COUNTERING A PHOBIC FRAME: UNDERSTANDING AND ADDRESSING GENDER-AFFIRMING CARE BANS

Legislatures, courts, and media outlets have manufactured legal and scientific uncertainty around gender-affirming care. This is the result of a phobic frame that vanishes the perspectives of minors and reduces decisionmakers’ confidence. This Note identifies that gender-affirming care bans should not be understood primarily as forms of sex discrimination, but instead as a form of unjustified impairment of minors’ self-determination. The solution, necessarily, must question and overturn assumptions about decisionmaking competency for minors, rather than relying on equal protection or a sex discrimination analysis like Bostock v. Clayton County. This Note argues that courts need only inquire into whether a minor is competent to decide about gender-affirming medical intervention because restrictions on minors’ bodily autonomy must be justified rather than accepted at face value.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School; Ph.D. Student, Columbia University, Department of History. Written with many thanks to Professor Elizabeth Emens for her advising and generosity in this process, to the December 2023 Law and Political Economy Junior Scholars Workshop, and with unthinkable gratitude to all my friends at Columbia (in alphabetical order, Isabel Bolo, Isidora Echeverria, Mikhal Kidane, Erika Lopez, Vayne Ong, Melanie Mignucci, Alice Park, Kate Reeve, Emma Solomon, Zakiya Williams Wells, among others) and beyond (Haja Kamara, Bianca Li, Abhishek Mehra, and many others) for their sustaining care, attention, and interest in combatting the fascist totalizing of gender and politics that suffuses life today. Particular love and gratitude are owed to Ale Canales and Minh Vu, whose brilliant minds and sharp political and theoretical instincts stayed with me through this writing.

Introduction

In a speech at the Conservative Political Action Conference in 2023, commentator Michael Knowles claimed that “[f]or the good of society, transgenderism must be eradicated from public life entirely,” though he later claimed he had not been calling for a genocide. 1 Kelly McClure, CPAC Speaker Says, “Transgenderism Must Be Eradicated,” While Claiming It Doesn’t Exist, Salon (Mar. 4, 2023), https://www.salon.com/2023/03/04/cpac-speaker-says-transgenderism-must-be-eradicated-while-claiming-it-doesnt-exist/ [https://perma.cc/F7RK-62L5] (internal quotation marks omitted) (quoting Michael J. Knowles). Knowles had also denied his language amounted to a call for genocide during his show, claiming “[T]ransgender people is not a real ontological category. It’s not a legitimate category of being . . . . They are laboring under a delusion and so we need to correct that delusion.” Michael Knowles Show, ‘The Trans Card’ Is a Weapon for Libs and Criminals, SoundCloud, at 06:28–06:45 (Feb. 28, 2023), https://soundcloud.com/michaelknowlesshow/ep1192 (on file with the Columbia Law Review). Reviewing a preliminary injunction from the Middle District of Alabama in August 2023, the Eleventh Circuit found that bans on gender-affirming care for trans youth did not violate the Equal Protection Clause. 2 See Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1227 (11th Cir. 2023). On March 2, 2023, the Tennessee legislature passed Senate Bill 0001, prohibiting healthcare providers from providing gender-affirming care (including puberty blockers and hormone replacement therapy) to minors. 3 See Adam Polaski, Tennessee Governor Signs Bill Banning Access to Lifesaving Medical Care for Transgender Youth, Campaign for S. Equal. (Mar. 3, 2023), https://southernequality.org/tennessee-governor-signs-bill-banning-access-to-lifesaving-medical-care-for-transgender-youth/ [https://perma.cc/U76P-B7GQ]. An analysis by NPR found state legislators had collectively introduced 306 bills targeting trans people, the vast majority focused on transgender youth. 4 Koko Nakajima & Connie Hanzhang Jin, Bills Targeting Trans Youth Are Growing More Common—And Radically Reshaping Lives, NPR (Nov. 28, 2022), https://www.npr.org/2022/11/28/1138396067/transgender-youth-bills-trans-sports [https://perma.cc/NW23-GHM9] (“[O]ver the past two years, state lawmakers introduced at least 306 bills targeting trans people, more than in any previous period. A majority of this legislation, 86%, focuses on trans youth.”). An observer might conclude that skepticism and hostility toward trans youth is the spirit of the times.

