Understanding What's at Stake (It's Always Been Transition)
What history brings to the Supreme Court for today's oral arguments.
Today, the Supreme Court will hear oral arguments in United States v. Skrmetti, a case concerning whether a Tennessee law prohibiting medical transition for minors violates the Fourteenth Amendment’s equal protection clause. It’s impossible to predict the outcome, though it seems clear that if, for example, the prescription of estrogen for the purpose of transition is prohibited for a transgender seventeen-year-old based on her sex, while a teenager of a different sex could be prescribed the same hormone, then the law hinges on sex discrimination.
At issue in the case is the allegation that youth medical transition is “experimental” and, therefore, potentially harmful, requiring state restriction. Lurking behind that claim is the root mythology that transgender children themselves are novel and could perhaps be made to disappear if only the rug were pulled out from underneath them. I was proud to co-author an amicus brief submitted to the court on behalf of professional historians that details the long and unremarkable historical fact of medical transition, including for minors—and I encourage everyone to read the brief. The entirety of Histories of the Transgender Child (2018) is also addressed to the systematic demolition of that myth through the meticulous method of history. As I detailed in the book, not only were teenagers patients at the first clinics that standardized medical transition in the United States; just as importantly, young people also transitioned gender before hormones and surgery were developed, putting to rest the fiction that there would be no transgender children if not for medicine.
As I’ve continued to research the history of medical transition in the years since Histories was published, I’ve only collected more archival evidence of young people’s attempts to transition during the era in which hormones and surgeries were first incorporated into medical practice, including youth that were blocked or punished. Placing young people at the beginning of medical transition’s history is important not just to reinforce cold, hard facts relevant in this case, but to raise a question that Skrmetti has given the highest possible stakes: how long is it tolerable to force children to suffer by dismissing their need to transition?
It strikes me that one of the reasons it has been so important to label medical transition experimental or novel is that it distracts from something we would prefer not to know: the disturbing history of how children have been harmed by parents and clinicians who tried everything but let them transition. It serves the anti-transition position much better for hormones and surgeries to have emerged only recently and affirmatively, with no predicates, than to admit that we already know the outcome of laws like Tennessee’s is unacceptable because countless children and teenagers have been denied medical transition once it became available. While many were able to transition as far back as hormones and surgeries have been available in the U.S., others were deliberately stopped by the adults in charge of their care.
In fact, clinicians have sometimes expressed regret about how terribly they treated youth in the mid twentieth century. In a 1975 article profiling the Gender Identity Clinic of New England, psychiatrist Louis Gold shared that one of the very first transgender patients he saw in his career was a teenage girl. It was the late 1940s and “I didn’t know what to do,” he confessed. “I tried to force him to accept the male role and gave him male hormones” as a form of corrective therapy. The prescription, of course, didn’t work. “It upset him,” Gold admitted. “I realized later I wasn’t on the right track.”1
Other doctors had no doubt that teenage patients needed to transition but could do nothing because of a lack of parental support. Los Angeles plastic surgeon Elmer Belt, who provided surgeries for both transgender women and men in the 1950s, consulted with an eighteen-year-old in 1958 “who is transsexual and earnestly desires an operative procedure for the change of his sex,” as he put it to a colleague. Because legal adulthood at the time was set at twenty-one and she did not have the support of her parents, Belt told the young woman “that we could not do anything for him until he had reached the age of consent, nor could anyone else.”2 She was forced to wait three years and try again.
Falling somewhere in the middle of the first two approaches were painful compromises intended to protect parents, often when younger children raised as boys asked to be treated as girls years before they would have medically transitioned. In 1954, Leona M. Bayer, a doctor at the University of California, Berkeley’s Institute of Human Development, met an eight-year-old child who had been dressing in girl’s clothes since age three. Bayer, who researched children’s physical development, was uncertain how to approach her girlish character. For guidance, she turned to Louise Lawrence, a well-connected San Franciscan who began living full-time as a woman in 1944. As Bayer told social scientist Alfred Kinsey, talking to Lawrence “made the issue unusually vivid,” convincing her that the child was, indeed, in the parlance of the period, “a young transvestite.”3 Lawrence, meanwhile, marveled at such a young child achieving the basic recognition it had taken her decades to arrive at. When she drew up a list of all the “Transvestites in the Bay Area” she knew, she sentimentally included the child among them.4 Two years later, Lawrence wrote to Bayer again, asking how the kid was getting along. There was an undertone of concern to the letter. “You also said,” she reminded Bayer of their prior conversation, “that the boy’s parents allowed him to wear the girls clothes as long as he did it only in the basement.” Lawrence seemed worried whether the child’s girlhood, confined to the degrading secrecy of a basement, would ever be allowed to bloom.5
These three snapshots from the 1940s and 1950s inventory the most common methods through which parents and clinicians denied young people’s need to transition, whether medically or socially, at the very moment that hormones and surgeries were being standardized in the United States. They add to the much larger case that Histories of the Transgender Child makes, demonstrating that youth have been a part of the history of medical transition since the very beginning, including in instances in which adults denied or confined their needs. Whether the fact of medical transition’s long history will be recognized as consequential by the Supreme Court, of course, remains to be seen. But I find the urgency conveyed in these examples more precise and more persuasive as an explanation for why we must allow medical transition than one of the refrains about transgender history that has gained popular currency in recent years: “Trans people have always _______.”
