Author archives: Peter Sprigg

Gender-Neutral Intersex Passport Case May Advance Larger Transgender Goals

by Peter Sprigg

May 22, 2020

In a decision on May 12, the U.S. Court of Appeals for the Tenth Circuit ruled that the State Department should reconsider its refusal to grant a gender-neutral passport to a plaintiff with an intersex condition who identifies with a “non-binary” gender.

An “intersex” condition is a biological condition in which one or more of the biological indicators of sex does not develop in the typical male or female way. It is completely different from a “transgender” condition, in which an individual does not identify psychologically with his or her biological sex at birth. True intersex conditions are rare; but transgender identification is rapidly growing.

There is a proverb which warns, “Once the camel gets his nose in the tent, his body will soon follow.” What seems like a small intrusion can quickly become a large one. I fear that metaphor may apply to the legal fight over “gender-neutral” passports.

Although several news outlets covered the story, Courthouse News Service was the most thorough in describing the plaintiff:

The birth certificate Zzyym was given in 1958 originally used the name Brian Orin Whitney and left the gender line blank because they were born with “ambiguous external sex characteristics.” Raised male, Zzyym was 5 when they underwent medically unnecessary corrective surgery at their parents’ request.

In 1995, the six-year Navy veteran changed their name to Dana Alix Zzyym.

The complaint that was filed by Zzyym elaborates:

Zzyym’s parents decided to raise Zzyym as a male, so the original birth certificate’s blank for sex was filled in as “male.” The State Department has treated this birth certificate as the original.

Zzyym lived as a male until adulthood. As an adult, Zzyym explored living as a woman and obtained a driver’s license identifying as female. But Zzyym grew increasingly uncomfortable living as a woman and eventually identified as a nonbinary intersex person. While identifying as intersex, Zzyym obtained an amended birth certificate identifying the sex as “UnKnown.”

According to one physician quoted in the court opinion, Zzyym did not merely “explore” living as a woman; he “has had surgery for transition to female genitalia.”

Zzyym applied for a passport—and requested that his sex be listed as “X.” (I will use male pronouns for Zzyym, since that is how he was identified on his original birth certificate, and in a photograph released by Lambda Legal, he appears to be conventionally male except for the hair on the top of his head being dyed blue.) The State Department refused, stating that U.S. passports may list only “M” (for Male) or “F” (for Female) as the passport holder’s sex. (This initial application and denial took place in 2014—under the administration of President Barack Obama and Secretary of State John Kerry.)

As the court acknowledged, “The State Department … noted that it had offered to produce a passport with an ‘F’ (matching Zzyym’s original Colorado driver’s license) or an ‘M’ (matching the original birth certificate).” However, the unprecedented “X” designation was refused.

News coverage made the Tenth Circuit decision appear to be a defeat for the State Department—but that is not the case. The District Court had ruled in favor of Zzyym outright, issuing “a permanent injunction against enforcement of the binary sex policy” with respect to Zzyym. The Tenth Circuit vacated this lower court decision.

Instead, the unanimous three-judge panel issued a more nuanced (but still flawed) ruling. The State Department had listed five reasons for upholding its binary-sex policy for passports. The court (in an opinion written by Judge Robert E. Bacharach, an Obama appointee) rejected three of these reasons, saying that the record of the case did not support them.

However, the panel also ruled that “the State Department had statutory authority to require applicants to identify their sex as male or female,” and that two of the five reasons for the policy were supported by the record. One might think that “statutory authority” and even one good reason would be enough to sustain the policy. But instead, the court said the State Department should reconsider to determine whether two reasons instead of five constitute enough justification.

The key error in the Tenth Circuit decision was its assumption that people with an “intersex” condition are neither male nor female. For example, the court stated that “most state identification documents pigeonhole[] everyone as male or female even though some people are neither.” They also asserted that requiring Zzyym to identify himself as male or female would amount to “forcing intersex individuals like Zzyym to inaccurately identify themselves” (emphasis added). The opinion even declares, “The State Department acknowledges that some individuals are born neither male nor female.”

If true, this is an unfortunate mischaracterization of what an “intersex” condition is. As even one intersex activist, Jonathan Leggette, has acknowledged, “Intersex traits can involve genitalia, chromosomes, hormones, and other secondary sex characteristics.” If even one of these characteristics develops in an abnormal way, that constitutes a “disorder of sexual development” (DSD), the medical term for an intersex condition. If, say, 98% of a person’s sex-related characteristics are normal male characteristics, and 2% are abnormal or appear to be those considered typical of a female, it would hardly make sense to say such a person is “neither male nor female.” Instead, that individual is clearly a male, but one with a DSD.

Anne Fausto-Sterling, a biologist at Brown University, has been widely quoted as asserting that up to 1.7% of the population is intersex. However, this claim has been challenged by others who point out that many who fall under Fausto-Sterling’s broad definition of “intersex” are people who may live their entire lives without even being aware that they have an intersex condition (such as an abnormality in their chromosomal make-up). The percentage of people who have any real ambiguity about their biological sex is far smaller—being found, by one estimate, in only 2 out of every 10,000 births.

Even among those with such a genuine intersex condition, however, the number who have both male and female characteristics in nearly a 50-50 ratio is very small. There are dozens of different DSDs that have been identified; of those, only one comes close to this type of ambiguity. It is known as an “ovotesticular” DSD (or “true gonadal intersex” or “true hermaphroditism”) because those with this condition have both ovarian and testicular tissue. This is the rarest DSDonly about 500 cases have ever been reported in the medical literature. And yet even among these, “Most affected individuals have a 46, XX chromosomal [typical female] make-up …, which normally results in female sexual development.”

The Tenth Circuit decision reports that Zzyym “was born with both male and female genitalia.” That is a stronger assertion than the one found in Zzyym’s original complaint in the District Court, which was merely that “Zzyym was born intersex, with ambiguous genitalia.” We don’t know if that is a reference to “ovotesticular DSD,” since that more technical term is not used in the opinion.

