Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
abstract. The U.S. Supreme Court is poised to address the constitutionality of state laws banning gender-affirming care for transgender youth. This Article provides a comprehensive legal analysis of these bans, uncovering a disturbing normative paradox: despite claiming to protect minors by banning gender-affirming care, these laws simultaneously endorse coercive medical interventions through clauses that permit such procedures for intersex infants. This internal contradiction turns the Court’s search for the bans’ rational basis into an exercise in irrationality, demonstrating their failure to meet even the most basic standard of constitutional scrutiny.
The Article first challenges prevailing legal narratives by considering the legal interests of trans and intersex minors as distinct yet interconnected. It then argues that the internal incoherence of gender-affirming-care bans amounts to legislative irrationality. This analysis reveals that the statutes’ only rational aim is an illegitimate one: an intent to enforce binary understandings of sex and gender on minors’ bodies, jeopardizing their health and well-being in contravention of core constitutional safeguards. Finally, the Article extends its doctrinal argument by offering a complementary normative vision, grounded in reproductive justice and critical disability studies, for minors’ bodily self-determination.
authors. Ido Katri is Assistant Professor of Law and Social Work and Lecturer in Law, Tel Aviv University. Maayan Sudai is Associate Professor of Law, University of Haifa. Authorship is alphabetical, reflecting equal partnership. The authors thank Florence Ashley, Noa Ben-Asher, Joshua Block, Morgan Carpenter, Jessica Clarke, I. Glenn Cohen, Brenda Cossman, Paisley Currah, D Dangaran, Doron Dorfman, Katie Eyer, Mauro Cabral Grinspan, Aeyal Gross, Janet Halley, Katrina Karkazis, Kobi Kastiel, Louise Melling, Yuval Moscovitz, Sarah S. Richardson, Ayden Scheim, Naomi Schoenbaum, Hila Shamir, Samuel Singer, Eden Segev Simsolo, Anne Tamar-Mattis, Oren Tamir, Zohar Weiman-Kelman, and Lihi Yona for their invaluable feedback and support. Thanks to the University of Haifa Law Faculty Seminar and the Tel Aviv University Law Faculty Research Forum for discussions that shaped this work. Special thanks to Ophrie Gabi Bashan, Maayan Pistiner, Hagai Roth, and Dorian Van Allen for research assistance, and to Max Polonsky and Rabbi Levi Weiman-Kelman for editing. Lastly, thanks to Sarah B. Shapiro, Lily Moore-Eissenberg, Beatrice L. Brown, Deja Raquel Morehead, Zachary A. Spitz, and the entire Yale Law Journal editorial team for their rigorous and transformative editing. This research was supported by a grant from the Renata Adler Memorial Research Center for Child Welfare and Protection.
Introduction
Across the United States, a grave injustice persists: the routine and nonconsensual sterilization of children. In response to this crisis, state legislators have, over the past three years, enacted laws that claim to protect minors’ bodily integrity. The laws expressly ban minors’ access to gender-affirming care.1 Ironically, while the laws prohibit certain medical procedures, including genital-related surgeries for some minors, they simultaneously permit coercive—and often sterilizing—interventions on the sex characteristics of other minors.2
Each ban, while limiting gender-affirming care for trans minors,3 effectively enables coerced sex assignments for intersex minors by excluding such practices from their scope.4 These children, whose physical realities challenge binary sex classifications, are often subjected to invasive “sex-normalizing” procedures before their second birthdays, with no effective legal oversight or meaningful protections.5
That gender-affirming-care bans exclude sex-normalizing interventions for children with intersex variations is not simply a legislative oversight. Instead, it starkly highlights these statutes’ irrationality. Enacted with the stated goal of protecting children’s health, safety, and well-being, these laws necessarily produce the opposite effect. As this Article explores, gender-affirming-care bans consistently exclude intersex interventions—exclusions enacted with little to no legislative debate and attracting almost no judicial scrutiny. Yet for every criticism leveled at gender-affirming care, intersex interventions emerge as the true offenders: they are imposed on infants who cannot consent, often cause infertility, lack medical necessity, and are far less supported by research. The disparate treatment of intersex and trans minors highlights a contradiction at the heart of these laws, setting the stage for their constitutional unraveling. Their stark inconsistency exposes a fundamental flaw that renders these bans unconstitutional: they lack any rational basis because they rest on an irreconcilable contradiction. This inconsistency is fatal to such bans’ constitutionality, irrespective of whether they discriminate based on a constitutionally suspect classification.
