Do Trans Kids Have a Right to Their Gender?
Assigned Media interviews Ray Briggs and B R George, co-authors of the book “What Even Is Gender?”
by Riki Wilchins
Ray Briggs is Professor of Philosophy at the University of Chicago. B R George is a former Carnegie Mellon assistant professor of philosophy. Together, they authored the book “What Even Is Gender?”
AssignedMedia: To date the entire national debate over pediatric affirming care has revolved around trans kids in affirming families. Media, law, and theory have had very little to say about the rights of the roughly half of trans kids who are in disconfirming families and what, if any, should be legal limits on parental rights to deny medically recommended care. Then in 2019 an article by a then-obscure bioethicist named Maura Priest argued for kids having a moral and legal right to their genders. As you know since you’ve both written on this, she struck a nerve and scores of papers have been flying back and forth on this. So what is the core argument here?
B R George: The core argument is that children have a right to make certain decisions at their own discretion. For example, in reproductive health: parents shouldn't control their access to contraception or abortion. The analogy from that to medical transition is very strong: both concern a very intimate and latent aspect of one's physiology, where the implications of being denied control have high stakes and life-long term consequences. If we don't think it's reasonable for parents to insist that a teen carry a pregnancy they don’t want to term, then it ought to be reasonable that they don't go through a puberty they don't want.
AM: How might that argument apply to cisgender kids?
BG: Reactionaries are panicked about the idea of a parent unilaterally medically transitioning their cisgender child. They agree that this would not be a legitimate exercise of their parental rights. While this is only reactionary propaganda and the kind of hypothetical that never—to my knowledge—happens, we all clearly don't think there's a general right for parents to control the gendered physiological development of their cisgender children.
Ray Briggs: I want to disagree here a bit and point out that something just like this does happen with intersex kids, whose parents unilaterally transition them to what they consider a “normal body.”
BG: But unless we're privileging cisgender kinds of life trajectories out of the box, I don't think we can justify a parental right to deny access to blockers and force someone to go through endogenous puberty. It’s like natural development has a moral privilege or some magical special feature. But I think bodies are bodies and hormones are hormones.
RB: What is a good outcome here? What is a bad outcome? I've been thinking about this. How, when cis people imagine trans kids, they imagine this doctor who sees that a little boy enjoys playing with dolls, and so the doctor immediately says, We have to give you hormones now, and then surgery. And they think, Wouldn't that be awful if that happened to me as a cisgender person? Because their bodies would change in ways that they don't want, that were strange or terrifying. Nobody wants their body taken away from them.
But they overlook that this is what it feels like for lots of trans kids to experience an endogenous puberty if they didn’t get blockers and hormones: having their bodies change in ways they don't want, ways that feel kind of horrifying, that make their body feel alien.
AM: Let’s agree that there is a philosophical and ethical basis for limiting hostile parental rights to control their child’s gender. How might lawyers eventually anchor that right in law? Priest used the analogy of STDs—which teens have a right to treat without parental consent—and to so-called “conversion therapy”—which many states have limited parents’ right to inflict on their children.
RB: Reproductive health is a kind of legal carve out where parents don't get to make these kinds of medical decisions for their kid with contraception, abortion, or STD treatment. But I've been thinking these are slightly different things. Because with an untreated STD, there’s a public health issue involved: if it goes untreated it’s potentially bad for everybody. I don't think that we can say that an unwanted pregnancy or having to suffer through endogenous hormones is bad for everybody.
AM: Also things like STD treatment, abortion, and contraception involve immanent harms, private behaviors, and a limited scope time-wise. Whereas giving young people the right to not only gender affirming care but to everything comes with it is slow-growing and long-term, and the behaviors that go with care—names and pronouns, haircuts, clothing—take place in public and have an open-ended time frame
RB: In addition, STDs, abortion, and hormones get counted as medical care. But letting a kid dress how they want isn't medical in any sense.
AM: There’s a competition between the rights of the disconfirming parents and the rights of trans kids, and how we ask the law to adjudicate this . Priest tried to move beyond the carve out for reproductive rights by noting that child abuse —physical and emotional—is illegal. So if the law can intervene to give a child the right to be free from parental abuse, it should be able to give them the right to affirming care, because denying it is abusive.
RB: If we had two adults and one of them told the other one, You cannot wear these clothes, you cannot have these haircuts because it is aesthetically displeasing to me, we would easily recognize that as abuse. There’s also abuse like that towards children.
AM: But, playing devil’s advocate, parents make all kinds of decisions that cause their kids long-term psychological pain where we don't authorize the state to step in. The question is, exactly where is that line drawn?
RB: I'm struggling with this because I don't want to give the law a free ride to step in every time the state thinks that parents are making bad decisions for their children. Because then you just end up with like a bunch of kids getting taken away from their parents.
AM: In a way that’s happening now in states where agencies are authorized to step in and remove trans kids from affirming parents.