In one sense, the ultimate disposition of Zzyym’s case poses little danger of setting a major precedent for others, since the number of people “with both male and female genitalia” is tiny. People with such a birth defect are deserving of our compassion.

However, this case, demanding a “gender X” passport for someone with a biological “intersex” condition, is merely the camel’s nose in the tent. In asserting that intersex people are “neither male nor female,” the court fails to note that most people with intersex conditions are perfectly content to identify as either male or female, notwithstanding their physical problems. The only reason Zzyym felt the need to sue the State Department is because—unlike most “intersex” people—his psychological “gender identity” is “non-binary,” meaning “neither male nor female.”

But declaring one’s “gender identity” to be “non-binary” is merely the latest fad in the larger “transgender movement.” Just as most “intersex” people are not “non-binary,” most of those who choose to identify as “non-binary” do not have a biological intersex condition but are entirely normal with respect to their biological sex at birth.

Transgender activists would like for anyone who identifies as “non-binary” to be able to get identification documents with an “X” gender marker. Winning one for an intersex person would only be the first step toward that even more radical goal.

The State Department should continue to refuse Zzyym’s request.

Amidst a Global Pandemic, California Legislators Seek $15 Million for Transgender Hormone Therapy and Dance Classes

by Peter Sprigg

May 13, 2020

Peter Sprigg, FRC’s Senior Fellow for Policy Studies, submitted the following letter on May 12, 2020, to the California Legislature in opposition to AB 2218, the “Transgender Wellness and Equity Fund.”

***

Dear California Legislators:

I am writing to urge that you oppose Assembly Bill 2218, which would establish a “Transgender Wellness and Equity Fund” with an appropriation of $15 million. I am writing on behalf of Family Research Council (FRC), a national non-profit public policy organization representing tens of thousands of Californians, and whose issue portfolio includes human sexuality.

In particular, we believe that it is inappropriate to provide taxpayer dollars

to a hospital, health care clinic, or other medical provider that currently provides gender-affirming health care services, such as hormone therapy or gender reassignment surgery, to continue providing those services, or to a hospital, health care clinic, or other medical provider that will establish a program that offers gender-affirming health care services . . .

No “hormone therapy” (neither puberty-blocking hormones nor cross-sex hormones) has been approved by the U.S. Food and Drug Administration (FDA) for the purposes of facilitating gender transition. Fenway Health, which serves the LGBT community in Boston, writes that “no medications or other treatments are currently approved by the Food and Drug Administration (FDA) for the purposes of gender alteration and affirmation.” A 2018 article in the journal Transgender Health reiterated that “there are no medications or other treatments that are FDA-approved for the purpose of gender affirmation.” And the American Medical Association’s Council on Science and Public Health reported that “steroidal hormones,” “GnRH analogs” (puberty blockers) and “antiandrogens” are all used “off-label” for “gender re-affirming therapy”—because their use “lacks scientific evidence.” While it is not illegal to use drugs “off-label” in certain instances, the lack of proof that using these hormones for gender transition is safe and effective is a strong argument against the state funding these largely experimental treatments.

Similarly, evidence does not support the assertion that gender reassignment surgery is “medically necessary.” In 2016, the Centers for Medicare & Medicaid Services under the U.S. Department of Health and Human Services (CMS) declined to issue a new “national coverage determination” (NCD) that would mandate coverage for such surgery under Medicare, declaring that “there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes.” CMS examined 33 studies, but found that all had “potential methodological flaws,” and that “[o]verall, the quality and strength of evidence were low.”

Even the evidence that is available does not demonstrate that gender reassignment surgery is effective at achieving its fundamental goal—improving the long-term mental health of individuals. Patients in the best studies “did not demonstrate clinically significant changes” after surgery. One of the strongest studies, out of Sweden, showed a suicide rate among post-surgical transgender patients that was 19 times that of the general population.

In addition to directly funding procedures of questionable medical value (as well as “guided meditation” and “dancing, painting, and writing classes”), this bill would also fund programming that essentially amounts to ideological indoctrination, in the form of “trans-inclusive best practices” and the creation of “educational materials” and “capacity building training.”

It also seems ironic that the sponsors of this legislation, who I presume would support laws to prohibit “discrimination” on the basis of “gender identity,” are actually mandating such discrimination by giving favored treatment to organizations that meet a numerical quota of officers, board members, or a fiscal sponsor who themselves “identify as TGI” (“transgender, gender nonconforming, or intersex”).

Finally, it seems inconceivable that during a crisis caused by a global pandemic, with tax revenues shrinking and emergency expenditures rising, the California Legislature would even consider investing time or money in a program that would have to be considered a luxury even in normal times, and even if it were worthwhile (which, for the reasons cited above, I believe it is not). When, at this writing, nearly 70,000 Californians have become infected with the novel coronavirus and nearly 2,800 have lost their lives, it would reflect misplaced priorities to be appropriating money to support the programs listed above.

I urge you to oppose AB 2218.

Sincerely,

Peter Sprigg
Senior Fellow for Policy Studies
Family Research Council
Washington, D.C.

Britain May Ban Gender Transition for Minors

by Peter Sprigg

April 28, 2020

A clinic in the United Kingdom has been the subject of controversy amid accusations that it rushes minors with gender dysphoria into gender transition medical procedures without adequate screening. Now, a cabinet minister has indicated that the government might ban such treatments for minors altogether.

Liz Truss, the Minister for Women and Equalities, told a parliamentary committee that the Conservative government would propose amendments to the nation’s Gender Recognition Act. The Act, first adopted in 2004, specifies the steps a person must take in order to change one’s legally recognized gender. However, instead of loosening the requirements, as transgender activists had urged, the government appears poised to tighten them.

