transgender issues Archives - Prindle Institute

February 27, 2023

On “Just Asking Questions”

From the “why” stage of toddlerhood to Socratic questioning, from scientific inquiry to question-based religious traditions, questions play an important role in our understanding of the world. Some believe that no questions should be off-limits in a free society, but that idea has recently received significant push-back.

Take, for example, the February 15 open letters criticizing The New York Times for its coverage of trans issues. One letter, co-signed by numerous LGBTQ advocacy groups and public figures, calls out NYT for “just asking questions” about trans healthcare in a way that has negative real-world consequences. Note the scare quotes around the accusing phrase, which suggest that the questioning is irresponsible, misleading, or inauthentic.

The charge of “just asking questions” does not primarily concern the legal status of these questions or their protection under the First Amendment. The issue is, rather, a moral one. Are some lines of questioning irresponsible — even immoral? And what makes them so? (I’ll assume those two questions are permitted.) Let’s start with a brief discussion of how one might defend inquiry without limits, and where that defense might go wrong.

The defense of no-limits questioning might go broadly like this:

Statements make claims about the world, so they are the sort of things that can be right or wrong. But questions don’t make any claims; they’re just requests for information. So, asking a question is never wrong. In fact, asking questions is the way to learn more about the world.

There are at least two problems with this reasoning. The first problem is that, while questions technically don’t make claims, they do affirm claims in a subtler way through the assumptions embedded in them. In philosophy of language, these assumptions are called presuppositions, many of which are innocuous. For example, “What classes are you taking this fall?” presupposes that the person you’re asking is taking classes this fall. In many contexts, that claim is harmless enough.

Other presuppositions are not so innocent. Consider the following question: “When we measure human intelligence, which race comes out as genetically superior?” This question, researched numerous times in recent decades, makes a number of dubious assumptions, including that human intelligence can be measured by our tools, that our tools measure it accurately, and that intelligence has a genetic basis. Sure, a question cannot be false. But it can presuppose claims that are dubious or outright false.

Asking a question in a certain context also has implications beyond the claims it presupposes. One important implication is made whenever a question is posed non-rhetorically in a public forum: the implication that the question is an open question.

An open question is one whose answer has not been definitively settled. “Have you eaten yogurt today?” is probably not an open question for you. You know what the answer is, and outside of a philosophy class you don’t have much reason to doubt that answer. Similarly, “Is the earth flat?” is not an open question. The answer has been known for millennia.

So, when a column in The New York Times asks, “Could some of the teenagers coming out as trans today be different from the adults who transitioned in previous generations?”, that wording implies that these differences might be significant — significant enough to potentially overrule decades of well-established and evidence-based medical practices. The article does mention the precedent for positive outcomes with respect to these practices, but in a way that invites speculation that the precedent no longer applies — crucially, without providing support for why these differences would be significant enough to undermine the precedent. Asking a question can thus be irresponsible, when it relies on false or dubious presuppositions or when it treats a question as open without — or in opposition to — evidence.

There’s another problem with the defense of no-limits questioning above: the argument equivocates on “right” and “wrong.” A question itself cannot be false the way a statement can (though, of course, its presuppositions can be false), but that doesn’t settle the issue of whether or not asking a question can be wrong morally. Let’s briefly consider two moral issues: asking a question in bad faith and asking a question with harmful consequences.

Asking a question in bad faith means asking inauthentically — without a willingness to accept the answer, with a purpose to obscure the truth, or without a desire to learn.

One example might be someone in a class who plays devil’s advocate, asking questions that are purposely contrary simply because they enjoy challenging others’ ideas. This behavior, beyond being personally frustrating, can also inhibit learning. When someone takes up time asking fruitless questions, they leave less time for honest inquiry.

In some cases of bad-faith inquiry, the questioner is simply not interested in the answer at all. Consider a recent video (released on Twitter) in which former President Trump asks a House committee to investigate specific questions regarding the possibility of interference in the 2016 presidential election. As Washington Post analyst Philip Bump points out, these questions have already been answered in federal investigations. But finding out the answers isn’t the point. The rhetorical effect of garnering support is achieved just by asking them.

