VLR and Lambda Host Symposium on Status of Transgender Medicine
Beginning on Thursday evening, February 6, and extending through the next day, Virginia Law Review Online and Lambda Law Alliance co-sponsored a symposium entitled “Justice in Transition: The Legal, Cultural, and Political Frontiers of Gender-Affirmative Care.” The event featured over a dozen speakers who weighed in on the history of transgender medical interventions and the increasingly popular bans on gender-affirming care.
Courtney Douglas ’25, editor-in-chief of VLR, began the symposium by observing how topical it became. As the Supreme Court decides Skrmetti, several states continue to ban gender-affirming care for minors, and President Trump issues more executive orders on transgender issues, this year’s symposium felt particularly timely. Professor Noa Ben-Asher of St. John’s University School of Law, framed the symposium around six questions: What is the legal doctrine? What is the role of the legal academy? What alternatives are there to resist? How do we respond to the medical discourse? How do we simultaneously address the moral condemnation? How do we collaborate?
Historian Dr. Jules Gill-Peterson was the keynote speaker for the symposium. She is an associate professor in the history department of Johns Hopkins University. Her address was largely centered around providing a timeline for the legal status of gender-affirming care in the U.S., but with a clear thesis: contemporary bans on this type of medical intervention are novel.
Gender-affirming care seems to have originated in Western Europe in the 1920s, particularly in Germany. It was slower to arrive in the U.S. because of more conservative clinicians who refused to offer it. But there was no legal concern over the interventions. Gill-Peterson alluded to a “mayhem theory” that may have dissuaded some doctors, but this never gained traction. The more significant force was hospital boards, many of which did not want to permit gender-affirming care through the 1960s. But at the same time, the ’60s and ’70s saw bureaucratic recognition of some treatments. For example, some welfare recipients had their surgeries covered under the theory that they were disabled, and gender-affirming care would help them secure gainful employment. State funding for these treatments was politicized in the ’70s, however, so access was restricted to those who could pay out of pocket. The next significant decade was the ’90s, during which Congress enacted two pieces of impactful legislation. First, the Americans with Disabilities Act excluded transgenderism. And second, anabolic steroids were classified as a Class III drug, limiting access to those who wanted hormone treatments. Since then, though, the Affordable Care Act encouraged many states to broaden access and coverage for gender-affirming care. What Dr. Gill-Peterson really wanted to convey was that the legality of these treatments was not questioned until very recently.
Over lunch on Friday, Professor Ben-Asher took questions from representatives of VLR and Lambda as well as audience members. They discussed how rhetoric around consent and regret links anti-trans and anti-abortion politics and also drew connections between contemporary anti-trans politics, Nazi Germany, and the Jim Crow South. Professor Ben-Asher said that part of the job of a law professor is to “call bullshit” and certainly made good on that promise.
Following lunch, Professors Naomi Cahn and Deborah Hellman moderated a panel addressing litigation against gender-affirming care bans. The panelists included Harper Sedlin, a senior staff attorney at the ACLU; D Dangaran, the director of gender justice at Rights Beyond Bars; and Chloe Fife ’22, who recently authored a paper on potential congressional action against state gender-affirming care bans.
The tenor of the panel was mostly one of clear-eyed optimism. The moderators invited the panelists to discuss how the current environment is impacting their work, to which Mr. Sedlin shared his efforts to “embrace an abundance, not scarcity, mindset.” He quipped, we now have enough trans, nonbinary, and intersex attorneys that “we can disagree with each other.” Director Dangaran added that there is a tendency to say that it has never been this bad—they countered that it almost always has been. This is an uphill battle, whose ever-present sense of urgency has been heightened by the current administration. Dangaran pointed out that useful precedents have been built up in recent years, and that courts’ rapid responses in issuing injunctions give them some a sense of hope.
In contrast, however, Ms. Fife, a trans woman, noted that she has relocated outside the country. Ms. Fife grew up in a conservative community in Utah and promised herself that she would never live in that type of fear again. She remains an active participant in the battle for trans rights, but from afar. When asked about her experience as a litigator, she emphasized the need to read trans people back into the Constitution.
Director Dangaran proposed looking beyond the Constitution for answers. They pointed out that what is happening now out in the world has been happening in prisons for a long time. But while there is a right in prisons to minimally adequate necessary care, no such analogue exists in the free world. Director Dangaran encouraged litigators to look to federal statutes like the Americans with Disabilities Act as a vehicle to attain such rights. The DSM-5 added a new diagnosis recently: gender dysphoria. Director Dangaran sees this as an opportunity to make an ADA accommodation argument based on gender dysphoria—an idea which they acknowledged as controversial but firmly believes could work.
Finally, the panelists were in consensus that litigation is not their only tool. Director Dangaran pointed out that as of now, adults still have access to gender-affirming care, meaning part of the solution could be creating more mutual aid funds. Ms. Fife stressed the value of acts of solidarity and community building. Mr. Sedlin noted that he has been pleasantly surprised by how many young people he has spoken with who have been recognized and supported by their communities as their genders. Make no mistake, the legal frontier is grim in many ways—but as the panelists discussed, there is hope, both within and beyond litigation.
The symposium concluded with a panel on prison and police abolition featuring Professors Ido Katri and Lihi Yona and attorney A.D. Sean Lewis. The panelists suggested that abolition involves both a negative component—reducing harm caused by police and prisons—and a positive project constructing alternative ways to maintain safety. The panelists focused on the harms facing transgender women in prison, including isolation, abuse, and insufficient or cruel medical care. The panelists said that trans individuals can conflict with the carceral logic of prisons, which are based around separating men and women.
As Professors Katri and Yona are Israeli, the panel also discussed the Israeli prison system’s treatment of Palestinians and the close interaction between Israeli and American prison systems. A trans client in Israel spoke over Zoom to recount her experience in Israeli prisons, describing the poor conditions and failures of reform. “The concept of prison belongs in the Middle Ages,” she said. Later, Professor Katri observed that American students are “in the heart of the empire,” so they can have a big impact internationally, but the panelists also emphasized that students should be strategic given the risks facing them today.
Professor Katri ended the symposium with closing remarks. Echoing many of the speakers, he identified what he saw as the “complete failure of gender identity as a legal category” and joked that “this might be the last trans conference.” He described the current pushback against trans rights as part of a broader decline of the present legal order—but he also observed that legal actors can contribute to whatever comes next.
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