This is Why We've Been Yelling About This

A Service Post Analyzing Trump's Gender Affirming Care Ban

[Pictured: The New York Times suiting up to report on Trump’s ban on gender affirming care.]

Donald Trump’s latest raft of executive orders have had, if nothing else, an immensely clarifying effect. The US is still reeling from the absolute mess that was the OMB “pause” on federal funding. No one knows what it really means (my co-host Moira Donegan and I will be speaking with Slate’s Mark-Joseph Stern for an emergency episode of In Bed With the Right in a few hours in order to have at least some of it explained to us). But two things seem clear to me: (1) Trump is looking to remake his role and to test out just how “imperial” he can make this presidency. And (2) he is using the supposed threat of, among others, “DEI” and “woke gender ideology” to do it. And, oh yeah, dehumanizing trans people in the process.

It is worth pausing on that. As someone who has been researching the conservative assault on stuff like DEI, “wokeness” and “gender ideology” for years now, I’ve often had to contend with the response: yeah, this stuff is bad/silly, but it’s ultimately a sideshow, isn’t it? Why do you focus on these weirdos and their weird pet theories? This has been particularly pronounced in Europe, where a warped perception of the US is almost baked in at this point. (I was once castigated for focusing on “fringe” figures to discuss conservative politics in the US — that “fringe” person being “this man, William F. Buckley”. ¯\_(ツ)_/¯) But I get this from colleagues in the US, and, most troublingly, university administrators, i.e. the very people who’ll need to respond to these executive actions in the coming days and weeks. And what those executive actions make clear: anti-“wokeness” discourses are absolutely central to the new illiberal order that these actions seem to envision. You may have thought this was just about gender studies professors, blue-haired student activists, and #MeToo harridans. Well, think again, because the attack is ultimately on the separation of powers and the idea of equality before the law.

That’s the spirit in which I want to analyze Donald Trump’s latest Executive Order, “Protecting Children from Chemical and Surgical Mutilation”, which dropped on January 28. I think it’s worth going over the whole thing in detail. This is a huge undertaking, and I’m doing this on the fly — so please email me to correct or supplement any of the information below. I really want people to be able to use this post, and I don’t want to add misinformation to an environment already rife with it.

I should state at the outset that I am absolutely no expert in gender affirming care — something I have in common with whatever sociopath vomited up this piece of garbage. Again, you might say: okay, why parse a document put out by Donald Trump’s White House, likely to placate his base, and expect some kind of intellectual masterstroke? To which I say: fair enough. But I think there are two things that make this thing stand out: with immense clarity it outlines (1) how these kinds of conservative legal movements build on previous efforts — and how the lack of response to those efforts can embolden the new ones. It also (2) shines a light on the fact that among those who need to take a bow for the audience here are not just the AGs of like Texas and Tennessee, or the authors of Project 2025. It’s liberal pundits and journalists who have muddied the waters on trans issues to such a point that these people can drop a thing like this and basically point to Pamela Paul to say “hey, this isn’t even that conservative — what else were you calling for?”

Just look at the description of the supposed problem the Executive Order is fixing. Here’s how “Section 1: Policy and Purpose” describes the situation.

Policy and Purpose. Across the country today, medical professionals are maiming and sterilizing a growing number of impressionable children under the radical and false claim that adults can change a child’s sex through a series of irreversible medical interventions. This dangerous trend will be a stain on our Nation’s history, and it must end.

That sound you’re hearing are plenty of misinformation chickens coming home to roost. I know I use the term “moral panic” a lot, but this is a pretty classic version of it: there’s a crisis being conjured here that (you’ll be shocked to learn) isn’t really a crisis. There are a bunch of very relevant distinctions being elided here, right down to the pairing of “chemical” and “surgical”, which asks people to pass judgment on parents allowing their kids access to hormones by getting them to imagine to kids having their genitals cut off. These elisions and indistinctions have become a Republican obsession, but it is one that — it must be said — so-called “liberal” media have had a huge part in shaping and legitimating. I’m sure the transphobes writing in The New York Times and The Atlantic will say they never intended anything like this, but (a) yes, they clearly did, and (b) they peddled the exact kind of lies that are contained in this paragraph.

