Morning Wire - Transgender Law Showdown | 10.8.23

Episode Date: October 8, 2023

Transgender laws for children vary state to state. When will the Supreme Court step in and rule on national guidelines? Get the facts first on Morning Wire. Learn more about your ad choices. Visit podcastchoices.com/adchoices

The Sixth Circuit Court of Appeals recently upheld Tennessee and Kentucky laws banning sex change medications and surgeries for children. That decision followed a similar circuit court ruling over an almost identical law in Alabama. But these kinds of bans have not fared nearly as well at the state and district level. Lower courts are currently blocking them from taking effect in five states. Legal experts say the Supreme Court is likely to step in soon. For this episode of Morning Wire, Daily Wire culture reporter Megan Basham, the legal debate over transgender treatment for children and how medical experts and detransitioners are reacting. I'm Georgia Howe with Daily Wire editor-in-chief John Bickley. It's October 8th, and this is your Sunday edition of Morning Wire.

So, Megan, when the Sixth Circuit Court ruling came down about 10 days ago, a lot of conservatives were hailing it as a watershed moment. That included Daily Wire personality Matt Walsh, who was instrumental in getting that Tennessee law in place. why do they view this particular ruling as a potential game changer? Yeah, they were definitely celebrating, and I think in part that's because it came on the heels of that 11th Circuit Court decision in Alabama. So so far we've had two different federal district judges place injunctions on these laws, and that's prevented them from going into effect. And then you've had two different circuit courts reverse those decisions. So I spoke to Tennessee State Senator Jack Johnson, who sponsored the Tennessee bill. And he said that what's so important about the decision is that it may put these federal district judges who have been blocking these laws on notice that if they circumvent the people's representatives, that they are likely to get overturned.

It's why the Sixth Circuit opinion is so important, not just because it allows my legislation, which will protect children, to go into effect, but it also sent a message to other federal district court judges across the country that they need to be wary. That is the term they used in the opinion. They need to be wary of injecting themselves and claiming some constitutional authority to intervene and interrupt the legislative process. And then think about this. You have potentially, you have one federal district court judge in some state and some district in the country who can stop a law from going into effect. And that is overturning the will of the voters via their duly and constitutionally elected

representatives. And that's something we should all be very concerned about. Now, as you might expect, the ACLU, which was one of the plaintiffs in this Tennessee case, well, they took a very different sort of lesson from the court's decision, but they also seemed to see it as an important moment in the national debate. They called it a devastating ruling. So Chase Strangio, the ACLU's deputy director for transgender justice, said these laws don't actually represent the will of the people because the Republican-led legislatures are the result of gerrymandering and voter suppression.

But I do want to note on that that polls do consistently show that the majority of Americans back these laws. To give you just one example, one poll found that 78% of Americans are on the side of these bans. Well, nevertheless, Strangio

told the nonprofit news outlet, democracy now that another problem was that the case was rushed. This is sort of akin to what we see, in the shadow docket at the Supreme Court, where you're just getting these rushed opinions in the course of perhaps 24 hours or less in some instances putting this decision from the district court on pause while the case is proceeding. And of course, this then allows the law to go into effect, but the court isn't close to the record. There were hundreds and hundreds of pages of expert

declarations, plaintiff declarations filed in this case. And in fact, the appeals court admits they may have got it wrong because it was rushed, which means, of course, they shouldn't have done this in the first instance. This was not a comprehensive briefed appeal. This was an abbreviated process wherein the court interjected itself. And again, in many cases, had no citations and admitted that it may have got it wrong. But the consequence of that is that hundreds of trans adolescents in Tennessee are now without the medical care that they need. So I noticed that almost immediately after the ruling was issued, the ACLU promised that they were looking into next steps. That may include appealing to the full panel of the Sixth Circuit. This was just a three-judge panel.

I believe a similar appeal was made a couple weeks ago in the 11th Circuit case in Alabama. We're waiting to see on that. So if that's the case, this may not be over for Kentucky and Tennessee, correct? Yeah, that is right. And of course, those three states are only the tip of the iceberg in this fight. We have 20 states currently with these kinds of laws on the books that are outlawing transgender surgeries, puberty blockers, cross-sex hormones, when it comes to children, not adults. And right now, there are 14 legal challenges in 14 of those states, and most of them are federal challenges. There are a couple that are state challenges. And as far as how courts are responding to them, it's really all over the map. Conservatives are pointing to the circuit court wins, but at the state and district level,