Truss said that one of three priorities would be:

… making sure that the under 18s are protected from decisions that they could make, that are irreversible in the future.

I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.

Truss did not provide further details. But since relatively few minors undergo actual gender reassignment surgery, observers assume that the “irreversible decisions” the government is concerned about include the use of puberty-blocking hormones in young adolescents and cross-sex hormones in older teens.

In the U.S., efforts to ban such procedures for minors stalled this year in the South Dakota legislature after businesses and Gov. Kristi Noem expressed concern about the bill. In Alabama, a bill was advancing toward passage until the coronavirus pandemic prematurely ended the state’s legislative session.

Under Britain’s system of socialized medicine, known as the National Health Service (NHS), a limited number of medical clinics provide gender reassignment services. The only clinic serving minors is the Gender Identity Development Service (GIDS) of the Tavistock and Portman NHS Foundation Trust, with offices in London and Leeds.

After a three-year trial, the GIDS decided in 2014 to significantly expand its services to minors—including giving puberty blockers to children as young as nine. Since then, GIDS has seen a considerable increase in the number of children referred to them. But the clinic is also facing heightened criticism.

An Oxford professor, Dr. Michael Biggs, says that the clinic has downplayed the negative health effects of puberty blockers. Britain’s Sky News reported late in 2019 that as many as 35 psychologists have resigned from the GIDS over the last three years, with at least a half dozen speaking out against its practices—but anonymously, for fear of retaliation.

However, one retired psychotherapist, Marcus Evans, did speak out publicly after resigning from Tavistock’s Board of Governors. Evans warned:

When doctors always give patients what they want (or think they want), the fallout can be disastrous, as we have seen with the opioid crisis. And there is every possibility that the inappropriate medical treatment of children with gender dysphoria may follow a similar path.

… Tavistock officials … [seem to] have bought into the idea that transition is a goal unto itself, separate from the wellbeing of individual children, who now are being used as pawns in an ideological campaign.

This is the opposite of responsible and caring therapeutic work, which is based on the need to re-establish respectful but loving bonds between mind and body.

Victoria Gillick, a critic of the GIDS, predicted in 2014:

There will, in the future, be an awful lot of doctors who will be sued by older men and women for having done something to them before they were of an age to understand what the significance of it was.

That prediction came true this year with the filing of a lawsuit against the clinic. Originally filed by psychiatric nurse Susan Evans (wife of Marcus Evans) and the unidentified mother of a 15-year-old autistic girl awaiting treatment at the clinic, the suit has been joined by a 23-year-old woman, Keira Bell. She received hormone treatment at the clinic as a teenager but has now “de-transitioned” to reclaim her biological identity as a female. Bell declared:

I have become a claimant in this case because I do not believe that children and young people can consent to the use of powerful and experimental hormone drugs like I did.

I believe that the current affirmative system put in place by the Tavistock is inadequate as it does not allow for exploration of these gender dysphoric feelings, nor does it seek to find the underlying causes of this condition. 

Hormone-changing drugs and surgery does not work for everyone and it certainly should not be offered to someone under the age of 18 when they are emotionally and mentally vulnerable.

The treatment urgently needs to change so that it does not put young people, like me, on a torturous and unnecessary path that is permanent and life-changing.

The U.K. government appears to agree. When state legislators in the U.S. are able to convene again, they would be wise to follow the British example and prohibit “torturous and unnecessary” gender transition medical procedures for minors.

Coronavirus-Related Change in FDA Blood Donor Policy Threatens Public Health Instead of Protecting It

by Peter Sprigg

April 13, 2020

On April 2nd, the U.S. Food and Drug Administration (FDA) announced an easing of restrictions on blood donors. Concern has been raised that there may be a shortage of donated blood due to the cancellation of blood drives as a result of current social distancing rules.

Political pressure, not medical necessity, may have driven the most significant of the changes, however—involving the “deferral” as blood donors of men who have sex with men (“MSM”). Since 2015, the FDA has recommended excluding as blood donors any man who had sex with another man in the last 12 months. That deferral period has now been reduced to three months since the last male-male sexual contact.

Until 2015, however, MSM were subject to a lifetime deferral, prohibiting men from giving blood if they have had sex with another man even once since 1977. In the early days of the AIDS epidemic, it was discovered both that HIV (the virus that causes AIDS) could be transmitted via blood transfusions and that men who have sex with men are at extraordinarily high risk of being infected. The lifetime ban was imposed in 1985 and lasted for 30 years.

LGBT activists, however, lobbied vigorously for lifting the deferral because of the “stigma” it imposed on MSM (note: the restriction does not apply to women who have sex with women, as they are not at significantly elevated risk of HIV). Family Research Council was active in opposing the change to the lifetime deferral.

Despite the dramatic change from a lifetime deferral to a 12-month one, LGBT groups have continued to lobby for further easing of the restriction. Almost as soon as the coronavirus was declared a national emergency, they jumped to exploit the crisis as an opportunity to advance their agenda. GLAAD posted a petition demanding that the limit on donations by MSM be lifted altogether. Although an FDA spokesman told the Washington Blade on March 19 that the restriction remained in place, only two weeks later it was revised, “[a]fter weeks of pressure from GLAAD and others.”

The Centers for Disease Control and Prevention (CDC) acknowledge that “Gay, bisexual, and other men who have sex with men are the population most affected by HIV in the United States. In 2017, adult and adolescent gay and bisexual men made up 70% … [of] new HIV diagnoses in the United States (US) and dependent areas.” And this is despite the fact that men who have ever had sexual contact with men represent only about three percent of the population. Prior to removing the lifetime ban in 2015, the FDA noted that HIV prevalence among MSM is “60 times higher than the general population in the U.S., 800 times higher than first time blood donors and 8000 times higher than repeat blood donors.”

