The Equality Act: Big Government Playing Doctor, Badly

When a child with gender concerns presents to a mental health professional, the professional will follow generally applicable standards of care.  An American Psychiatric Association (APA) Task Force has emphasized that although there is no consensus as to recommended alternative treatments, there is a consensus as to appropriate measures required for investigation and diagnosis prior to any issuance of treatment recommendations, as follows:

1) assessment, and accurate DSM diagnosis of the child referred for gender concerns, including the use of validated questionnaires and other validated assessment instruments to assess gender identity, gender role behavior and gender dysphoria; 2) diagnosis of any coexisting psychiatric conditions in the child and seeing to their appropriate treatment or referral; 3) identification of mental health concerns in the caregivers, and difficulties in their relationship with the child; ensuring that these are adequately addressed, 4) provision of adequate psychoeducation and counseling to caregivers to allow them to choose a course of action and to give fully informed consent to any treatment chosen. This entails disclosing the full range of treatment options available (including those that might conflict with the clinician’s beliefs and values), the limitations of the evidence base that informs treatment decisions, the range of possible outcomes, and the currently incomplete knowledge regarding the influence of childhood treatment on outcome; 5) provision of age appropriate information to the child; and 6) assessment of the safety of the family, school and community environments in terms of bullying and stigmatization related to gender atypicality, and addressing suitable protective measures.

Mental health practitioners also understand the warning in the American Psychological Association’s APA Handbook on Sexuality and Psychology as to children: “[p]remature labeling of gender identity should be avoided.”  They also understand the position statement in the 2012 World Professional Association for Transgender Health (WPATH) Standards of Care (SOC) as to social transition treatment for children, which would include use of opposite-sex bathrooms and participation in opposite-sex sports: (1) social transition “is a controversial issue” and (2) the “nature and duration of transition are variable and individualized” (emphasis added).

Social transition (which may include use of opposite-sex restrooms, locker rooms, and dressing rooms; participation on opposite-sex sports teams; use of opposite-sex names and pronouns; and cross-dressing) is only one of a number of controversial alternative medical treatments that may be considered for those presenting with gender variance or gender dysphoria.  Diagnosis and selection of recommended treatments is complex and is reserved to mental health professionals.  Under the bill, the government attempts to usurp the authority and prerogatives of medical professionals and parents in the treatment selection process by mandating a “one size fits all” treatment protocol for children (as well as adults).  The mandate violates the above consensus conclusions of the professional medical organizations.  Such consensus requires that all of the six actions listed above be undertaken.  The bill directly violates those principles by mandating a non-variable social transition (access to opposite-sex facilities and sports teams), all of unspecified duration and all without examining the individual and his related circumstances.  The mandate denies the individual the benefit of rights and protections to which the gender-variant and gender-dysphoric child is entitled pursuant to ethical and legal standards of the medical profession.  The mandate thus constitutes unlawful discrimination against children presenting with gender variance and gender dysphoria.

Informed Consent

A critical prerequisite for dispensing medical and psychiatric advice and treatment is securing informed consent.  (See Mayo Clinic Proceedings, March 2008, “Benefits and Challenges of Informed Consent,” J.B. Murphy, Mayo Clinic Legal Department.)  Valid informed consent is an ethical and legal precondition to commencement of all medical treatment and can occur only after disclosure in detail of all material information and explanations regarding the patient’s condition and treatment alternatives, and only after all material adverse medical, economic, and social risks and consequences of proceeding with the treatment have been disclosed and fully comprehended.  Children (and even many adults) do not possess the maturity, experience, and knowledge to understand and comprehend the material adverse social, medical, and economic risks and consequences of gender transition to themselves, their families, and their present and future social relationships, such as:

1. There “is no evidence for the political case that transsexuals were born that way.”
2. There are many suggested causes and contributors to gender variance and gender dysphoria, including patient and family psychopathology, media influence, peer pressure, and social contagion.
3. A boy cannot become a girl, and a girl cannot become a boy.
4. Current estimates conclude that around “a quarter (22–28%) of transgender women [i.e., men calling themselves women] are living with HIV, and more than half (an estimated 56%) of black/African American transgender women [sic] are living with HIV.”  Policies affirming “transition” by black African-American males are, in effect, encouraging behaviors which make it more likely than not that they will be infected with HIV. Such policies are contrary to public policy and insulting to public and private efforts to reduce the spread of HIV.
5. Gender identity is self-determined and can and does change from day to day.
6. Findings in a review of 88 studies that an estimated 31.0% of transgenders (37.9% for trans women and 13.1% for trans men) are engaged in the sex trade.
7. Findings in a 2018 study that 87.5% of participants (almost all of the heterosexual participants) would not consider a dating relationship with a transgender.

It is for that reason that the APA Task Force Report concludes: “Children have limited capacity to participate in decision making regarding their own treatment, and no legal ability to provide informed consent.”

The bill, if enacted into law, would allow children to unilaterally commence a medical treatment (social transition), all without the benefits and protection of informed consent requirements, thus unlawfully discriminating against children with gender variance and gender dysphoria.

Rights of Parents to Control the Education and Upbringing of Their Children

In the 2000 U.S. Supreme Court case of Troxel v. Granville, Justice Sandra Day O’Connor in the main opinion, joined by Justice Ruth Bader Ginsburg, opined that “the due process clause of the 14th Amendment protects the fundamental rights of parents to make decisions concerning the care, custody, and control of their children.”  Justice O’Connor further stated:

[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. … The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

The bill mandates that a child be allowed to unilaterally decide whether to socially transition by entering opposite-sex bathrooms and locker rooms.  Such a mandate discriminates against children with opposite-sex gender identity by denying such children the protective shield of parental control and care.

Conclusion

The Equality Act is equivalent to a law that would require a pharmacist to dispense a drug with debated efficacy and with significant adverse side-effects to a child with gender variance or gender dysphoria, all without a prescription and without any parental consent.  Such is preposterous — and is, on its face, child abuse.