courts are blocking the laws from taking effect in Arkansas, Florida, Georgia, Indiana, and Montana. So you could argue that the trans lobby actually has the better record right now. Sarah Partial Perry, senior legal fellow at the Heritage Foundation, tells me transgender activists are likely to notch their own circuit level win here soon in Arkansas. And that was the first state to pass a ban like this back in 2021. In fact, the legislature there had to override then-governor Aza Hutchinson to get that done. So Perry told me that the Eighth Circuit is likely to uphold a district judge's decision to block that law because the three-judge panel previously upheld his injunction. So she doesn't think that's going to change, even if Arkansas's Attorney General is successful

in getting the full Eighth Circuit panel to hear the case. I would virtually guarantee that the Eighth Circuit, if they've already found this to be a discriminatory statute, and their rationale here, I have to say, is incredibly weak. Judge Jane Kelly, who's a Democrat Appointee was ready for a three-judge panel, and she said that the state statute had discriminated on the basis of transgender status, which she argued was the same as sex. Well, nothing in the case law at the Supreme Court level supports that argument. She's treating transgender status as the same as a sex-based discrimination prohibition. We've seen, for example, the Supreme Court used categories like race and race.

sex immutable characteristics. Those that we were told by the Supreme Court and Frontiero versus Richardson were given to us by, quote, accident of birth. Those particular provisions that we have nothing to do with have always been protected because they are subject to and vulnerable to these particular levels of discrimination. But transgender status goes to behaviors. It goes to subjective, interpersonal self-identification. Never has the Supreme Court utilized a heightened standard under the Constitution for individuals based on their gender identity.

I don't think once Judge Kelly's opinion makes it to the Supreme Court, if we see that happen, it's going to pass essentially legal muster. So as you probably guessed from that, Perry tells me it's extremely likely that the Supreme Court is going to step in. soon. I would be surprised if we don't see this, at least on an emergency petition for review, because the stakes are so high, because this involves kids and parents before the end of the term. Now, did she give any sense of what the main arguments the pro-trans side will bring? So there's really two major grounds that groups who oppose these laws have been looking to. The first one is parental autonomy. Do parents have the right to seek this treatment for their children if they believe it's in the child's best interest.

Now, that was the argument the dissenting judge and the Sixth Circuit case relied on. She said that these laws, and I'm quoting here, intrude on the well-established province of parents to make medical decisions for their minor children. And then there's the rationale that was used by the Eighth Circuit Court judge that preventing children from accessing puberty blockers or sex change surgeries amounts to discrimination on the basis of sex. As you heard, Perry doesn't really think that that's going to wash with SCOTUS. And interestingly, she told me that she thinks the court's decision to overturn Roe last year

could actually inform how they view these transgender bans. There's much discussion about the precise framework that the Supreme Court used last year in the watershed Dobbs v. Jackson decision that overturned the 50-year-old Roe versus Wade. that particular measure of constitutional substantive due process under the 14th Amendment required consideration of history and tradition on issues that ordinarily should be left to public debate and wanted to make sure ultimately that these were things the Constitution envisioned ultimately protecting or providing. The answer was no. In the Dobbs case, abortion was never, of those fundamental liberty rights. And I think when the Supreme Court gets these series of cases,

they will also say, no, the right to, quote, gender affirming care is not one of those fundamental liberty rights that our Constitution ever envisioned. So just to reiterate, Perry expects to see Scotus take this up and she expects that they're going to say this is a matter for lawmakers to decide not courts and that they probably will uphold those bans. Now, what's interesting is how little the medical literature or medical expertise seems to be playing into some of these decisions. Yeah, I noticed that too, and I think part of that may be because of just how quickly consensus on this issue is changing and not just in public opinion. Certainly in Europe, we've seen a move to a much more cautious approach when it comes to kids, the UK, France, and even more progressive Scandinavian countries, countries like Sweden and Denmark. They've all put the brakes on.

What you tend to see in the U.S. is arguments over which course of action is going to be more harmful. So those who back the bans point out that even hormones and puberty blockers can have permanent effects. Those opposed to the bans say children who aren't allowed to pursue these surgeries and medications may harm themselves. So this was Department of Health and Human Services Assistant Secretary Rachel Levine. For example, in a video posted to HHS's.

Instagram account. We often say that gender affirming care is health care. Gender affirming care is mental health care. And gender affirming care is literally suicide prevention care. Now, I spoke to board certified OBGYN, Gregory Marchon, and he says medical transitioning creates what he called forever patients. Imagine taking a young girl who knows about all the changes. Her body's about to undergo.