It’s not as though men who have sex with men are going to be the solution to any potential blood shortages anyway. Out of that 3 percent of the population, one must still subtract any who have had male-male sexual contact in the last three months, and subtract any of this high-risk population who have ever had a positive test for HIV. The remainder would be so tiny that it would hardly make a measurable impact on the blood supply—except for making it somewhat more dangerous.

The most troubling part of the FDA’s announcement was where it said, “These changes are being put forth for immediate implementation and are expected to remain in place after the COVID-19 pandemic ends.” It would be a tragic irony if a public health crisis cements in place a policy that threatens the public health instead of protecting it.

Off-Label Use of Drugs Are Fine for Gender Transitions, but Not for Coronavirus, Say Liberals

by Peter Sprigg

March 31, 2020

Liberals and the media have been criticizing President Trump for touting the possibility of using some anti-malarial drugs to fight the coronavirus. Chloroquine, hydroxychloroquine, or a “drug cocktail” combining one of those with the antibiotic azithromycin have been proposed as possible drugs to prevent and/or treat the coronavirus, and what the Washington Post referred to as “tantalizing early results” of research showed that they might have promise.  

However, although these drugs have been around and used safely against malaria for decades, they have not yet been tested and proven safe and effective for use against the coronavirus. This has led to shock and outrage on the part of some. The Post’s headline read, “Trump keeps touting an unproven coronavirus treatment,” and their article reported:

The effort has raised concerns among health experts about safety risks — including the danger of fatal heart arrhythmia and vision loss associated with the drugs — and of raising false hopes in the American public.

In fact, the Post was alarmed enough to print an editorial on the subject as well, explaining:

Widespread testing for drug safety and efficacy is essential … Normally in the United States, a set of controlled clinical trials would be required before a drug is approved by the Food and Drug Administration . . .

A Bloomberg headline read, “Trump Pushes an Unproven Coronavirus Drug,” and the article opens with this:

A tiny trial of a malaria drug may or may not have helped several patients in France fight off their coronavirus infections. The FDA has said it needs more study. Some expert doctors are skeptical. President Donald Trump is all for it.

Slate downplayed the drugs’ potential, saying, “Trump cited a report in a scientific journal that only studied 20 patients and was not a controlled clinical trial.” And the left-wing magazine Mother Jones headlined, “Trump Keeps Promoting Unproven Drugs: The cocktail carries significant risks and may not fight the coronavirus.”

It is true that the “off-label” use of a drug means that it has not been scientifically proven to be safe and effective for that particular condition. Such use is not illegal, however—and is fairly common. It has been estimated that one in five prescriptions written in America is for an off-label use.

And liberals have been far more enthusiastic about “off-label” use of some drugs—if they support one of their ideological pet projects.

The Off-Label Use of Drugs for Gender Transition

Take gender transition medical procedures, for example. Pre-teens who experience “gender dysphoria” (distress regarding their biological sex) are increasingly being treated with a regimen featuring puberty-blocking drugs (such as Lupron), followed by cross-sex hormones (testosterone or estrogen) followed by gender reassignment surgery.

These interventions are touted with terms like “evidence-based” and “standard of care”—so it might surprise some people (including the patients subjected to them) that all of these are “off-label” uses of such drugs. Puberty blockers, for example, are intended (in children) to treat a medical condition called “central precocious puberty,” in which the child begins to show the biological signs of puberty prematurely, at an age far younger than would normally be expected. The drugs stop the physical progression of puberty until they are removed at a more normal age for such development. The effect of their use to stop normal puberty, followed by their withdrawal at an older age or when beginning to take cross-sex hormones, has not been well-studied.

Sex hormones like estrogen are officially used to treat symptoms of menopause or certain cancers. However, an article in the Journal of Sexual Medicine reported, “Long-term effects and side effects of cross-sex hormone treatment in transsexual persons are not well known.”

Gender reassignment surgery (while not subject to the same testing as medications) has also not been proven safe and effective. The Centers for Medicare and Medicaid Services in 2016 found that “there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes,” in part because patients in the best studies “did not demonstrate clinically significant changes” after surgery.

Indeed, if you look closely, advocates of gender transition medical procedures do not even try to deny this. Fenway Health, which serves the LGBT community in Boston, writes that “no medications or other treatments are currently approved by the Food and Drug Administration (FDA) for the purposes of gender alteration and affirmation.” A 2018 article in the journal Transgender Health reiterated that “there are no medications or other treatments that are FDA-approved for the purpose of gender affirmation.” And the American Medical Association’s Council on Science and Public Health reported that “steroidal hormones,” “GnRH analogs” (puberty blockers) and “antiandrogens” are all used “off-label” for “gender re-affirming therapy”—because their use “lacks scientific evidence.”

Trusting Ideology Over Science

The “off-label” use of a drug—any drug—may sometimes be justified, but should always be pursued with caution. However, there is one big difference between the drugs President Trump has shown enthusiasm for and the drugs that social liberals so eagerly tout. The coronavirus causes very real physical disease, which is killing more and more Americans every day. Expediting the experimental “off-label” use of malaria drugs may be justified because of the massive scope of the public health problem we face.

The off-label use of drugs for “gender transition” is quite different. Not only is there no comparable public health crisis—there is not even a physical illness that is being treated. Neither puberty nor being biologically male or female is a “disease.”

Liberals should be careful showing self-righteousness about putting “our trust in the scientists.” Their hypocrisy is showing when it comes to the transgender movement.

Do Puberty-Blocking Drugs Make Transgender Kids Less Likely to Commit Suicide, or More?

by Peter Sprigg

February 13, 2020

Puberty blockers” are hormones originally intended to deal with “precocious puberty,” in which a child experiences the physical signs of puberty prematurely. Now, however, puberty blockers are being used as a treatment for “gender dysphoria.” The theory is that a child who is already unhappy with his or her biological sex may become even more unhappy when his or her body begins to develop.