The assertion that transgender people have always existed, perhaps the strongest version of the claim, understandably responds to blanket denials and dismissals. But it also conceals an indifference behind the urgency of its confidence. If transgender people have always existed and will always exist despite any law, despite any policy, and despite any court decision, then strangely, it is as if escalating political attacks and changes in policy aren’t what matter because they are ineffective on an existential scale. It is only a slogan, but I suspect that its attractiveness has something to do with the way it misrecognizes what is at stake, conflating being transgender as a private identity, which may risk nothing and be socially invisible when it is confined to language or style, with medical transition, the target of laws like Tennessee’s.
The abstraction of the political attack on transition has been building for some time, substituting transgender existence for the concrete ways that law, policy, and regulation really affect transitioning people, not a generic population that identifies as transgender. In 2018, when a Trump administration memo outlining how to redefine gender as male or female sex as recorded at the time of birth was leaked, it was covered in the media as “trying to define transgender out of existence.”6 The careful emphasis in headlines on the term “transgender,” not “transgender people,” was accurate enough, but it still abstracted what was at stake. Sex classifications in the administrative state do no have the general effect of menacing something called transgender existence; they quite concretely affect access to federal programs like Social Security, the immigration and naturalization system, federal prisons, and produce a host of bureaucratic conflicts with state-level and other forms of identification for people who transition.
Similarly, Skrmetti is being widely covered as a case concerning “transgender rights,” which is an inaccuracy worth pausing on.7 As a matter of law, the case brought against Tennessee does not involve rights claims, but rather a simple sex discrimination claim, which is in many ways far easier to prove. More importantly, there are no transgender rights to speak of under U.S. federal law that could be removed in the coming years. Whether rights are even a relevant framework for political struggle is a question worth asking because it has been my observation that the vagueness of describing transgender rights as under attack has the effect of mystifying what is actually at stake: transition, both medically and its processing by the administrative state, which condition access to welfare programs, the labor market, and with them, fundamental struggles over income, housing, and quality of life.
The abstraction of transgender interests from transition into a fight for generic existence and rights also sustains frustratingly hollow claims to political action. It’s not surprising that representation in corporate entertainment, euphemistic appeals to poetry, art, or the aestheticization of everyday life as beautiful have become venerated refrains in recent years, as if they were genuine political defiance. (The apotheosis is surely the now fully-memed trope of “trans joy.”) They are disaggregated, private victories as distant as possible from the life-changing material effects of not being able to obtain hormones and surgeries, a driver of downward mobility. Because transgender culture since the 1990s has been virulently anti-transition, to the point of celebrating that “you don’t have to transition to be trans,” it has unfortunately found itself without strong resources to meaningfully oppose to the attack on medical transition, which is a bread and butter, material concern, the stuff of class politics, not self-affirmation, idealized care, or representation.
The political struggle underway today is not over transgender existence (which, for the record, cannot be targeted because transgender people arise randomly within the population and are not an ethnic group), it is over the material conditions of possibility for transition, whether access to public facilities, access to education and the labor market, or access to hormones and surgeries. In the case of Skrmetti, I would contend that the outcome prescribed by Tennessee’s law ought to be accountable to the documented material harm the many young people denied access to hormones and surgeries over the past seventy years endured. Is it tolerable to consign all transgender children today and tomorrow to the fate of so many already denied medical transition in the past? That is the question that history asks us to confront.
Joel Lang, “Transsexuals Look to City Clinic,” Hartford Courant, June 1, 1975, 30, Series III, Box 9, Folder 24, George H. Henry/Canon Clinton Jones Collection, Elihu Burritt Library, Central Connecticut State University, New Britain, CT.
Elmer Belt to Harry Benjamin, September 11, 1958, Series II-C, Box 3, Harry Benjamin Collection, Kinsey Institute for Sex Research, Indiana University, Bloomington, IN.
Leona M. Bayer to Alfred Kinsey, April 8, 1954, Series IB, Box 1, Folder 1, Louise Lawrence Collection, Kinsey Institute for Sex Research, Indiana University, Bloomington, IN.
Louise Lawrence, “Transvestites in the Bay Area,” May 1954, Series IB, Box 3, Folder 46, Louise Lawrence Collection.
Louise Lawrence to Leona M. Bayer, February 18, 1956, Seires IB, Box 1, Folder 1, Louise Lawrence Collection.
For example, “Trump administration trying to define transgender out of existence,” The Guardian US, October 21, 2018, https://www.theguardian.com/world/2018/oct/21/trump-administration-define-transgender-out-of-existence-new-york-times.
For example, Jordan Rubin, “Supreme Court to Hear Historic Argument on Transgender Rights,” MSNBC, December 3, 2024, https://www.msnbc.com/deadline-white-house/deadline-legal-blog/supreme-court-transgender-care-skrmetti-rcna182505.