She's about to get fat in certain places. She's about to have emotional changes, grow hair in places. Things are about to smell bad. And you're going to come along and say, oh, I've got this magical drug that's just going to put things on hold until we can have time to decide. I mean, that's just a completely seductive thing, like selling floating objects to drowning people. Of course, anyone's going to go for that. But this is just such a cruel thing to do for a child. And of course, this is a complete lie, first of all, because if you go to the other gender, unfortunately, with the technology we have today,

You're never going to be able to have reproductive potential. You're never going to be able to either carry a baby. If you switch from man to woman or woman to man, you want to be able to get a woman pregnant. If you switch, we have no ability to give that. And if you look for examples of what the cosmesis looks like on genital surgeries, you know, as a surgeon, I can tell you, the cosmesis is really stomach turning right now. These surgeries are really in their intimacy. And the results, if you look, and I don't encourage you to look for these pictures on the internet,

But if you do, you'll find very, very few because there's very few people that have transgender genital surgery that are happy with the results because we just don't have that level of technology. Now, the ACLU says that all medical treatments come with negative side effects, so that shouldn't be used to prevent doctors from performing these procedures and offering these medications to kids. When we know that every medication has side effects, no intervention is perfect, but that doesn't mean that we have states banning that form of care. Dr. Marchand also told me that the threat of self-harm is not a standard doctors apply to any other field of medicine, and therefore should not be a consideration.

At the root of this is really that healthy people do not commit suicide because they have to wait to get what they want. For example, if I told you you were going to be the most famous reporter in the world in five years, you wouldn't consider killing yourself because you're going to have to wait those five. years, you would take the necessary preparation steps, do the things you need to do. So this is not a healthy person who simply is actually the other gender, and we don't realize it, who's saying they're going to kill themselves. This is somebody who has a real illness. And there's no other area of medicine where we would even for a moment put up with this type of insanity

saying that if someone's going to kill themselves, we better do what they want. You know, as a surgeon, if someone came to my office and said, if you don't give me a big bottle of pain medication, I'm going to kill myself. There's not a question of what to do that person needs hospitalization, that person needs counseling, that person does not need a big bottle of pain medication. And I do want to highlight that counseling point because Dr. Marchand says that what we're seeing is kids who have a host of issues that are being overlooked in favor of just accepting a self-diagnosis or a parent's diagnosis of being transgender.

All the time now we see a list of diagnosis for a patient who's autistic, depression, you know, substance abuse disorder, almost always in that list. Now we see, you know, gender dysphoric disorder or transgendered. So these are a lot of these children that are being sucked into this, have a lot of other medical diagnoses that we very often see. And in my opinion, I think they're missing treatment for serious psychiatric disorders instead being considered, you know, is just somebody who's transgender when that's not the case. And that's what's riding a very high suicide rate for these unfortunate children. I spoke to Laura Becker, who transitioned when she was 19. So she was technically an adult, but a lot of medical experts point out that that prefrontal

cortex area of the brain, that's the part that's responsible for long-term planning and controlling urges. Well, it's still developing at that age. And that's why that Oklahoma ban initially went up to age 26. And Becker says she was one of these misdiagnosed patients. There was complex trauma, there was complex social issues, autism, there were developmental issues that all resulted. in loathing of the body and a desire to change it. As many detransitioners like myself have shared, these procedures only made things worse because they were cosmetic solutions. They weren't actually treating the underlying social, institutional,

or relational problems that were causing the distress. So Becker now speaks at events like a GenSpect conference that's coming up in November, to try to increase awareness of patients like the patient she wants was, who are being misdiagnosed as transgender, when in fact they suffer from other mental health issues. And she feels that the big hospitals and medical associations that are promoting gender transitioning for children or even young adults aren't heeding the warnings of people like her.

I don't feel that they really have the patient's best interest at heart, especially the more vulnerable to patients, those with trauma and the foster care system or who have autism, which is the population that we're seeing most likely to adopt a trans identity. I feel like there's more interest in social approval that this is seen as a social civil rights issue. And they're not really listening to the patients such as detransitioners who have been harmed and what could be done to make this better. So I think just really important to remember the real people.

and often the very real pain behind all of these court cases and national debates. You know, I think if we had time machines to go back even just five years, people would be shocked that this issue became as big as it is today. Yeah. Megan, thanks so much for reporting. Anytime. That was Daily Wire Culture reporter, Megan Basham. And this has been a Sunday edition of Morning Wire.