The legal debate over gender-affirming-care bans is rapidly evolving, indicating that the landscape of American civil rights might seismically shift. In 2023 and 2024 alone, state legislators introduced over a thousand bills affecting trans rights, almost a third of which sought to ban gender-affirming care.6 To date, twenty-six such bans have already been enacted.7 Legal challenges have emerged across the country,8 accelerating a growing federal circuit split.9
In June 2024, the Supreme Court granted the Department of Justice’s petition for certiorari, agreeing to review a Sixth Circuit decision upholding the constitutionality of Tennessee’s ban on gender-affirming care.10 The outcomes of this case and other legal battles over the bans are poised to reshape how American law understands and protects minors and possibly other historically marginalized groups.11 With a national ban on gender-affirming care looming as a real possibility, the stakes of these legal challenges—and the constitutional issues they address—have never been higher.12
In the lower courts, these debates have coalesced around key constitutional claims: equal-protection challenges brought by minors based on their sex or transgender status, parental due-process claims asserting rights to consent to their children’s health care, and challenges based on doctors’ First Amendment rights to provide such care.13 While federal circuit courts are divided on each of these questions,14 the Supreme Court has granted certiorari to address only the equal-protection issue.15
The bans’ proponents argue that they serve an acute state interest in children’s health and welfare, protecting minors from ostensibly “experimental” treatments16 that could result in sterilization or other irreversible outcomes.17 Conversely, opponents of the bans emphasize that gender-affirming care is not just a medical intervention; it is a well-established, holistic medical approach that supports the mental health and well-being of gender-variant minors.18
This Article provides a doctrinal analysis rooted in a comprehensive descriptive account of the emerging body of law shaping intersex and trans minors’ care.19 We have compiled all bills and enacted legislation that limit gender-affirming care, reviewed their exclusionary clauses, and analyzed the many court filings and judicial opinions stemming from related litigation. Our review reveals a systematic pattern with key normative implications: this entire body of law not only targets gender-affirming care but also allows sex-normalizing interventions to continue.
Commentators, scholars, legislators, and courts have largely overlooked these bans’ exclusions of normalizing interventions for intersex minors.20 These procedures are framed as necessary to “cure” differences in sex development and make these children’s bodies “normal.”21 Such reasoning is reinforced by the fact that cisgender minors receiving gender-related endocrinological or surgical interventions are also excluded from the bans.22 Under this reasoning, medical care for trans minors is tied to their gender identity and therefore prohibited, while care for intersex and cisgender minors is tied to their physical bodies and permitted. This logic treats societal ideas of “normal” bodies as medical requirements.23 It assumes that intersex bodies are “wrong” and need to be corrected to fit binary categories of male or female, while considering pretransition trans bodies “healthy” simply because they fit these same categories, even when the minors living in these bodies experience acute distress. This approach reflects social biases, not medical facts, and fails to address the specific needs and interests of trans and intersex minors.
By permitting coercive procedures for intersex minors and barring affirming care for trans minors while exempting cisgender minors from similar regulations, these bans reveal a deeper legislative agenda: enforcing sex and gender conformity. These restrictions, imposed without constitutional justification, undermine the rights of all minors and entrench societal control over their bodies.
Considering the overall regulatory framework of the bans brings into focus the tensions and challenges trans and intersex minors face. At first, these tensions might seem to reflect conflicting interests: trans minors seek medical interventions that alter their sex characteristics, while intersex advocates frequently call for restrictions on such interventions.24 Advocacy efforts further illustrate these complexities. Trans litigants have sought to protect the rights of intersex minors25—and intersex advocates have sought to support trans litigants26—yet some litigation strategies pursued by trans plaintiffs risk undermining intersex minors’ interests, and vice versa.27
Plaintiffs opposing the bans navigate limited legal frameworks in an increasingly contentious cultural climate. Their strategies are shaped by current constitutional jurisprudence and develop in response to narratives advanced by state actors. Yet there is no necessary conflict between the interests of trans and intersex minors. Rather, the perceived opposition arises from entrenched legal and cultural presumptions about sex and gender as fixed and unchanging, hindering the law’s ability to identify minors’ actual needs and protect their health and well-being.
Through our analysis of the bans’ internal inconsistencies, we demonstrate how these presumptions underpin both the prohibition of gender-affirming care for trans minors and the exclusion of nonconsensual, sex-normalizing procedures for intersex minors.28 This Article reexamines these fundamental assumptions and their influence on both litigation strategies and constitutional frameworks.29 Rather than debating the nature of sex and gender, we focus on the tangible realities of minors’ bodies, independent of legal definitions and medical classifications. Ultimately, these bans pit one group’s interests against the other’s, creating a false conflict that obscures the shared harm these restrictive policies cause to minors, adults, and the broader public interest in health and well-being. The key doctrinal question is whether it is logically coherent simultaneously to ban (for trans minors) and permit (for intersex minors) medical interventions that alter the sexed bodies into which minors are born.