Beyond the issue of authenticity, asking questions irresponsibly can have harmful consequences. Some of those consequences occur on a personal level. For example, when people from privileged social groups ask people from marginalized social groups to explain the history of their oppression, that can unjustly burden them. Regardless of the intent behind asking these questions, marginalized people can end up doing extra educational and emotional work to make up for others’ poor education.

Some questions, such as those asked in major news outlets, have far-reaching effects. As GLAAD (co-author of one of the open letters mentioned at the start of this article) notes, multiple New York Times articles have been directly cited in defense of a law criminalizing providing gender-affirming care to minors in Alabama. Put simply, the questions asked in public venues make a difference in the world, and not always for good.

These considerations make it clear that questions are subject to both factual and moral evaluation. Faulty presuppositions, bad-faith motives, and harmful consequences can all contribute to making a question problematic. “Just asking questions” isn’t always an innocent enterprise.

March 21, 2022December 14, 2022

Whose Rights Matter for Gender-Affirming Care?

photograph of youth holding small Trans Support Flag at rally

Should medical decisions involving children be up to children, parents, physicians, the state, or some combination thereof? This question has been at the core of recent issues including vaccine mandates, but it is also central to a new slate of bills targeting gender-affirming care for trans youth, which are usually supported by appeals to children’s rights.

For example, the Idaho House recently passed a bill that makes it a felony, punishable by life in prison, to provide gender-affirming medical care to trans youth, to provide permission for a minor to receive that care, or to permit a minor to travel out of state to receive care. The bill has since been blocked in the Idaho Senate, due to concerns about parental rights. Similar laws are being proposed in Tennessee, Alabama, and Iowa.

What is interesting about these bills (as well as Florida’s “Parental Rights in Education” bill) is that they are contested on the basis of a conflict between children’s rights and parents’ rights. In the case of gender-affirming medical care, whose rights matter more?

It seems that the proponents of these bills are right to say that it is the children’s rights that are primarily at stake in these decisions — not the parents’. They are wrong, however, to say that children’s rights support this kind of legislation.

Except for therapy, gender-affirming medical care begins around puberty, when children have basic reasoning and decision-making capacities and start to develop as autonomous agents. These capacities may not yet be fully developed (and young adults may not yet be socially and legally independent), but this fledgling autonomy is sufficiently developed to warrant and even require that these children are part of the medical decision-making process. However, before minimal autonomy is reached, parents and physicians should be very careful about making medical interventions to alter a child’s sexed presentation, especially given the long history of medical abuse of intersex people.

Apart from considerations about autonomy and decision-making ability, the other primary consideration is whether these interventions will help or harm the children who undergo them. Both concerns target children’s rights.

The two questions we should ask are thus: Can children who have reached puberty consent to medical intervention? And do these interventions harm or help children? For those proposing these laws, the answers are that the children cannot give informed consent and that these interventions are, on balance, harmful. But are these assertions true?

The answer to the first question is supported by ideas that children cannot yet know their gender identity and how they would like to present, or that they will transition just because it is cool, or that they will choose transition as an easy out from facing misogyny or mental health problems.

If children cannot yet know their gender identity, then it seems that puberty blockers should be recommended for even more children, as it would allow them to delay the changes their bodies undergo so that they can make informed decisions about how they would like their bodies to develop at a later date.

It also seems unlikely that being trans is cool enough to persuade children to transition on that basis alone. In 2019, 2% of high school students identified as transgender. That is hardly as popular as wearing crocs, and it comes with significant social costs.

The last rationale is usually cited in the case of trans men. Misogyny is an issue that many people assigned female at birth have wrestled with and that has informed both cis and trans folks’ gender identities, but transition is not an escape from oppression — it trades one kind of oppression for another. One might also worry that there’s a subtle misogyny in implying that people assigned female at birth are less capable of making competent decisions about their gender identity than those assigned male at birth.