I think Singal is very revealing here. There will be some among what Andrea Long Chu has called the TARLs (trans-agnostic reactionary liberal) who will be saying they never intended anything of this kind and were “just asking questions”. This will technically be true, because they never explicitly said what they wanted. Of course, we might ask them whether someone reporting on a supposed wave of child mutilations in high dudgeon and evident horror might not reasonably be inferred to be advocating for the state to step in and stop the practice. But that would be missing the point. These moral entrepreneurs never called for anything and that was central to their positionality. Just as the people I’ve been studying who have decried university “cancel culture” and then profess shock when students get roughed up by cops or professors get fired for wokeness or whatever, their position consists in petulantly refusing to take ownership of the obvious policy outcomes of their preferred intellectual positions. This agnosticism is, I would argue, how the TARL retains their (vestigial) liberalism.

But that’s not what Jesse Singal’s tweet is doing: his reframing (not at all in bad faith, because he’s not at all a bad faith kind of guy) instead casts his responsibility not as laundering bad information that then informed very bad policy. Instead he claims he is being associated with this position simply because he is not sufficiently “down with the cause”. He’s on your side, see? He’s a “liberal journalist” just asking questions? This in spite of sounding in every relevant way like the authors of this Executive Order. More importantly, though, Singal is, even in this momentm when his obvious policy preference, when the obvious implications of his reporting on trans issues for the last six or more years is becoming official national policy, casting himself as an outsider, a bold lone voice standing athwart the freight train of liberalism politely asking: “hey guys, are kids being rushed into transition maybe?” There’s a compulsion to still cast as heterodox a position that is currently being endorsed by every single political actor across the federal government, by every major political party in the United Kingdom, that seems to be the dominant ideology in most media, including liberal media, which at this particular moment in history seems remarkable both in its fervor and its immunity to facts on the ground.

For those who are confused by that opening fusillade of bullshit, here are what facts I could find: there is an absolutely miniscule number of children in the US who have had actual gender affirming surgery — which, again, is what the authors of the EO clearly want us to picture. Of those, almost all are breast or chest surgeries, as this cohort study makes clear. The cohort tracks four years, from 2016 to 2019 — so keep that in mind when looking at the absolute numbers. The number I could find for breast augmentation surgeries (performed, one would assume, on cis kids by and large) in the same cohort (under 18) is something like 8000 a year — no idea if that’s still accurate, but it’s safe to say it is larger. I also would point out that this kind of surgery is by its nature limited to the upper end of that age bracket, because you have to have something in order to remove it…

The vast majority of children undergoing transition or gender affirming care are receiving puberty blockers, with some also receiving hormones. These (a) do not lead to sterility and (b) are by their very nature reversible.

Countless children soon regret that they have been mutilated and begin to grasp the horrifying tragedy that they will never be able to conceive children of their own or nurture their children through breastfeeding.

The regret rate for these procedures is miniscule. Also, if you genuinely think that Donald Trump and his goons give half a shit about these kids’ wellbeing, I have a crypto-bridge to sell you.

Moreover, these vulnerable youths’ medical bills may rise throughout their lifetimes, as they are often trapped with lifelong medical complications, a losing war with their own bodies, and, tragically, sterilization.

This one takes a little parsing. There is some data to suggest that hormone treatments might have side effects later in life. Most of what I’ve read refers to osteoporosis, though, which isn’t exactly a condition associated with out-of-control medical bills. I think the real heart of this sentence is “a losing war with their own bodies”. This is, it seems, the true concern here: trans children may grow up to be trans adults.

Accordingly, it is the policy of the United States that it will not fund, sponsor, promote, assist, or support the so-called “transition” of a child from one sex to another, and it will rigorously enforce all laws that prohibit or limit these destructive and life-altering procedures.

The scariest part of this to me is “rigorously enforce all laws” — gender-related care for minors appears already to be very highly regulated. There are plenty of rules, legal strictures, parental consent requirements. What there isn’t, thus far, is an ability for the state or individual to sue people performing these kinds of procedures simply for performing these kinds of procedures — this is a strategy that anti-abortion politicians have increasingly turned to. Just think of Texas’s Senate Bill 8, passed in 2021, which, as the ACLU puts it “allows anyone — a relative, an abusive partner, or even a stranger — to sue the health care provider and seek a court order that would block the patient’s abortion and prevent the provider from performing any abortion after approximately six weeks in pregnancy.” Injunctive relief and compensatory damages would make it prohibitively expensive, to say nothing of dangerous, to offer this kind of care. It also points forward to the next steps in the abortion fight: as we’ll find out later in the EO the “laws that prohibit or limit these … procedures”, include laws that do not in fact prohibit or limit these procedures. Just as Republicans are preparing to weaponize the Comstock Act of 1873 to introduce a national abortion ban through the backdoor of already existing legislation.