The most extreme claim is that transgender children forced to undergo normal puberty will kill themselves. Into this debate came a new academic study published in the Pediatrics medical journal that resulted in headlines like these: 

There’s only one problem. These headlines are wrong.

The word “suicide” implies a fatality. The Pediatrics study was not a study of suicide—because none of its subjects were dead. It was based upon answers given in the 2015 U.S. Transgender Survey.

The key outcome referenced in the article was “lifetime suicidal ideation.” This means thinking about committing suicide. The finding that those who received puberty blockers had lower “lifetime suicidal ideation” than those who wanted them but did not receive them got the attention because it was the only one that reached the level of “statistical significance.”

However, “lifetime suicidal ideation” was only one of nine mental health outcomes that were listed in the study.

On four of the nine outcome measures—nearly half—the outcomes for those who received puberty blockers were worse than for those who did not. Most of these differences were small, but one figure jumped off the page. Those who received puberty blockers were twice as likely to have had a suicide attempt resulting in inpatient care (i.e., hospitalization) in the last 12 months as those who did not (45.5 percent vs. 22.8 percent). While we cannot reach definitive conclusions because of the small numbers involved, this raises important questions that are at least worthy of further research.

Also, the lifetime rate of suicidal ideation for those who received puberty blockers were lower than for those who didn’t—but it was still astonishingly high, at 75 percent. This hardly suggests that administering puberty blockers makes most children with gender dysphoria mentally healthy.

The authors acknowledge the study’s design “does not allow for determination of causation.” But they go further, raising doubt that puberty blockers cause lower rates of suicidal ideation—because it may be that people with suicidal ideation were simply considered poor candidates to receive puberty blockers.

Let’s be clear—we cannot conclude from this study that children who take puberty blockers are more likely to commit suicide than those who don’t.

But we also cannot conclude that they are less likely to commit suicide—notwithstanding the breathless media coverage.

Legislators considering restrictions on radical gender transition procedures for minors should make those decisions based on the harmful physical effects and risks of those interventions, many of which are well-known—not based upon the misinterpretation of psychological studies whose implications are far from clear.

The Evidence Suggests Gender Transition Procedures for Minors are Experimental

by Peter Sprigg

February 13, 2020

Several states have introduced bills that would prohibit certain physical procedures that alter the normal development or body of a child or adolescent for the purpose of facilitating a “gender transition.” These laws (sometimes called “Vulnerable Child Protection Acts”) would ban the use of puberty-blocking drugs, cross-sex hormones, or gender reassignment surgery in minors.

One of the arguments raised by opponents is that these procedures should not be restricted because they represent a standard of care that is “evidence-based.” “Evidence-based” is something of a buzzword in medicine, indicating that medical practices should not just be based on opinion (even “expert” opinion), but on sound scientific research.

But just how good is the “evidence” cited in support of gender transition procedures—especially for minors?

The Endocrine Society’s Influential Guidelines

One of the most recent and influential sets of guidelines for the medical care of transgender people was published in 2017 by the Endocrine Society (W. Hembree et al., “Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline,” Journal of Endocrinology & Metabolism 102(11), November 2017, p. 3869-3903). This document explicitly sought to adopt an “evidence-based” approach:

The task force followed the approach recommended by the Grading of Recommendations, Assessment, Development, and Evaluation group, an international group with expertise in the development and implementation of evidence-based guidelines.

The Endocrine Society issued specific guidelines in five separate areas:

  1. Evaluation of youth and adults (5 guidelines)
  2. Treatment of adolescents (6 guidelines)
  3. Hormonal therapy for transgender adults (4 guidelines)
  4. Adverse outcome prevention and long-term care (7 guidelines)
  5. Surgery for sex reassignment and gender confirmation (6 guidelines)

Evaluating the Quality of the Evidence

The key question is—what is the quality of the evidence in support of the guidelines? I decided to examine that issue.

There are three types of guidelines:

  • An “Ungraded Good Practice Statement”—essentially supported by no evidence (beginning “We advise . . .”)
  • A “weak recommendation” (beginning “We suggest . . .”)
  • A “strong recommendation” (labeled “We recommend . . .”)

Only with the strong recommendations does the task force express “confidence that persons who receive care according to [them] … will derive, on average, more benefit than harm.”

Then for each of the “recommendations” (weak or strong) they give a rating of the “quality of the evidence” in support of that recommendation, on a four-point scale: very low, low, moderate, or high.

How Strong is the Evidence Regarding Gender Transition Procedures for Minors?

If we omit category 3 (which applies only to adults), there are 24 guidelines that are generally relevant to the procedures at issue in Vulnerable Child Protection Acts—puberty blockers, hormones for adolescents, and surgery.

Of these 24 guidelines:

  • 5 are ungraded good practice statements (no evidence);
  • 2 are weak recommendations with very low evidence; and
  • 9 are weak recommendations with low evidence.

That means only 8 of the 24 “guidelines” are even “strong” recommendations—one third of the total. Of those:

  • 2 are supported by very low evidence;
  • 5 are supported by low evidence; 
  • Only 1 is supported by even “moderate” evidence;
  • None are supported by “high quality” evidence.

Evaluating the Recommendations

Several of the “strong recommendations” and other guidelines relate to controlling the potential negative side effects of gender transition, rather than actually recommending the transition procedure.

For example, the lone guideline supported by even “moderate” evidence was one warning patients to look into “fertility preservation” (some method of storing sperm or eggs), because the procedures may permanently sterilize the individual:

1.5. We recommend that clinicians inform and counsel all individuals seeking gender-affirming medical treatment regarding options for fertility preservation prior to initiating puberty suppression in adolescents and prior to treating with hormonal therapy of the affirmed gender in both adolescents and adults.

Some of the guidelines actually support what Vulnerable Child Protection Acts would do. Very few procedures which actually follow the Endocrine Society guidelines would also violate South Dakota’s VCPA, HB 1057.