Such intense focus on youth should prompt pause: More general laws targeting the provision of gender-affirming care would include minors as well, but general laws targeting all trans people are a small portion of the laws being passed. 5 Id. Instead, legislators focus on youth because minors’ autonomy is limited, subject to the wills of parents and guardians as well as the wills of institutional actors (such as school officials, social workers, and so on). 6 See Laura A. Rosenbury, Between Home and School, 155 U. Pa. L. Rev. 833, 833 (2007) (noting that authority over the lives of children is distributed across parents, the state, and children themselves). One rationale for that may be that “children’s ongoing development is understood to compromise their ability to make good judgments on their own behalves.” 7 Emily Buss, Allocating Developmental Control Among Parent, Child and the State, 2004 U. Chi. Legal F. 27, 35. The result, then, is a law governing children that affords children nearly no authority over themselves. This materializes more precisely in the legal challenges surrounding trans youth, a space wherein legislators can ignore the voices of the most-affected population—trans minors with virtually no access to democratic processes except as mediated through their caretakers or other adults who are willing to listen.

This Note addresses this silencing by offering a paradigm for considering the rights and competencies of minors in decisions around gender-affirming care. This Note also seeks to address and unify two regulatory domains: the domain of state action, in which states are legislating against gender-affirming care, and the domain of parental rights, in which parents’ wishes trump their children’s. Part I provides historical and doctrinal context on the rights and duties of minors and parents, drawing on Bellotti v. Baird 8 443 U.S. 622 (1979) (plurality opinion). and Planned Parenthood v. Danforth. 9 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976). Some definitions are in order: Transphobia can provisionally be described as “negative attitudes (hate, contempt, disapproval) directed toward trans people because of their being trans. . . . Transphobia occurs in a broader social context that systematically disadvantages trans people and promotes and rewards antitrans sentiment. It therefore has a kind of rationality to it, grounded in a larger cisgenderist social context.” Talia Mae Bettcher, Transphobia, 1 Transgender Stud. Q. 249, 249 (2014) (citation omitted) (citing Patrick Hopkins, Gender Treachery: Homophobia, Masculinity, and Threatened Identities, in Rethinking Masculinity: Philosophical Explorations in Light of Feminism 95 (Larry May & Robert A. Strikwerda eds., 1996)).
Gender-affirming care “affirms diversity in gender identity and assists individuals in defining, exploring, and actualizing their gender identity, allowing for exploration without judgments or assumptions. . . . Gender-affirming care . . . [can include] psychoeducation about gender and sexuality (appropriate to age and developmental level), parental and family support, social interventions, and gender-affirming medical interventions.” Kareen M. Matouk & Melina Wald, Gender-Affirming Care Saves Lives, Colum. Univ. Dep’t Psychiatry, (Mar. 30, 2022), https://www.columbiapsychiatry.org/news/gender-affirming-care-saves-lives [https://perma.cc/9BUU-FQ3T]. This Note, unless otherwise qualified, uses children and minors interchangeably because the questions here regarding transition and rights specifically refer to the transition and rights of minors. Moreover, the age of pubertal onset may lead minors to make choices at an age when they may be considered a “child,” “teen,” or “young adult,” while there is no clear standard by which to make the distinction. Part II offers “the phobic frame” as a framework for analyzing the public discourse over minors seeking gender-affirming care. Part III argues that minors’ rights to gender-affirming care should be expansive and offers a test for courts to employ in deciding whether to judicially bypass a parent’s veto.