The question of coherence highlights a core element uniting the interests of both groups: their consent. Both trans and intersex minors are often denied meaningful age-appropriate participation in these decisions—trans minors through bans on gender-affirming care and intersex minors through medically unnecessary, nonconsensual procedures. Thus, in addition to offering a doctrinal argument for the legislative irrationality of gender-affirming-care bans, we explore alternative normative perspectives on these laws, focusing on bodily self-determination. Drawing on reproductive-justice scholarship about pro-choice and pro-life logics and on concepts of access and assisted decision-making from disability studies, we identify three necessary conditions for bodily self-determination: freedom for gender exploration, protection against sex normalization, and safe and supportive environments. We aim to provide tools to safeguard the health and well-being of cis, trans, and intersex minors.
This Article does not attempt to merge intersex and trans issues. Instead, it explores pathways for aligning their legal demands while respecting their distinct challenges, their organizing strategies, the opposition they face, and the public perceptions of their identities and experiences. Although intersex issues are at times overshadowed by trans narratives, both groups share common legal interests. Addressing their unique needs across a variety of lived experiences is essential for ensuring fairness and justice in legal and policy frameworks.
Our analysis acknowledges the diversity within and between the trans and intersex communities, recognizing that individuals and groups under these labels have varied perspectives and experiences.30 To understand current debates on gender-affirming-care bans, we look to the stances taken by these major legal-advocacy organizations, as articulated in court filings, amicus briefs, and other formal legal documents. These sources offer insight into prevailing legal arguments and can illustrate significant points of contention and policy debate.
However, these sources are limited in that they predominantly represent formalized legal narratives and do not fully capture the heterogeneity of lived experiences or the full spectrum of community voices and experiences. Thus, while we rely on these sources alongside legal decisions, proceedings, and other court filings to outline “what the law says about itself,”31 we remain cautious of the law’s limitations, particularly its capacity to address and transform the underlying conditions of disparity and violence experienced by these communities.
Part I of this Article provides a timely descriptive account of the emerging body of law on trans and intersex medical care. We do so through an in-depth exploration of contemporary medical protocols, as well as a comprehensive legal analysis of the bans and relevant constitutional debates. Part II examines the interplay of intersex and trans legal interests. By contrasting key positions in trans and intersex advocacy, we analyze the tensions in intersex and trans legal debates and identify common ground. Part III considers the legal interests of trans and intersex minors from a collaborative perspective rather than an oppositional one. First, it evaluates the constitutionality of gender-affirming-care bans under rational-basis review, arguing that their internal incoherence amounts to legislative irrationality. It then explores a novel normative vision for bodily self-determination for both trans and intersex minors.
Rather than remaining silent on intersex interests, gender-affirming-care bans expressly exempt the same medical interventions that they deny to transgender minors when they are imposed on intersex minors. In the ensuing litigation, the pursuit of a rational basis becomes an exercise in irrationality. By prohibiting gender-affirming care while permitting sex-normalizing procedures, these bans reveal internal inconsistencies that render them unable to serve the states’ asserted interests—or any other legitimate interest. As such, these bans not only jeopardize the health and well-being of trans and intersex minors but also erode the very constitutional safeguards that should protect them.
Gender-affirming care refers to a comprehensive range of medical, mental-health, and sociolegal services aimed at helping individuals achieve lasting personal comfort with their gender identity. See E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. Transgender Health S1, S5 (2022) [hereinafter SOC8]. Interventions may include endocrinological and surgical treatments, voice and communication therapy, primary health care, hair removal, reproductive and sexual-health services, psychological counseling, and social support, all designed to alleviate acute distress and promote overall physical health, psychological well-being, and self-fulfillment. Id. Individualized and based on informed consent, gender-affirming care recognizes that each person’s needs are unique and that a given individual may not require all available interventions. See Wylie C. Hembree, Peggy T. Cohen-Kettenis, Louis Gooren, Sabine E. Hannema, Walter J. Meyer, M. Hassan Murad, Stephen M. Rosenthal, Joshua D. Safer, Vin Tangpricha & Guy G. T’Sjoen, Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869, 3872 (2017) [hereinafter Endocrine Clinical Practice Guideline]. While gender-affirming care encompasses a broad spectrum of services, bans on such care typically target specific interventions for minors, such as puberty blockers, hormone therapies, and surgeries. For further discussion, see infra Section I.A.1.