This EO concludes with something very similar: using existing laws against child abuse and female genital mutilation to attack something these laws were never intended to attack. Section 8 directs State AGs “and other law enforcement officers”

to coordinate the enforcement of laws against female genital mutilation across all American States and Territories;

This is a law written to outlaw a very specific practice. If I’m reading it correctly, 18 U.S. Code § 116 refers specifically to female genital mutilation that is performed or excused “as a matter of religion, custom, tradition, ritual, or standard practice” and has clear carve-outs for medical procedures that are deemed necessary. This gets at something that I’ll touch on more detail below: the attempt to recast specialists in this field of medicine as frothing-at-the-mouth zealots who cannot be taken seriously as scientists; while elevating a baseline sense (expressed in the first section) that these are “unnecessary” procedures to supposed scholarly consensus. Anyway, reading on, AGs are also called upon to

(c) prioritize investigations and take appropriate action to end deception of consumers, fraud, and violations of the Food, Drug, and Cosmetic Act by any entity that may be misleading the public about long-term side effects of chemical and surgical mutilation;

This is again drawing on the anti-abortion movement’s playbook. Before the end of Roe, this consumer protection a preferred tactic for picking away at abortion access (well, that and terrorism). Harass providers out of being able to provide their service, or do so sustainably, by taking them to court constantly for an increasingly bizarre list of requirements. Reading on, we get a paragraph clearly inspired by Texas SB-8:

(d) in consultation with the Congress, work to draft, propose, and promote legislation to enact a private right of action for children and the parents of children whose healthy body parts have been damaged by medical professionals practicing chemical and surgical mutilation, which should include a lengthy statute of limitations; and

This is an attempt to deputize civil courts in bankrupting anyone who provides gender affirming care. It is also likely a way to get around the federalism-issue: that kids could just go to a different state to get care. Can’t have that! This would presumably allow a Texas pastor or AG to sue a provider in California. The borrowing from Texas goes on, as the EO next instructs AGs to

(e) prioritize investigations and take appropriate action to end child-abusive practices by so-called sanctuary States that facilitate stripping custody from parents who support the healthy development of their own children, including by considering the application of the Parental Kidnapping Prevention Act and recognized constitutional rights.

This kind of framing points to something we’ve been highlighting on In Bed with the Right: the absolutely split approach to parents of trans kids. If those parents are against their kids transitioning, then their parental rights must be respected and in fact given force of law. But supportive parents are turned into suspected “child abusers”. The practical implications of this are deeply chilling — I can’t imagine what it must be like being the parent of a trans kid right now.

Anyway, on to “Section 2: Definitions”. The first oddity: “child” is anyone “under 19 years of age”.

(a) The term “child” or “children” means an individual or individuals under 19 years of age.

Meaning … there are 364 days during which a person can join the army, buy some smokes, start an OnlyFans, but during which that person cannot seek to access puberty blockers? This may “just” be rhetoric, meant to signal that this won’t stay being about kids for long, but that it ultimately wants to impinge on the rights of trans adults as much as possible. A lot of academics and activists have warned that the fixation on transgender kids is just a way to police transgender adults, that the focus on children is supposed to generate a mistaken sense of newness and lack of precedent, and boy were they not kidding! We’re half a page in and, unless this is some sort of typo, this ban is already outlawing transition care for (a specific subset of) adults. Reading on:

(c) The phrase “chemical and surgical mutilation” means the use of puberty blockers, including GnRH agonists and other interventions, to delay the onset or progression of normally timed puberty…

Important second point alluded to above: this is not about banning surgeries at all (though that will come later), it is about puberty blockers. None of the handwringing above applies to puberty blockers. But wait, you say, did Trump just block puberty blockers for everyone? Because, while the hoopla over trans children often obscures this fact, puberty blockers are routinely prescribed for kids that have no interest in transitioning. About 1 in every 5000 children in the US hit puberty precociously, and that number is rising — the way this is usually addressed is puberty blockers.