For example, they recommend strongly (with low evidence) initiating cross-sex hormone treatment only after confirming “sufficient mental capacity to give informed consent, which most adolescents have by age 16 years” (2.4). (Guideline 2.5 says there may be exceptions to this, but it is supported by “very low” evidence.)

In addition, a “weak recommendation” with low evidence (5.5) suggests “that clinicians delay gender-affirming genital surgery … until the patient is at least 18 years old.”

Another weak recommendation (supported by very low evidence) suggests the timing of breast surgery be determined case by case, because “There is insufficient evidence to recommend a specific age requirement.” However, the lack of evidence would suggest that such radical, body-altering surgery should be postponed to a later age if possible, not accelerated.

Meanwhile, the key guidelines in support of puberty suppression (2.1 and 2.2) are only weak recommendations, supported by low evidence. The strong recommendation that some patients (over age 18) be referred for genital surgery is supported by “very low” evidence.

A Weak Evidence Base

In summary, the claim that these treatments are “evidence-based” is misleading, because the quality of the evidence in this field (even for the Endocrine Society’s “strong” recommendations) is low.

Until the quality of the evidence becomes higher, gender transition procedures must be considered experimental procedures at best.

FRC Opposes Guidance Attacking Sexual Orientation Change Efforts in Virginia

by Peter Sprigg

December 12, 2019

Editor’s Note: The following is a comment submitted on December 11, 2019 by Peter Sprigg on behalf of Family Research Council in opposition to a proposed regulation against so-called “conversion therapy” by the Virginia Board of Medicine.

I write in opposition to the proposed “Guidance Document on the Practice of Conversion Therapy,” and urge the Board not to adopt this policy.

Policy Statements Are Not Science

The guidance document is correct in stating, “Leading professional medical and mental health associations have issued position and policy statements regarding conversion therapy/sexual orientation change efforts …” However, “position and policy statements” are not the same as actual scientific findings. Unfortunately, “position and policy statements” are often the product of a highly-politicized process that is not representative of the professional population for whom they claim to speak.

Consider the first organization cited in the guidance document, the American Medical Association (AMA). According to a 2012 media report, there are 1.2 million physicians and medical students in the United States. Only 17 percent (217,490) are members of the AMA. (The AMA claims “approximately 250 thousand members” as of December 31, 2018.) Furthermore, AMA “position and policy statements” are not voted on by their entire membership, but rather adopted by a “House of Delegates” which consists of only 640 members as of June 2019. That means only one-quarter of one percent of all AMA members—and only a little more than one in every two thousand U.S. doctors—approve AMA position and policy statements.

The AMA press release announcing the new House of Delegates policy stated, “The AMA heard testimony, including first-hand accounts, regarding the significant harms triggered by conversion therapy …” Unfortunately, it has been documented that such “first-hand accounts” by LGBT activists are often implausible and sometimes demonstrably fabricated. What was not included in the AMA press release was any indication that the organization had undertaken a systematic review of the scientific evidence regarding either the effectiveness of sexual orientation change efforts (SOCE) or their alleged harms.

Concessions by the American Psychological Association

By contrast, the American Psychological Association (APA) did undertake a systematic review ten years ago. Although the resulting task force report was critical of SOCE, it did not call for legislative or regulatory restrictions on the practice. In fact, the APA made concessions that undermine the case for government intervention. For example:

1) Opposition to SOCE is based on the belief that people are born gay as a result of a “gay gene” or some other biological factor present at birth.

However, the APA admits that “there is no consensus among scientists” about what causes homosexuality, and that “nurture” may play a role.

2) Opposition to SOCE is based on the belief that sexual orientation is fixed and unchangeable.

However, the APA has acknowledged that “for some, sexual orientation identity … is fluid or has an indefinite outcome” (see page 2).

3) Opposition to SOCE, especially for children and adolescents, is based on the belief that individuals, especially children or adolescents, are often coerced into undergoing therapy (e.g., by parents).

However, the APA acknowledges that some people, including children and adolescents, may experience “distress” about having same-sex attractions and consider such feelings to be unwanted (see page 9).

The APA has also acknowledged that concerns about potential coercion could be mitigated by implementing a system of “developmentally appropriate informed consent to treatment” (see pages 74, 79, and 87).

4) Most of the therapy bans that have been enacted or proposed are specifically targeted at minor clients.

However, the APA acknowledges that there has been virtually no actual research done on SOCE with children or adolescents (see pages 33, 72-73, and 76).

5) Opposition to SOCE is premised on the belief that it has no benefits for the clients who undertake it.

However, the APA acknowledged, “Some individuals perceived that they had benefited from SOCE …” (see page 3).

6) Opposition to SOCE is based on the claim that it is always (or at least usually) harmful to clients.

However, the APA admits that there is no “valid causal evidence” that SOCE is harmful (see page 42).

7) The APA acknowledges that licensed mental health providers (LMHP) should “respect a person’s (client’s) right to self-determination,” allow the client to choose her or his own goals, and “be sensitive to the client’s … religion.”

However, legislative or regulatory restrictions on SOCE directly violate this core ethical principle of client self-determination.

A Literature Review of Studies Alleged to Show Harm from SOCE

When a recently-published book included an appendix titled, “Peer-Reviewed Journal Articles and Academic Books on ‘Conversion Therapy’ Outcomes that Include Measures of Harm,”[i] I set out to do a literature review (soon to be published) of this list of 79 sources. I discovered that a number of them make no reference to SOCE being harmful at all—it is inexplicable how they ended up on such a list. Of the remainder, approximately half are literature reviews or opinion pieces—not studies of actual SOCE participants.