See, e.g., Ala. Code § 26-26-4 (2025); Ark. Code Ann. § 20-9-1502(a) (2025), invalidated by Brandt v. Rutledge, 677 F. Supp. 3d 877 (E.D. Ark. 2023); Fla. Stat. § 456.52(1) (2024), invalidated by Doe v. Ladapo, 737 F. Supp. 3d 1240 (N.D. Fla. 2024); Fla. Admin. Code Ann. r. 64B8-9.019 (2025); Ga. Code Ann. § 31-7-3.5 (2024); Idaho Code § 18-1506C (2025); Ind. Code § 25-1-22-13 (2024); Iowa Code § 147.164 (2024); Ky. Rev. Stat. Ann. § 311.372 (West 2024); La. Stat. Ann. § 40:1098.2 (2024); Miss. Code Ann. § 41-141-5 (2024); Mo. Rev. Stat. § 191.1720 (2024); Mont. Code Ann. § 50-4-1004 (2023); Neb. Rev. Stat. § 71-7304 (2024); N.H. Rev. Stat. Ann. § 332-M:3 (2024); N.C. Gen. Stat. § 90-21.151 (2024); N.D. Cent. Code § 12.1-36.1-02 (2023); Ohio Rev. Code Ann. § 3129.04 (LexisNexis 2024); Okla. Stat. tit. 63, § 2607.1 (2024); S.C. Code Ann. § 44-42-330 (2024); S.D. Codified Laws § 34-24-33 (2025); Tenn. Code Ann. § 68-33-103 (2025); Tex. Health & Safety Code Ann. § 161.702 (West 2023); Utah Code Ann. § 58-1-603.1 (LexisNexis 2024); W. Va. Code § 30-3-20 (2024); Wyo. Stat. Ann. § 35-4-1001 (2024).
This Article employs “trans” to encompass various identities and expressions that diverge from normative expectations linked to birth-assigned sex, including transgender, transsexual, trans nonbinary, and other gender-variant identities and experiences. For previous uses of the term in legal scholarship, see, for example, D Dangaran, Bending Gender: Disability Justice, Abolitionist Queer Theory, and ADA Claims for Gender Dysphoria, 137 Harv. L. Rev. F. 237, 242 (2024); and Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 897-98 (2019).
“Intersex” is employed here as an umbrella term for people whose sex characteristics vary from the male/female binary. Other terms—notably, Disorders/Differences of Sex Development (DSD)—have been criticized for their pejorative connotations and for seemingly pathologizing benign conditions. See Morgan Carpenter, Intersex Variations, Human Rights, and the International Classification of Diseases, 20 Health & Hum. Rts. J. 205, 207-08 (2018); Elizabeth Reis, Divergence or Disorder?: The Politics of Naming Intersex, 50 Persps. Biology & Med. 535, 536-37 (2007). We thus use “intersex” instead, as the term is prevalent in social, advocacy, and legal spheres and aims to facilitate collective action and center human rights. See Carpenter, supra, at 207-08; Reis, supra, at 536-37.
For detailed explorations of standard medical care for intersex minors, see generally discussion infra Section I.A.2; and Iain Morland, Intersex, 1 Transgender Stud. Q. 111 (2014), which notes that intersex-related diagnoses often medicalize bodies solely because they do not conform to traditional sex classifications, thus driving physicians to initiate treatments in infancy—often without apparent medical necessity.
Minami Funakoshi & Disha Raychaudhuri, The Rise of Anti-Trans Bills in the US, Reuters (Aug. 19, 2023), https://www.reuters.com/graphics/USA-HEALTHCARE/TRANS-BILLS/zgvorreyapd [https://perma.cc/TW5Q-TPZ4] (providing a comprehensive review of laws and bills limiting gender-affirming care); Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legis. Tracker, https://translegislation.com/learn [https://perma.cc/BA96-9BXA] (providing a breakdown of total anti-trans bills by category from 2015-2024); see also Christy Mallory & Elana Redfield, The Impact of 2023 Legislation on Transgender Youth, Williams Inst. 1 (2023), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/Y99C-LL38] (providing an overview of five hundred bills related to gender-affirming care); Annys Shinn, N. Kirkpatrick & Anne Branigin, Anti-Trans Bills Have Doubled Since 2022. Our Map Shows Where States Stand., Wash. Post (May 19, 2023, 7:01 AM EDT), https://www.washingtonpost.com/dc-md-va/2023/04/17/anti-trans-bills-map [https://perma.cc/RHY7-59LX] (documenting over four hundred bills); Susan Jaffe, More US States Ban Teenagers’ Gender-Affirming Care, 402 Lancet 839, 839-40 (2023) (discussing the implications of state-level bills for public health and human rights).
