Georgia’s Ban on Cross-Sex Hormones Stopped by Judge

The judge, who found the ban is likely unconstitutional, addressed questions including the quality of evidence and Europe’s systematic reviews.

by Evan Urquhart

Late last night, August 20, the news broke on Twitter that a judge has once again acted to block a ban on gender-affirming care for youth, this time in Georgia. District Judge Sarah Geraghty, a Biden appointee, issued a statewide injunction in the case of Koe v Noggle, stopping the enforcement of SB 140, Georgia’s ban on cross-sex hormones for patients under the age of 18, while the case is litigated.

Georgia’s ban is one of 22 similar laws preventing parents from seeking mainstream treatments for gender dysphoria for their children. The most recent of these laws went into effect last Wednesday in North Carolina after the Republican legislature overrode a gubernatorial veto in that state. The constitutionality of these laws is highly debated on multiple grounds. Judge Geraghty found that the claim that they violate the equal protection clause was “substantially likely to violate the Equal Protection Clause” which prohibits discrimination on the basis of sex. Another potential constitutional concern mentioned by Geraghty was that the laws violate parents’ due process rights, which includes a right to direct medical care for their children.

In her ruling the judge directly addressed several talking points that have been widely disseminated by anti-trans activists and propagandists on the right. She specifically discussed the charge that the evidence in favor of gender-affirming care is low quality, and the idea that systematic reviews conducted in Europe support banning treatments in the U. S.

Let’s start with the low quality evidence. You’ve probably heard this a million times: No matter how many dozens of studies you can point to that show benefits to patients who have accessed medical transition, the retort is that these are low-quality studies. Low-quality is a technical term in this context meaning that the studies aren’t randomized controlled trials where a patient is randomly assigned to either a treatment or a placebo group. (For more information on why randomized controlled trials may not be appropriate in this situation, there’s a paper delving into that question that was published in the International Journal of Transgender Health.)

Judge Geraghty heard testimony from expert witnesses on both sides of this question. She finds “the record shows that less than 15 percent of medical treatments are supported by ‘high-quality evidence,’ or in other words that 85 percent of evidence that guides clinical care, across all areas of medicine, would be classified as “low-quality” under the scale used by Defendants’ experts … Defendants do not refute Dr. McNamara’s testimony on this point, and indeed they “concede” that “low-quality” evidence “can be considered.”

Here’s a screenshot where Judge Geraghty continues along the same lines:

screenshot from Court Listener pdf of Judge Geraghty’s ruling

Judge Geraghty also writes: “There is a notable inconsistency between, on the one hand, Defendants’ experts’ insistence on a very high threshold of evidence in the context of claims about hormone therapy’s safety and benefits, and on the other hand their tolerance of a much lower threshold of evidence for claims about its risks, the likelihood of desistance and/or regret, and their notions about the ideological bias of a medical establishment that largely disagrees with them.”

Yes, it IS infuriating that, on the one hand, opponents of the mainstream medical consensus will hold gender-affirming care to a made-up standard of evidence that doesn’t exist in practice in any other area, while on the other hand they’ll credulously accept the anecdotal reports of a tiny number of politically-involved activist detransitioners over the mountains of evidence that regret is low.

Another claim the judge addresses is that systematic reviews conducted in Europe have led to restrictions on gender-affirming care that are similar to the U. S. bans. Judge Geraghty’s ruling goes country by country through what has been found and what policy changes flowed from those findings in Finland, Sweden, France, and Norway:

screenshot from Court Listener pdf of Judge Geraghty’s ruling

In summary, none of these four countries have banned gender affirming care. The Judge found that the restrictions in most of the countries were similar to what is recommended by WPATH: That treatments like puberty blockers and cross-sex hormones should be reserved for patients with consistent, persistent gender dysphoria that is severe enough to cause clinical distress, and that any other mental health issues should be well-controlled and the patient should be capable of understanding the treatment and giving consent.

Thus far, only the Sixth Circuit Court of Appeals has temporarily allowed a ban to go into effect, with other judges finding that bans on gender-affirming care are unconstitutional or likely to be found so. Unlike in this case, the Sixth Circuit’s ruling did not reference expert testimony or weigh the facts, instead declaring gender-affirming treatment unconstitutional with no justification for how it was found to be so. Treatments like puberty blockers and cross-sex hormones, having been used to treat gender-dysphoria in youth for decades and with numerous studies pointing to their effectiveness, are not experimental in any normal sense. Still, given the radicalization of the courts, no amount of common sense could be enough to fully reassure vulnerable families that their constitutional right to nondiscrimination and the ability to seek out high-quality, evidence-based care will be protected by the judiciary of the United States in 2023.

UPDATE 6:40pm: While it doesn’t immediately change the outcome of this story, late on Monday news broke that three Trump-appointed judges in the Eleventh Circuit reversed a decision halting a ban on gender affirming care in Alabama from going into effect. Georgia is in the Eleventh Circuit, as is Florida.