All the entries that did study SOCE participants had significant methodological weaknesses, such as a lack of random sampling. Almost all of these studies represent anecdotal evidence only (via retrospective self-reports). Only one of the 79 sources used the gold-standard social science technique of a prospective and longitudinal design (that is, enrolling subjects at the beginning of or early in their therapy experience and interviewing the same individuals at different points in time to identify changes). That study found,

The attempt to change sexual orientation did not appear to be harmful on average for these participants. The only statistically significant trends that emerged … indicated improving psychological symptoms …” (emphasis added)

The most frequently cited article purporting to find harm from SOCE is a 2002 article by Shidlo and Schroeder. They asked respondents if they felt that “this counseling harmed you or had a negative effect,” and then followed up with a checklist of symptom areas. Oddly, the authors said in their article, “We do not report here on the frequency of responses to these items.” Because of this “qualitative” approach, the authors explicitly acknowledge,

The data presented in this article do not provide information on the incidence and the prevalence of failure, success, harm, help, or ethical violations in conversion therapy.”

Ironically, the one number that was reported—suicide attempts—showed that 25 participants had attempted suicide before “conversion therapy,” but only 11 had done so after such therapy. This would seem to suggest that SOCE is effective at reducing the risk of suicide, rather than increasing it as is sometimes alleged.

Conclusion

The evidence compiled so far regarding SOCE is either scientifically inconclusive or suggests that SOCE benefits those who seek treatment. It indicates a need for better and more extensive research on SOCE outcomes and techniques. The current state of research provides no valid scientific support for a draconian legislative or regulatory policy that would infringe upon the freedom of both clients and therapists to pursue the voluntary goal of sexual orientation change.

Unelected government officials should not insert themselves into the doctor/patient relationship, especially when relying on the politicized “policy statements” issued by a tiny minority of health professionals—statements that are unsupported by research and that are heavily qualified or even contradicted by the APA. I urge you not to adopt the proposed “Guidance Document on the Practice of Conversion Therapy.”



[i] “Appendix C: Measures of Harm: Peer-Reviewed Journal Articles and Academic Books on ‘Conversion Therapy’ Outcomes that Include Measures of Harm;” in Christopher Doyle, The War on Psychotherapy: When Sexual Politics, Gender Ideology, and Mental Health Collide (Manassas, VA: Institute for Healthy Families, 2019), pp. 365-74. The book’s author says that he received this list from A. Lee Beckstead (p. 107); but it is unclear whether Beckstead himself compiled the list.

Federal Judge Strikes Down Tampa Therapy Ban

by Peter Sprigg

October 8, 2019

In a major victory for the personal freedom of young people with unwanted same-sex attractions to seek professional help to achieve their goals, a U.S. District Court judge in Florida has struck down a local ordinance in Tampa, Florida that outlawed sexual orientation change efforts (so-called “conversion therapy or reparative therapy”) for minors when conducted by licensed professionals.

In Vazzo v. Tampa, U.S. District Court Judge William F. Jung, a 61-year-old Trump appointee who has been on the bench for a year, struck down the law and issued a permanent injunction against its enforcement. Plaintiff Robert Vazzo, a licensed marriage and family therapist, was represented in the case by Liberty Counsel.

Judge Jung chose not to directly address federal constitutional issues of free speech under the First Amendment, which has been the focus of other court challenges to therapy bans. Instead, he ruled that local governments in Florida had no authority to legislate on this issue because of an “implied preemption doctrine,” declaring, “The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline.”

Judge Jung wrote that “substantive regulation of psychotherapy is a State, not a municipal concern,” and pointed out that “Tampa has never regulated healthcare substantively in any other way before” this ordinance was adopted in 2017.

Not only are local governments not authorized by Florida law to regulate the provision of mental health care services, but they are hardly competent to enforce such regulations. Judge Jung noted this in the following passage (emphasis added; citations omitted):

The City’s Department of Neighborhood Enhancement (formerly Code Enforcement) enforces the Ordinance. Although this is the City Department that usually enforces code violations like overgrown weeds and unpermitted contracting, the City’s Neighborhood Enhancement director testified that he would take any suspected violation of the SOCE Ordinance to the City Attorney before issuing a notice of violation. The Assistant City Attorney tasked as representative on this matter has been a lawyer for four years but has no training in counseling, therapy, or medicine; and stated that the City would consult Webster’s Dictionary to understand the terms in the Ordinance. If contested, the City would employ a “special magistrate” to adjudicate the alleged violation as a code enforcement proceeding. The City’s special magistrates are unpaid volunteers appointed by the mayor. The City has no plan in connection with the Ordinance to appoint someone who is a licensed mental health provider.

Not only would the enforcers of such a law be incompetent to do so, but the enactors of it did so in ignorance:

The main sponsor of the Ordinance on the council was unaware of the difference between talk therapy and aversive practices, and testified that council and participating staff are untrained in the mental health field.

Judge Jung’s reliance on “preemption doctrine” may help fuel other efforts to overturn (or lobby against) other local therapy bans across the country. Although 18 states have passed state-wide therapy bans, passing such local ordinances in more liberal urban areas is a tactic therapy opponents have employed in conservative states that have refused to adopt state-wide legislation.

However, Judge Jung’s opinion in the case is not so narrowly written as to be applicable only to local ordinances. For example, he ruled that the ordinance encroached upon at least five principles of state law in Florida which would apply to any proposed state therapy ban there (and possibly in other states) as well:

  • Florida’s Broad Right of Privacy” (“The Florida Constitution’s privacy amendment suggest that government should stay out of the therapy room.”)
  • Parental Choice in Healthcare” (“… [W]ith very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children … until age 18.”)
  • Florida’s Patient’s Bill of Rights” (“A patient has the right to access any mode of treatment that is, in his or her own judgment and the judgment of his or her health care practitioner, in the best interests of the patient, including complementary or alternative health care treatments . . .”)
  • Florida’s Endorsement of Alternative Healthcare Options” (“It is the intent of the Legislature that citizens be able to make informed choices for any type of health care they deem to be an effective option … including … treatments designed to complement or substitute for the prevailing or conventional treatment methods.”)
  • Florida’s Well-Established Doctrine of Informed Consent” (“When the patient is denied the ability to exercise or even consider informed consent, the patient’s personal liberty suffers.”)

