As Europe’s progressive welfare states are reversing course on pediatric gender medicine, the American Democratic party is circling the wagon around the controversial practice. Democrat lawmakers in California recently proposed a bill that would turn it into a “sanctuary state” for minors seeking puberty blockers. The law instructs state authorities to disregard not only the laws of other states but even court rulings on child custody if the custodial parent happens to be unapproving of medical transition.
California has been reported to use Child Protective Service to threaten parents of trans-identified teens who would like to explore alternatives to “affirming” care before transitioning their kids. It is the site of a grotesque court battle in which a trans-activist judge with a “trans child” of her own stripped a father of his custody rights for no reason other than his infidelity to the new gender fashions. Given that the Golden State has also effectively banned (by shoehorning “gender identity” into “homosexuality”) “conversion therapy” (read: exploratory talk therapy) for cross-gender identified kids; that it allows minors over twelve to consent (subject to certain conditions) to their own mental health treatments; and that it instructs medical providers and insurance companies to keep that information secret from parents, the new law has the potential to turn California into a child-driven, no-safeguarding-allowed conveyor belt into lifelong medicalization.
Meantime, the Biden administration has proposed a new round of regulations under Title IX—the 1972 law that conditions receipt of federal funding for schools on non-discrimination “on the basis of sex”—that would place even more pressure on schools across the country to defer to students’ gender self-identification. The administration claims that it is merely following the precedent laid out in Bostock v. Clayton County, but the Supreme Court in that 2020 ruling explicitly said that its ruling (which was in employment law, not education) did not turn on which definition of “sex” is correct, and in fact that nothing in the decision should be used to settle ongoing controversies over sex-specific accommodations and activities. The Department of Education’s Office for Civil Rights (OCR) is conveniently ignoring this part of Bostock, and there is good reason to believe that at least some federal courts will let OCR get away with it. Both President Biden and Rachel Levine, his transgender assistant secretary for health, have falsely claimed that “gender affirming” care is “medically necessary” and that it is “life saving.”
These efforts by Democrats to prolong and deepen one of the worst medical scandals of recent memory have little to do with science, and a lot to do with partisan calculation. In recent months, Republican lawmakers and governors have tried—often unsuccessfully—to ban pediatric medical transition, limit the female category of sports to girls and women, and—in what I think is a misguided policy—investigate parents who transition their kids. As Lisa Selin Davis has argued, whereas other countries are doing non-partisan evidence reviews and deferring to their medical authorities, in the United States the battle over pediatric gender medicine is being played out primarily in the political (and I would add, legal) realm.
Less discussed, however, is that the American response to the transgender movement is partly a consequence of a weak American state. Lay observers of American politics are prone to think that our hyper-partisanship is a result of political parties having too much power. The opposite is true: our parties are polarized because they are, institutionally speaking, weak. Whereas in parliamentary systems individual party members can typically count on their party apparatus for fundraising, campaigning, and endorsements, American politicians are largely left to their own devices. This leaves them all the more vulnerable to the influence of highly organized, well-funded, and well-connected interest groups, whose public approval or disapproval of a candidate can make or break his or her (re)election prospects. Since the middle of the previous century reformers have been weakening parties on the theory that they are a great source of corruption; that may have been true, but the void left by strong parties has been filled by energetic interest groups, and their influence has been at least as corrupting if not significantly more so.
The problem is that, unlike parties, there is no mechanism of accountability between interest groups and voters. When OCR instructs schools to be more “inclusive” toward trans students and schools are left wondering what that means in practice, risk-averse administrators understandably adopt “model policies” developed by interest groups like the Gay, Lesbian, and Straight Education Network (which, despite its name, is primarily devoted to “gender identity”) and the Human Rights Campaign (America’s Stonewall). The powerful teachers unions, who also exploit the electoral vulnerability of Democratic officials, have sided forcefully with “affirming” policies.
Almost by definition, these so-called “public interest” groups take extreme and unpopular positions on controversial policy issues. They are staffed with ambitious and ideological activists, are amenable only to donors (who may not even know what exactly recipients are doing or whether it is backed by science), and have no incentive to moderate. Democratic officials who perceive that something is askew in this de-facto delegation of regulatory responsibility to extreme interest groups and who dare raise concerns face immanent political death.
Another example of how the weak state fuels trans excess is that, unlike Sweden and Finland, there is no centralized medical authority in the United States that can act independently of political calculation and impose regulations in a hierarchal manner. Americans’ have long harbored deep suspicion toward centralized power. Our welfare state developed late relative to Europe and is politicized by design (the president can appoint over 4,000 officials, and presidents often do so based on political loyalty and policy preferences rather than neutral expertise). In practice, this decentralization cedes the role of medical authority to specialized organizations like the American Medical Association and the American Academy of Pediatrics. But here again the problem of interest group dynamics comes in. As followers of Genspect are well aware, the AAP has been captured by trans activists, who have put forth deeply flawed policy papers and then used procedural technicalities to shield themselves and their policy preferences from member criticism. When Democrats and federal judges issue regulatory decisions on pediatric transition, they invariably—and to some extent understandably—look to these groups for guidance.
I believe the United States will eventually catch up to its more sober European counterparts, but that will require strategic thinking about how to overcome the structural features of American government that make reform difficult. In the meantime, we should expect more hyperbole from Democrats about how efforts by red states like Florida to make us more like Sweden are “attacks” on the “existence” of “trans kids.”
Leor Sapir holds a Ph.D. in Political Science from Boston College and completed a postdoctoral fellowship at the Program on Constitutional Government at Harvard University. His academic work, including his dissertation on the Obama Administration’s Title IX regulations, has investigated how America’s political culture and constitutional government shape public policy on matters of civil rights.