See, e.g., Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (M.D. Ala. 2022), vacated sub nom. Eknes-Tucker v. Governor of Ala., 80 F.4th 1205 (11th Cir. 2023); Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021), aff’d sub nom. Brandt ex rel. Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 2022); Doe v. Ladapo, 737 F. Supp. 3d 1240 (N.D. Fla. 2024), stayed sub nom. Doe v. Surgeon Gen., No. 24-11996, 2024 WL 4132455 (11th Cir. Aug. 26, 2024); Koe v. Noggle, 688 F. Supp. 3d 1321 (N.D. Ga. 2023); Poe ex rel. Poe v. Labrador, 709 F. Supp. 3d 1169 (D. Idaho 2023), stayed in part, 144 S. Ct. 921 (2024); K.C. v. Individual Members of Med. Licensing Bd., 677 F. Supp. 3d 802 (S.D. Ind. 2023), rev’d, 121 F.4th 604 (7th Cir. 2024); Doe v. Thornbury, 679 F. Supp. 3d 576 (W.D. Ky. 2023), rev’d sub nom. L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023); Order and Entry Granting Plaintiffs’ Motion for Temporary Restraining Order, Moe v. Yost, No. 24CVH03-2481 (Ohio Ct. Com. Pl. Apr. 16, 2024); Verified Petition for Declaratory and Permanent Injunctive Relief, Soe ex rel. Soe v. La. State Bd. of Med. Exam’rs, No. 2024-172 (La. Civ. Dist. Ct. Jan. 8, 2024); Petition for a Temporary Restraining Order, Injunctive Relief, and Declaratory Relief, Southampton Cmty. Healthcare v. Bailey, No. 23SL-CC01673 (Mo. Cir. Ct. Apr. 24, 2023); Order, Noe v. Parson, No. 23AC-CC04530 (Mo. Cir. Ct. Aug. 25, 2023); First Amended Complaint, Van Garderen v. State, No. DV-23-541 (Mont. Jud. Dist. July 17, 2023); Planned Parenthood of the Heartland, Inc. v. Hilgers, 9 N.W.3d 604 (Neb. Dist. Ct. 2024); Voe v. Mansfield, No. 23CV864, 2024 WL 5120258 (M.D.N.C. Dec. 16, 2024); Complaint, Dolney ex rel. T.D. v. Wrigley, No. 08-2023-CV-02189 (N.D. Dist. Ct. Sept. 14, 2023); Poe v. Drummond, 697 F. Supp. 3d 1238 (N.D. Okla. 2023), appeal docketed, No. 23-5110 (10th Cir. Oct. 10, 2023); L.W. ex rel. Williams v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023), rev’d, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024); Loe v. State, No. 23-0697, 2023 WL 5519799 (Tex. Dist. Ct. Aug. 25, 2023), rev’d, 692 S.W.3d 215 (Tex. 2024); In re Abbott, 645 S.W.3d 276 (Tex. 2022).
Eknes-Tucker, 80 F.4th at 1210-11 (vacating the district court’s preliminary injunction enjoining the enforcement of the Alabama ban); Brandt, 47 F.4th at 667 (affirming a preliminary injunction against the enforcement of the Arkansas ban); Doe v. Surgeon Gen., 2024 WL 4132455, at *3 (staying a preliminary injunction against the Florida ban); Order at 1, Poe v. Labrador, No. 24-142 (9th Cir. Jan. 30, 2024) [hereinafter Labrador Denial of Stay] (denying a motion to stay a preliminary injunction against the enforcement of the Idaho ban); Skrmetti, 83 F.4th at 491 (reversing a preliminary injunction against the enforcement of the Tennessee and Kentucky bans).