Even if each of these worries were true, they would tell in favor of more care rather than less. Instead of cutting off options to children and leaving them without a good understanding of gender identity or the medical options for transition, we should be providing children with more options and with better counseling to enable effective joint decision-making. This provides children with greater autonomy than if they are left without any choice, and it allows them to explore for themselves where their feelings are coming from and what they indicate.

It is important to note that not all transgender or gender non-conforming children will choose to undergo medical procedures or the same set of medical procedures. There is a critique to be made here that our current system of medical care often prioritizes certain narratives of medical transition over others and tends to overlook the needs of those who don’t fit into these neat categories, especially non-binary people. But again, this tells in favor not of removing medical care but of improving it. We should be striving to provide adequate information to children in the decision-making process and, as the therapy begins, encourage re-evaluation of medical care and adjust that care in response to the child’s wishes.

Turn now to the second question: Even if children can give at least partial consent, is the harm done by gender-affirming care great enough to override what autonomy they have? To determine the answer to this question, we need to separate out different kinds of gender-affirming care. Though gender-affirming care encompasses a wide range of options, let’s simplify those options into the following categories: talk therapy, puberty blockers, hormonal therapy, and surgical intervention.

While talk therapy and puberty blockers present some risks, the main worries that proponents of these bills cite primarily target hormonal therapy and surgical intervention. The two major harms presented in support of this legislation are a loss of reproductive ability and the difficulties faced by retransitioners (people who transition back to their gender assigned at birth or who transition to a different gender, e.g., trans man to non-binary person). These are non-negligible considerations. But do they capture everything morally salient for decision-making?

There are other harms we should take into account that would result if these bills were to pass: an inability to medically address gender dysphoria (a psychological incongruity between one’s gender identity and presentation, which can result in psychological distress), the disruption of the patient/doctor relationship, the message that these bills send that trans youth are not seen or appreciated, the tendency of these bills to exaggerate inter-family conflicts when one parent supports a child’s gender transition and the other does not, the tendency of these laws to increase the risk that trans youth commit suicide, and the difficult to alter changes that happen after a child’s body naturally starts producing estrogen and testosterone at puberty, in the absence of puberty-blockers.

The question about access to gender-affirming care isn’t simply one about avoiding these harms — it’s also about promoting positive experiences like gender euphoria (joy felt when one’s gender lines up with one’s presentation and social relations with others). But do the worries about loss of reproductive ability and retransition override these other considerations?

With regard to retransition, several studies have indicated that only around 1% of patients regret their transition. The people who regret their transitions matter, and medical care should be tailored to prevent such regrets and address them when they arise. But the existence of very few who regret medical transition should not be used to deny gender-affirming care to others, especially when that gender-affirming care can be life-saving.

Regarding reproductive worries, many trans folks would like to have children of their own. While we are not yet to the point where trans women can bear children or trans men can produce sperm, trans women and men can rely on technologies that freeze their sperm or eggs and that allow them to produce a biologically related child in the future. Unlike surgery, hormone therapy does not necessarily make the patient infertile, though counseling is recommended to ensure that patients understand the reproductive ramifications of certain medical interventions. And the one surgery that is currently accepted for under 18 individuals is “top surgery” or double mastectomy.

These reproductive ramifications should be fully transparent to teens who are deciding what therapies to access, but these considerations alone do not seem to immediately rule out medical transition, given that they may be outweighed by a number of benefits. In addition, reproductive capacity will mean different things for different trans people, as, for example, some trans men may wish to avoid pregnancy at all for reasons of gender dysphoria.

We also tend to think that adults should have reproductive freedom in choosing whether to have a tubal ligation or vasectomy, and the teens who would have access to hormonal therapy would be much closer to adulthood and full autonomy. Given their greater autonomy, it is less worrisome to allow them to make a joint decision with potentially negative long-term ramifications.

