender transition.’”
The plaintiff families in the lawsuit have transgender children who were ages 9-16 when the suit was filed. The youngest, Brooke Dennis, was “designated as male on her birth certificate, but her gender identity is female,” the suit says.
Brooke “always knew who she was,” the suit says, describing affinity toward activities and clothing traditionally considered “feminine” since age 2. Brooke went to a school counselor due to stress over gender issues, including classmates’ debates over which sex-segregated restroom Brooke should use.
After adopting female pronouns and a new name, “Brooke has returned to being the happy, bright-eyed child she used to be.” Brooke was diagnosed with gender dysphoria in late 2020 and expressed anxiety over “going through a typical male puberty” and having a male body. “She recently cried and told her mom that she didn’t want to get an Adam’s apple,” the suit says.
Given all of that, Brooke’s parents were intending to start “puberty-delaying treatment” at the first signs of puberty, the suit said. The family has contemplated moving out-of-state to get treatment for Brooke if the SAFE Act is enforced.
Lundstrum expresses compassion for such families. But she can’t help but wonder what the future might look like for these children, especially because she has heard so many stories of regret.
Chloe Cole, now 18, is one teen who has gone public with a cautionary tale. She was born female but hated girls’ clothing. Discussions on social media sites convinced her she was transgender. She revealed that belief at 12. At 13, she got puberty-blocking injections, followed by testosterone, and eventually a double mastectomy. She now calls her transition “brutal,” and embraces her femininity while regretting the damage to her body.
She has started a group called “Detrans United,” to support fellow “detransitioners.” Cole is not listed among the official supporters of the Arkansas law, but she has publicly stated she supports a proposed nationwide ban on medical transitions for youths.
In July 2021, before the Arkansas law took effect, U.S. District Court Judge James Moody Jr. granted the ACLU’s request to block Arkansas from enforcing the law, pending the lawsuit’s outcome.
A federal appeals court recently sided with Moody and kept the temporary injunction in place, cuing a preliminary victory lap for the ACLU.
In a news release applauding the decision, Chase Strangio, an ACLU lawyer on the case, said the ruling showed “the state’s ban on care does not advance any important government interest, and the state’s defense of the law is lacking in legal or evidentiary support.”
Some fuel for the ACLU’s fight comes from its Jon L. Stryker and Slobodan Randjelović LGBTQ & HIV Project.
In 2021, Stryker and Randjelović bestowed the ACLU with a $15 million endowment to fund that project, the ACLU said in another news release. “The gift is the largest LGBTQ rights-focused gift in the ACLU’s history,” the release said.
Stryker is the founder and president of the Arcus Foundation, the largest non-governmental organization devoted to the LGBT cause, according to Jennifer Bilek, a journalist who has spent years tracking how money is connected to transgender activism.
Bilek believes that billionaires are behind the scenes, pushing for global acceptance of “gender identity” and “transgender” ideologies. The goal, she said, is to create new markets for medical services and products. Bilek has called the transgender crusade “big business dressed up in civil rights clothes.”
‘Body Art’ Illegal
In response to the ACLU’s filings, Arkansas Attorney General Leslie Rutledge pointed out that laws commonly forbid juveniles from making choices that are perfectly legal for adults.
Under Arkansas law, minors are barred from buying certain cold medicines. They can’t legally play bingo or the lottery. They can’t bet on horse races or dog races. And they also cannot have their nipples and genitals pierced or tattooed—not even with parental consent.
So that’s why it seemed logical to outlaw removing or altering those parts of a child’s body for gender-transition reasons, Lundstrum said. She sees the SAFE Act as a logical extension of the state’s child-protection measures.
“There is a huge list of all the things that we do to protect minors. ….You can’t drive until 16. And you can’t vote until 18,” she said. “But we will chemically castrate our children without thinking about counseling first, without finding out what the problem is, finding out why a child would want to disavow the sex that they were born with? It’s the irony and the sickness of that.”
Lundstrum says her legislation prompted great conversations with many transgender people. A few told her that transitioning made them feel more comfortable about their identities, “but the pain, the long-term issues have cost them dearly,” she said.
One of the most poignant observations came from a male who medically transitioned to female and told Lundstrum: “So I’m living two lives at the same time, with all the health complications that come with living both genders.”
States that are listed in support of Arkansas ban on transgender procedures for minors are: Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia. In addition, Ohio has proposed a similar law, but is not listed among the official supporters of the SAFE Act.
The states that have sided with the ACLU’s fight to overturn the Arkansas ban are: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont and Washington. The District of Columbia is also listed.
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