Gender-affirming-care bans and the constitutional questions they raise have attracted scholars’ attention. See, e.g., Developments in the Law—Outlawing Trans Youth: State Legislatures and the Battle over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2178-85 (2021) [hereinafter Outlawing Trans Youth] (analyzing from a constitutional perspective the onset of the legislative trend against gender-affirming care and noting the intersex exclusion); Marc Spindelman, Trans Sex Equality Rights After Dobbs, 172 U. Pa. L. Rev. Online 1, 2 (2023) (observing that federal adjudication on the constitutionality of the bans may impact public faith in the rule of law); Jessica Matsuda, Note, Leave Them Kids Alone: State Constitutional Protections for Gender-Affirming Healthcare, 79 Wash. & Lee L. Rev. 1597, 1601 (2022) (arguing that state constitutional challenges are best suited to block the bans); Greg Mercer, Note, First, Do No Harm: Prioritizing Patients over Politics in the Battle over Gender-Affirming Care, 39 Ga. St. U. L. Rev. 479, 495-96 (2022) (exploring the constitutional entanglements created by the bans); Dominic Bayer, Child Gender Transition Bans and the Constitution: The Equal Protection Clause and Bostock, 3 Regent U. L. Rev. Pro Tempore 1, 4 (2022) (arguing that prohibitions on gender-affirming care are appropriate uses of state power under the Equal Protection Clause). See generally Anne Alstott, Melisa Olgun, Henry Robinson & Meredithe McNamara, “Demons and Imps”: Misinformation and Religious Pseudoscience in State Anti-Transgender Laws, 35 Yale J.L. & Feminism 223 (2024) (analyzing the role of misinformation and religious pseudoscience in the development of anti-transgender laws, offering critical insights into their flawed ideological foundations); Erik Fredericksen, Note, Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection, 132 Yale L.J. 1149 (2023) (exploring the application of equal-protection principles to anti-transgender policies and providing a constitutional framework for analysis); Ali Libertella, State Actors to Ban Gender-Affirming Care for Minors and the Ways Forward, 44 Colum. J. Gender & L. 404 (2024) (discussing the actions of state actors in implementing gender-affirming-care bans and proposing strategies for legal and policy responses); John Mejia, Examining the Constitutionality of Legislative Medical Care Bans for Transgender Youth, 2024 Utah L. Rev. 861 (evaluating the constitutionality of bans and addressing key legal arguments and judicial decisions relevant to ongoing challenges); Lindsay Sergi, The Networks: The Coordinated Mobilization of Doctors for Bans on Gender-Affirming Healthcare for Minors, 25 Geo. J. Gender & L. 1263 (2024) (investigating the coordinated efforts of medical professionals in advocating for gender-affirming-care bans); Lois A. Weithorn, The Intrusive State: Restrictions on Gender-Affirming Healthcare for Minors, Exceptions to the Doctrine of Parental Consent, and Reliance on Science and Medical Expertise, 75 UC L.J. 713 (2024) (examining the constitutional implications of gender-affirming-care bans, focusing on their intrusion into family decision-making and the misuse of scientific evidence).
Notably, the bans are part of wider legislative efforts targeting trans minors and adults not only in health care but also in education, athletics, parental rights, and more. Further, our analysis of trans and intersex interests raises broader issues, including access to public goods, discrimination, and reproductive rights. These wider legislative trends and broader issues exceed this Article’s scope, suggesting areas for future research. See, e.g., Noa Ben-Asher & Margot J. Pollans, Gender Regrets: Banning Abortion and Gender-Affirming Care, 2024 Utah L. Rev. 763, 790 (arguing that conservative ideas about abortion are interrelated with restrictions on gender-affirming care); Grace Worcester, Note, States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers, 108 Minn. L. Rev. 2755, 2769-96 (2024) (examining state obligations under Medicaid to provide puberty blockers for transgender youth, highlighting the legal tensions between healthcare access and state restrictions).
See Donald J. Trump, President Trump’s Plan to Protect Children from Left-Wing Gender Insanity, DonaldJTrump.com (Feb. 1, 2023), https://www.donaldjtrump.com/agenda47/president-trumps-plan-to-protect-children-from-left-wing-gender-insanity [https://perma.cc/3R7E-3SAU] (proposing “a law prohibiting child sexual mutilation in all 50 states”). The Trump Administration recently issued an executive order directly targeting gender-affirming care for minors and adolescents. See Protecting Children from Chemical and Surgical Mutilation, Exec. Order No. 14,187, 90 Fed. Reg. 8771 (Feb. 3, 2025). If implemented, the order would significantly restrict access to such care across both healthcare providers and payers. This order has already been challenged in court, and the U.S. District Court for the District of Maryland issued a preliminary injunction blocking its enforcement. Complaint for Declaratory and Injunctive Relief at 1-3, PFLAG, Inc. v. Trump, No. 25-cv-00337 (D. Md. Feb. 4, 2025); Order at 1, PFLAG, Inc., No. 25-cv-00337 (D. Md. Mar. 4, 2025) (granting plaintiffs’ motion for a preliminary injunction).
Claims about parental authority take the form of substantive-due-process claims. See generally Weithorn, supra note 11 (discussing parental-authority challenges to the bans). Claims on medical authority have been instantiated through free-speech arguments. Although these claims are important aspects of current litigation concerning gender-affirming-care bans, an in-depth descriptive or doctrinal analysis of the bans’ substantive-due-process and free-speech implications is beyond the scope of the Article.