On the whole, gender-affirming care appears to be more helpful than harmful and certainly not harmful enough to warrant overriding the autonomy of older children and young adults. Current practices of gender-affirming care rightly provide less risky treatment to younger children and more risky treatment to older teens, which mirrors the growth of autonomy and decision making through young adulthood.

Bills that would deny gender-affirming care are insidious because they take away the rights of trans youth while claiming to protect those same rights. It turns out that if we want to protect children’s rights, we need to fight legislation that would deny access to gender-affirming care.

July 12, 2016December 14, 2022

A Libertarian Perspective On Gendered Bathroom Segregation

Recently in the United States, bathroom usage rights for transgender people have come to the political fore. As a part of Title IX protections against gender discrimination in federally funded educational institutions, the Obama administration has recently ordered public schools to allow students to use whichever bathrooms they please. This should free transgender students from the unpleasantness of using what they perceive to be the wrong bathroom, or being asked to use single-user facilities (unlike and apart from their classmates).

This development is the culmination of a debate that first brewed on various college campuses across the country and later issued in various state-level “bathroom bills” that would require people to use the bathrooms that correspond with their birth certificate gender. But now that even President Obama himself is involved, this issue is unlikely to dissipate quietly and without additional relevant legislative and/or judicial action.

It’s not too difficult to see why bathrooms have historically been a focal point during times of social change. Before bathrooms became a pressure point in figuring out how transgender people should be included and accommodated publicly, they served as a literal and metaphorical site of racial tensions during the Civil Rights movement and of sexist tensions as women increasingly worked and ventured outside the home.

Hypothetically in a robustly free country, businesses and organizations would be left alone to determine their own bathroom policies, while customers would be free to visit whichever locations they like. This means in theory that businesses could choose to offer bathrooms segregated along any conceivable dimension. However, establishments with odious bathroom (and other) policies would likely fail fast.

The only places likely to thrive with such practices in place would be, for instance, small ideological clubs/foundations and houses of worship. And the existence of self-contained islands of social dissent do not threaten the liberal order. On the contrary, the protection of peaceful freedom of association is an essential feature of liberalism.

But starting from the quite non-libertarian status quo, things are much more complicated. The provision of bathrooms is already heavily regulated. For instance, overlapping and even conflicting bathroom regulations in New York City mean it’s often unclear whether a restaurant or coffee shop is in compliance with bathroom code, which depends on the number of seats, age of the building and business, and other factors.

The already-regulated status quo means that when the government declines to further regulate bathrooms, that refusal bears greater symbolic value than if public bathrooms remained a generally extra-legal issue (as in the ideal libertarian state of affairs). If it was appropriate to legally protect bathroom access for people of color and later people with disabilities, refusing to do so for transgender people suggests by implication that their status is somehow less important.

That being said, state-level bathroom laws will probably have fairly little effect in practice. It would be incredibly burdensome to actively check that bathroom visitors at any given venue were choosing the right door, regardless of whether they were supposed to use the facility corresponding to their birth gender, current legal gender, apparent gender, or personally professed gender.

Of course, acts of voyeurism and sexual assault are already criminal, so police are already empowered to prevent and investigate them whether or not they are also empowered to act as gender enforcers. Perhaps a few would-be bathroom criminals would be deterred by the prospect of getting hit with an extra charge for simply having used the wrong bathroom, but criminal penalties for sex crimes should be enough already.

Finally, we should remember that it is ok to personally disagree with the law. Even more importantly, a liberal society requires us merely to tolerate peaceful others, not to eagerly approve of everything about them in our hearts. Social conservatives have been losing the culture wars for some time and are not incorrect to feel like their ethical ideals are waning. It will take time and experience to show those uneasy with changes in bathrooms that those changes are really a non-issue. Top-down action, like that of the Obama administration, can change policies but it doesn’t necessarily win hearts and minds, and may even provoke political backlash.