The judge’s decision also cited abundant evidence in the record of the case demonstrating scientifically how weak the case for any such therapy bans is (source citations omitted):

• Minors can be gender fluid and may change or revert gender identity.

• Gender dysphoria during childhood does not inevitably continue into adulthood.

• Formal epidemiologic studies on gender dysphoria in children, adolescents, and adults are lacking.

• One Tampa expert testified there is not a consensus regarding the best practices with prepubertal gender nonconforming children.

• A second Tampa expert testified consensus does not exist regarding best practices with prepubertal gender nonconforming children, but a trend toward a consensus exists.

• Emphasizing to parents the importance of allowing their child the freedom to return to a gender identity that aligns with sex assigned at birth or another gender identity at any point cannot be overstated.

• One cannot quantify or put a percentage on the increased risk from conversion therapy, as compared to other therapy.

• Scientific estimates of the efficacy of conversion therapy are essentially nonexistent because of the difficulties of obtaining samples following individuals after they exit therapy, defining success, and obtaining objective reassessment.

• Based on a comprehensive review of this work, the American Psychological Association 2009 SOCE Task Force concluded that no study to date has demonstrated adequate scientific rigor to provide a clear picture of the prevalence or frequency of either beneficial or harmful SOCE outcomes. More recent studies claiming benefits and/or harm have done little to ameliorate this concern.

• No known study to date [looking at 2014 article] has drawn from a representative sample of sufficient size to draw conclusions about the experience of those who have attempted SOCE.

• No known study [looking at same 2014 article] has provided a comprehensive assessment of basic demographic information, psychosocial wellbeing, and religiosity, which would be required to understand the effectiveness, benefits and/or harm caused by SOCE.

• Although research on adult populations has documented harmful effects of SOCE, no scientific research studies have examined SOCE among adolescents.

• With extraordinarily well-trained counseling “in a hypothetically perfect world” it may be an appropriate course of action for a counselor to aid a gender-dysphoric child who wants to return to biological gender of birth.

• There is a lack of published research on efforts to change gender identity among childhood and adolescents.

• As of October 2015 no research demonstrating the harms of conversion therapy with gender minority youth has been published. In 2018 an article was published on youth but causal claims could not be made from that 2018 report.

The Tampa ruling comes on the heels of New York City’s recent decision to repeal its adult therapy ban for fear of a negative precedent from a court case challenging it. Together, these two events have given welcome evidence that the days of such freedom-denying therapy bans may now be numbered.

New York City to Repeal Ban on Adult Sexual Orientation Change Efforts

by Peter Sprigg

September 19, 2019

It’s not often that a legislative body moves to repeal a law that it enacted less than two years earlier—especially when it passed by a vote of 43-2.

Nevertheless, this week Corey Johnson, speaker of the New York City Council (who openly self-identifies as gay) announced that he will move to repeal a city-wide ban on sexual orientation change efforts (SOCE), which critics of the practice call “conversion therapy.” My colleague Cathy Ruse has also written about this development at The Stream.

The law was enacted in late 2017 and just took effect last year.

Why the about-face? Unfortunately, it’s not because of a new-found respect for the rights of people with unwanted same-sex attractions to seek the help they desire.

Instead, they fear that the U.S. Supreme Court will strike the law down as unconstitutional.

In January 2019, an Orthodox Jewish therapist, Dr. David Schwartz, filed a lawsuit challenging the new law. He is being represented by the Alliance Defending Freedom.

As ADF points out in their complaint, “The Counseling Censorship Law is unprecedented. It is the first in the nation to censor speech between counselors and adult patients.” The 18 states, and other localities, that have already restricted SOCE have only prohibited the practice with minors—on the theory that they are more vulnerable to coercion and less able to give informed consent.

A bill similar to the New York City law, AB 2943, was considered in California last year, but was withdrawn by its sponsor at the last minute. California instead recently adopted a non-binding resolution, ACR 99, condemning SOCE.

Previously, therapy bans for minors in California and New Jersey had been upheld in federal circuit court decisions. Additional lawsuits are pending in Maryland and Florida.

What was different about New York City? For one thing, its scope. Not only did it ban therapy for adults (not just minors), but it also barred any such assistance “offered or provided to consumers for a fee,” regardless of whether the individual is a licensed mental health provider. Rather than facing a professional sanction such as the loss of a license, violators could be fined up to $10,000.

Although the Supreme Court has not yet heard a challenge to therapy bans, it has not been silent about them. In the 2018 case of NIFLA v. Becerra, the court struck down a California law that essentially required pro-life pregnancy centers to advertise for abortions, ruling the law violated the centers’ First Amendment free speech rights. California had defended the law (as they defended their therapy ban for minors in a case called Pickup v. Brown) by arguing that certain kinds of “professional speech” do not have the same First Amendment protections. Justice Thomas rejected that view in his majority opinion in the NIFLA case:

Some Courts of Appeals have recognized “profes­sional speech” as a separate category of speech that is subject to different rules. See, e.g., … Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) … . These courts define “professionals” as indi­viduals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” … Pickupsupra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” or that is “within the confines of [the] professional relationship,” Pickupsupra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scru­tiny. See  … Pickupsupra, at 1053– 1056 … .

But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” This Court’s prece­dents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence … of a long (if heretofore unrecognized) tradition’” to that effect.

This Court’s precedents do not recognize such a tradi­tion for a category called “professional speech.”

I wrote about the implications of this for therapy bans in a blog post in July 2018, “Will the Supreme Court Save Sexual Orientation Change Efforts?” It appears that some of the leaders of the LGBT movement may have come around to the same realization.

This is yet another illustration of the fact that elections—and judicial nominations—have consequences.

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