See, e.g., L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 488 (6th Cir. 2023) (concluding that a lack of scientific consensus serves as persuasive evidence that states may formulate their own, possibly divergent, child-welfare strategies with respect to gender-affirming care), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).
The Article focuses on bans in the United States, which reflect the country’s unique sociopolitical and legal context and the related implications for medical interventions for trans and intersex minors. Although our doctrinal analysis centers on U.S. legislation and cases, our normative framework may have global relevance. Despite this potential, a comparative legal analysis with other regions is beyond the scope of this Article. Future research would greatly benefit from a more expansive comparative approach that offers a deeper global perspective on the challenges faced by trans and intersex communities.
Among law-review publications, only this Article and a forthcoming article by Holning Lau and Barbara Fedders have focused extensively on intersex exceptions. See generally Holning Lau & Barbara Fedders, Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, 36 Yale J.L. & Feminism (forthcoming 2025), https://ssrn.com/abstract=4935674 [https://perma.cc/SMK5-7HBZ] (highlighting intersex exceptions in gender-affirming-care bans and arguing that these laws violate equal protection and undermine parents’ constitutional right to make informed, individualized decisions about their children’s health). For more peripheral discussions of intersex carve-outs in gender-affirming-care bans, see Kathleen Kassa & Alexander J. Merritt, Health—Regulation and Construction of Hospitals and Other Health Care Facilities, 40 Ga. St. U. L. Rev. 127, 142 n.85 (2023), which focuses on legislative intent and its constitutional implications, with a footnote critiquing intersex carve-outs as a revealing inconsistency; and Zee Scout, Trans Erasure, Intersex Manipulation: The First Amendment and Other Reflections from Women in Struggle v. Bain, 47 Harv. J.L. & Gender 111, 114-17, 164 (2024), which argues that intersex exceptions reinforce binary norms and harm intersex individuals while erasing nonbinary identities. For additional discussions of gender-affirming-care bans that, though they do not address intersex carve-outs, contribute to understanding the broader legal and policy landscape, see generally sources cited supra note 11.
Courts have also largely ignored intersex exceptions. For instance, despite describing gender identity in its decision blocking the Florida ban, the district court in Doe v. Ladapo noted that it does not concern itself with intersex issues: “With extraordinarily rare exceptions not at issue here, every person is born with external sex characteristics, male or female, and chromosomes that match.” 737 F. Supp. 3d 1240, 1255 (N.D. Fla. 2024), stayed sub nom. Doe v. Surgeon Gen., No. 24-11996, 2024 WL 4132455 (11th Cir. Aug. 26, 2024). However, some expert declarations on behalf of the plaintiffs in Skrmetti did indicate concerns about intersex minors’ well-being. See, e.g., Expert Declaration of Armand H. Matheny Antommaria at 23-24, L.W. ex rel. Williams v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023) (No. 23-CV-00376).
For example, in its brief to the Supreme Court, Tennessee used the allowance of procedures for congenital defects to suggest that its ban was narrowly tailored to prohibit only harmful interventions. See Brief for Respondents at 5-7, United States v. Skrmetti, No. 23-477 (U.S. Sept. 3, 2024). This distinction implicitly reinforces the logic that treatments aligning bodies with binary norms are necessary and beneficial. This distinction underpins the “cure logic” by treating normalization as a medical imperative while framing gender-affirming care as dangerous and illegitimate.
For example, cisgender minors might undergo endocrinological interventions to avoid early onset of puberty. See Erica A. Eugster, Treatment of Central Precocious Puberty, 3 J. Endocrine Soc’y 965, 967-68 (2019). They might also undergo gender-related surgical interventions, such as those to remove excessive breast tissue for males or increase breast size for females. See G.A. Kanakis, L. Nordkap, A.K. Bang, A.E. Calogero, G. Bàrtfai, G. Corona, G. Forti, J. Toppari, D.G. Goulis & N. Jørgenson, EAA Clinical Practice Guidelines—Gynecomastia Evaluation and Management, 7 Andrology 778, 779-80 (2019). See generally Sebastian Winocour & Valerie Lemaine, Hypoplastic Breast Anomalies in the Female Adolescent Breast, 27 Seminars Plastic Surgery 42 (2013) (discussing surgeries to increase breast size in adolescent girls). For examples of diagnoses for which cisgender youth receive these treatments, see Brief of Experts on Gender Affirming Care as Amici Curiae in Support of Petitioner and Respondents in Support of Petitioner at 12-15, Skrmetti, No. 23-477 (U.S. Sept. 3, 2024).
