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.