According to a report from Reuters, the number of children who started on puberty-blockers or hormones for gender dysphoria rose from 2,394 in 2017 to 5,063 in 2021. If we assume that indeed 1 in every 5000 children in the US hit puberty early, and might require puberty blockers to delay the onset of a puberty in their sex assigned at birth, then we would get to something like 3200 kids (there are 16 million 6-9 year olds in the US, I hope I’m doing the math right here). Similarly, 2-3% of boys (that’s hundreds of thousands each year) have delayed puberty (no onset before age 14) and thus are candidates for hormone therapy (I couldn’t find a number for girls). So this would seem to affect a lot of kids who are not transitioning. It seems extremely likely, in other words, that more cis kids take these meds than trans kids. But not to fret … because in a not-at-all discriminatory twist the EO outlaws these supposedly dangerous treatments only for trans kids. Their cis peers, apparently, can inject away, can down that T to their hearts content. I guess because those little cisgender sluggers can take it? Or something?

This isn’t something the Trump administration came up with on its own, this is cribbed from laws like Tennessee’s SB-1, which — thanks to the recent court case US v. Skrmetti — we have good reason to believe John Roberts and his fellow SCOTUS conservatives think are just peachy. So … the order applies only to attempts “to delay the onset or progression of normally timed puberty”

in an individual who does not identify as his or her sex.

Banning a certain practice for a certain kind of person only is what is commonly referred to as “discrimination”. It is also a practice that is pretty central to a whole raft of civil rights victories in the courts — from 1967’s Loving v. Virginia, which got rid of bans of interracial marriages, via 2015’s Obergefell v. Hodges, which required states to issue marriage certificates to same sex couples. It’s not an accident that this linchpin of equal rights is starting to wobble, and starting to wobble with respect to a set-upon minority many liberal institutions couldn’t give a hoot about. Trans kids are the laboratory for a post-civil rights order. Conservatives certainly know this, which is why Idaho has already asked the Supreme Court to reconsider Obergefell in light of its recent rulings. But Adrian, you say, isn’t the end of liberal democratic civil rights a small price to pay for my friend’s daughter Chantal no longer asking me to use they/them pronouns for her? Touché.

“Section 3: Ending Reliance on Junk Science” is interesting for two reasons. First, it shows the interconnectedness of the global “anti-gender” movement, as recently chronicled by Judith Butler. The deep suspicion of the kinds of specialists who actually perform this kind of care as a kind of “pseudoscience”, combined with a reliance on alternative junk science has been a mainstay on the anti-gender right — have a look at critiques of the NIH’s Cass Report for a good run-down of how this works. The basic gist is: a lot of this “just asking questions” stuff is anti-science (the EO devotes an entire section to discounting the evidence and best practices gathered by theWorld Professional Association for Transgender Health (WPATH)); but it also generates its own pseudo-science or alternative science to accord with its own preferred political outcomes. It pretends to liberate science from some kind of “woke” dogma, all the while actually making “science” into an appendage of specific political precepts.

Last fall, I read Eric Fassin’s brilliant new book State Anti-Intellectualism and the Politics of Gender and Race: Illiberal France and Beyond. Fassin makes a case that “state anti-intellectualism” is one of the central features of a fascist streak within neoliberalism. That fascist streak acts “liberal” (really libertarian), meaning it pretends at wanting to level the playing field, wants to expand and liberalize the “marketplace of ideas”. But in truth it of course has preferred answers that it wants “science” to arrive at — broadly reactionary reinscriptions of existing gender, racial, ethnic, religious hierarchies. I’ll have more to say about this in a later post about French illiberalism, but I’m still chugging through that. For now it’s important to note that the EO calls for the kind of research it likes, and effectively makes the work of most gender clinics in the US impossible:

The head of each executive department or agency (agency) […] shall […] immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.

The immediate implications of this are enormous and appalling. At the same time, it’s worth taking a further step back and have a look at what’s envisioned here. What this EO seems to want is a world in which gender affirming care can never prove its effectiveness (as it has in study after study!), because it cannot be performed. In which trans people can be endlessly talked about, without the inconvenience of them actually seizing the mic and telling us what they really want and feel. This is the exact world LTBT people protested in the 1970s, when they struggled to get homosexuality removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM). This is what documents like this are aimed at: a rollback to a time before. Before basically the entire understanding of civil rights that has shaped the last 70 years of US politics.

This, as my title says, is why we have been yelling about this. Trans kids may be a tiny minority, but when the right paid outsized attention to them, we should have been too. Gender wasn’t a sideshow. Gender wasn’t a distraction. Gender wasn’t a “culture war” issue. Gender was the battering ram by which the gate was always gonna come down. And many, many people now clutching their pearls didn’t just turn a blind eye to that battering ram — in perhaps the most liberal move of all, they simply opened the gate.