Noa Ben-Asher was among the first to discuss the legal aspects of this tension. See Noa Ben-Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 Harv. J.L. & Gender 51, 55 (2006); see also Marie-Amélie George, Expanding LGBT, 73 Fla. L. Rev. 243, 319 (2021) (“National LGBT rights groups’ strategies have tended to marginalize nonbinary interests, while overwhelmingly ignoring intersex and asexual rights.”). Intersex scholarship has long discussed intersex history and medical care in conjunction with trans history and medical care, noting the similarities and differences in their interests. See, e.g., Georgiann Davis, Contesting Intersex: The Dubious Diagnosis 31 (2015); Katrina Karkazis, Fixing Sex: Intersex, Medical Authority, and Lived Experience 242-43 (2008); Ulrike Klöppel, Who Has the Right to Change Gender Status? Drawing Boundaries Between Inter- and Transsexuality, in Critical Intersex 171, 171 (Morgan Holmes ed., 2016); Cary Gabriel Costello, Intersex and Trans* Communities: Commonalities and Tensions, in Transgender and Intersex: Theoretical, Practical, and Artistic Perspectives 83, 83-84 (Stefan Horlacher ed., 2016); Hida Viloria, Born Both: An Intersex Life 310-12 (2017).
See, e.g., Brief for Amicus Curiae interACT: Advocates for Intersex Youth in Support of Petitioner at 31, Skrmetti, No. 23-477 (U.S. Sept. 3, 2024) [hereinafter Amicus Brief for interACT] (“In restricting transgender minors’ access to gender-affirming care while endorsing harmful ‘normalizing’ interventions on non-consenting intersex infants, SB 1 elevates the enforcement of sex stereotypes over children’s safety and well-being.”).
For example, trans plaintiffs may advocate for parental rights to secure minors’ decision-making capacity and support medical professionals’ ability to provide gender-affirming care. While emphasizing the minor’s agency, they do not explicitly advocate granting parents or doctors overriding authority. Still, this approach differs fundamentally from intersex advocacy. Intersex litigation often challenges early interventions performed on those too young to participate in decisions and thus would likely oppose strengthening parental and medical authority over such procedures. For further discussion, see infra Sections II.A-B.
Cf. Ben-Asher & Pollans, supra note 11, at 766 (arguing that conservative ideas about abortion are interrelated with restrictions on gender-affirming care); Jules Gill-Peterson, A Short History of Trans Misogyny 10-13 (2024) (illustrating historical change in social ideas regarding the fungibility of gender); Noa Ben-Asher, Transforming Legal Sex, 102 N.C. L. Rev. 335, 392 (2024) (arguing that the rationale of laws “against transgender children and youth” is that gender-variant “children and adults are not desirable social outcomes”).
The U.S. trans and intersex legal movements encompass a wide array of stakeholders, including advocacy groups engaged in litigation, such as interACT, Lambda Legal, the National Center for Lesbian Rights, and the American Civil Liberties Union. Although this Article focuses on the U.S. context, it is important to note that intersex and trans advocacy is global. See OII Intersex Network, Org. Intersex Int’l, https://oiiinternational.com [https://perma.cc/8CRY-2EBV] (listing organizations that advocate for intersex rights internationally); Services, InterAction Health & Hum. Rts., https://interaction.org.au/category/articles/services [https://perma.cc/RUN3-CVDL] (describing an Australian intersex advocacy organization’s focus on law reform and policy); Programs, Org. Intersex Int’l Eur., https://www.oiieurope.org/programs [https://perma.cc/5YG9-LUBJ] (advocating for intersex rights in Europe). See generally Tomás Javier Ánzola Rodriguez et al., Joining Forces: Local Activists and Allies Advancing Trans Rights Worldwide, Int’l Network of C.L. Orgs. (May 2022), https://inclo.net/wp-content/uploads/2024/02/Joining-Forces.pdf [https://perma.cc/VJ5U-EEYJ] (describing transnational trans advocacy by transgender activists and human-rights lawyers); Zhan Chiam, Sandra Duffy, Matilda González Gil, Lara Goodwin & Nigel Timothy Mpemba Patel, Trans Legal Mapping Report: Recognition Before the Law, ILGA World (3d ed. 2019), https://ilga.org/wp-content/uploads/2023/11/ILGA_World_Trans_Legal_Mapping_Report_2019_EN.pdf [https://perma.cc/P5FU-VCGT] (describing global laws recognizing trans people’s right to change identity markers and highlighting trans voices and their experience of criminalization worldwide).
See Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 7-8 (Duke Univ. Press rev. ed. 2015) (2011) (adopting a cautious approach to “believ[ing] what the law says about itself since time and again the law has changed, been declared newly neutral or fair or protective, and then once more failed to transform the conditions of disparity and violence that people were resisting”).