BG: With Ray, I am wary of state power because state intervention is a blunt instrument with a long history of abuse and selective application. I do not trust people holding the reins to be on our side on much of this. I would also argue that for the medical stuff, at least, it’s a relatively limited intervention: kids need to be able to get to a clinic and not have their parents throw out their meds. If forcing a particular hormonal trajectory on someone born with one set of sex characteristics is abuse, then forcing the same trajectory that happens to be endogenous on someone born with a different set of sex characteristics had better be in the same legal category. I don't think that any of the differences between these two cases is plausibly materially relevant. But do I have great optimism for the court's taking up that line? It depends which courts: I am pessimistic about courts generally.
AM: Priest builds her argument for care by noting that the psychological pain of forcing trans kids through endogenous puberties is connected to suicides rates that are ten times higher than cis kids, which would be a clear and immanent harm. One rejoinder to that has been that basing a right on suicidality alone is problematic, because it means authorizing states to intervene with any adolescent behavior linked to increased suicidality.
RB: I want to add that having the state intervene in an abusive situation is not the only societal remedy available. We help people get away from abusive situations by giving them resources for their physical and psychological needs so they have somewhere to turn to other than their abuser. So the status of an emancipated minor [who is legally freed from adult control] is really important because giving somebody the ability to get away from their abuser in whatever way they need is not about punishment, it's about helping the victim.
AM: I hear two complementary rationales for this new right. The first is that laws ought to limit disconfirming parental rights to prevent their trans kids from making medical decisions about their genders. The second is that when parents do it, it constitutes a kind of emotional and perhaps even physical abuse, and kids have a right to be free from that. I’m no lawyer but the first sounds aspirational, while the second is based on stopping an existing harm and seems like it would be easier to sell legally. It’s close to the example you used earlier of states limiting parents’ right to inflict “conversion therapy” on gay and trans kids. Courts seem generally more interested in trying to avoid an existing harm, than hand out new rights.
RB: Yeah, I think I agree with you. One of the state’s jobs is protecting us from other people arbitrarily interfering with us in harmful ways. It’s like a negative right we have And the right to not be abused seems like one of those everyone agrees on. Whether the state has to also help us achieve positive goods is more controversial.
AM: The problem is, what is “abuse” is a double-edged sword. As you know, beginning with Atty. Genl. Ken Paxton's notorious opinion KP-0401, Texas simply redefined affirming your trans child as child abuse and grounds to justify state intervention to remove kids from their parents’ home.
RB: Which is one of the reasons that I am a little anxious about the whole idea of the state intervening in cases of abuse rather than doing public health preventative things.
AM: Even if, say, one of the sanctuary states like California or Connecticut passed a law affirming the right to intervene, limit parental control, and allow kids in disconfirming families to access meds, it’s hard for me to visualize how the rest of that works. Accessing meds is a discrete event. But how does a court enforce a young person’s daily rights to things like buying girl clothes instead of boy’s, having their parents stop misgendering or mispronouning them, or get dropped off at Boys Scouts instead of Girl Scouts?
RB: Yeah. I definitely don't think the court is the only tool. And maybe it's not the right tool for this just because it makes me think about intimate partner abuse among adults, much of which is emotional abuse. That would be hard to outlaw. I don't know that there's a purely legislative solution to all kinds of interpersonal abuse. I agree that it’s not okay for parents to refuse to call their kids by the name and pronouns the kids ask for or force them into a performance of their assigned gender. But I'm actually not sure how or even whether to legislate something like this.
BG: We keep circling back to the question of state intervention. But the state is a blunt instrument and the family is a complicated institution. Parents can behave in a lot of shitty ways, some of which rise to the level of abuse, for which very heavy-handed state intervention is seen as appropriate. But there are a lot of ethical, political, legal, logistical, and practical problems in the state micromanaging parent-child relations.
In any case, the possibility of the state trying to do everything you laid out does not strike me as the problem that is before us in this political and cultural moment, when there is a big push to turn the state into the parents’ enforcer against young people using their existing freedoms.
AM: Of course I agree. We are in a moment politically when you can't force a white evangelical baker to bake a cake for a gay couple’s wedding, so there’s zero chance you're going to force the same guy to recognize his trans kid’s right to affirming medications. But as with gay marriage, progress sometimes means starting these discussions decades before they might be ready to bear fruit. In any case, I’m not sure I want to allow the Right to determine when we should begin exploring how we might help the many trans kids trapped in hostile families.
By the way, an interesting Washington Post poll found that only 31% of trans kids had undergone any kind of affirming care. The rest socially transitioned only.
RB: Giving a kid the right to change their name, pronouns, hair and clothes, legally is complicated, but letting them exercise some control over their lives to a minimal and harmless extent like that seems pretty obvious morally.
AM: Agreed. Thank you both very much.
Riki Wilchins writes on trans theory and politics at: www.medium.com\@rikiwilchins. Her two last books are: BAD INK: How the NYTimes SOLD OUT Transgender Teens, and Healing the Broken Places: Transgender People Speak Out About Addiction & Recovery. She can be reached at TransTeensMatter@gmail.com.