June 10th 2023: a small number of white supremacists protesting outside Disney World Orlando, in solidarity with Governor DeSantis
Towards the end of 2022, I published this piece about DeSantis and his attacks on trans healthcare in Florida. It seems like a very long time ago now, so much has happened since then.
Today Florida’s 100,000 plus trans population are terrified. They and their loved ones are living in constant fear. Unknown numbers – certainly hundreds, possibly thousands – have become, or will shortly become refugees: forced to flee the state which has been their home for their entire lives, because continuing to live there is simply no longer a palatable option. I’ve been speaking to several of them, and I’ll be returning to their stories in future articles.
Among the constant barrage being levelled at the trans population were two devastating bombshells. The bathroom bill, HB 1521, requires people to use bathrooms corresponding to their birth sex when using publicly owned facilities. Anyone (including non-residents) who makes one misstep and is reported to the authorities is at risk of being criminalised. And the trans healthcare ban, SB 254, makes it difficult if not impossible not only for trans minors, but for most trans adults as well, to access essential gender-affirming healthcare.
These bills, seen by DeSantis as flagship policies, address problems that don’t exist. There is no evidence that cis women are being harmed as a result of sharing bathroom facilities with trans women. While there is overwhelming evidence that the provision of gender-affirming healthcare to trans people of all ages does them more good than harm.
As I’ll show in this article, the claims of a scientific basis for the healthcare ban are a hollow sham. The justification given by DeSantis when signing the bill – “This will permanently outlaw the mutilation of minors” – is no more than rabble rousing rhetoric. If you really want to talk about child mutilation, in Florida, child beauty pageants involving the sexualisation of pre-pubescent girls are thriving, and it’s still legal for 16 year olds to get tattoos – yet neither of these things are campaigning issues for Ron DeSantis.
None of the legislation is even that popular. Polls in 2022 and 2023 showed that “Don’t Say Gay” is opposed by 62% of Americans, drag bans by 58% of Americans, outright bans on gender-affirming care for minors by 54% of Americans. Even in Florida, 54% told pollsters in 2022 that gender-affirming care should be available to minors. These numbers look even more impressive when you consider that they were obtained in the midst of a massive moral panic. Sadly, support for bathroom bans has risen sharply amid the moral panic, from 35% of Americans in 2016 to 52% in 2022.
The fact that there’s so little justification of any kind for the legislation makes it vulnerable, particularly to court action. So how and why did this situation come about ?
Weaponising free speech
The anti-LGBT agenda that we’re seeing now is an offshoot of a conservative free speech movement that’s been gathering pace over the past couple of decades. Back in the 60s and 70s, the main champions of free speech were the left. The conservatives big idea was to take everything that free speech had once represented, and stand it on its head. Instead of being a protective shield for radicals, artists and activists, it became a sword for far right politicians, shock jocks, racists and twitter trolls. The right to free speech became the right to offend, to insult and abuse, to subject the world to nastiness and intolerance. It speaks volumes that Elon Musk, one of the richest and most powerful men on the planet is one of the foremost champions of free speech: it’s remarkable how often it’s used as a weapon by the powerful against the powerless, by those with ready access to the money and resources to be able to take cases to court.
In reality, it’s an abuse of language. A movement dedicating to getting its voice heard while never extending the same protections to those with whom they disagree, a movement that uses the law as a battering ram to silence opposition and criminalise protestors, and a movement that consistently campaigns against minority groups and the organisations representing them, is no friend to free speech.
The 2016 Presidential campaign, and Trump’s election, opened the floodgates to hell. Trump’s presence in the White House and his outrageous behaviour acted as a daily reminder that nothing was off limits: no beliefs too outlandish, no speech too hateful. The main beneficiaries of course weren’t ordinary working people, but some of the biggest corporations and well-funded lobby groups in America. Among these was a non-profit organisation called Alliance Defending Freedom (ADF).
ADF is a Christian fundamentalist group whose campaigning is centred around outlawing abortion and destroying LGBT rights. (Yeah, nice people.) Since 2017 they’ve been working closely with other conservative groups notably around anti-trans bills and lawsuits. ADF’s role during this period in drafting a lot of the anti-trans legislation has been no secret, but what was less apparent was the extent to which all this was driven by a narrowly based conservative alliance with right wing Christian values. A few weeks ago, a huge leak of their emails yielded a lot of information about who was a part of this network and what their agenda was. Zinnia Jones has also published research on https://genderanalysis.net/ showing how, back in 2017, ADF were meeting regularly with the Florida-based American College of Pediatricians (ACPeds) (who share all of ADF’s values) and taking about how to put together legal challenges.
Why does all this matter ? Here’s why: to get trans healthcare bans passed, they had to do everything possible to undermine established medical science. Instead of speaking to reputable scientists, ADF chose to consort with an extreme fringe organisation. They paid ACPeds thousands of dollars – not to conduct research in a spirit of scientific enquiry, but to defend a conclusion that had already been arrived at before any “evidence” was produced. That’s exactly what ACPeds did. And DeSantis’s stooges on the Florida Medical Board and the Florida Senate went along with it. They commissioned as “experts” a string of ACPeds hacks – Quentin van Meter, Michelle Cretella, Paul Hruz, Kevin Donovan, Andre van Mol – to throw mud at the established medical authorities, and uncritically accepted all this as evidence.
What are they thinking ?
Webster Barnaby, defending the bathroom ban in Florida House of Representatives, April 2023 – “We have people that live among us today on planet Earth that are happy to display themselves as if they were mutants from another planet.”
Randy Fine, defending the drag ban in Florida House of Representatives, April 2023 – “If it means erasing a community because you have to target children, then, damn right, we ought to do it!”
Jeff Holcomb, arguing that the US military should be less inclusive in Florida House of Representatives, May 2023 – “Our terrorist enemies hate homosexuals more than we do.”
Shocking though it is to hear elected representatives say such vile things out loud, it won’t be a massive surprise that those supporting Don’t Say Gay and supporting the barrage of anti-trans legislation include some very bigoted homophobes and transphobes.
For many of them though, this can’t be the reason why they came into politics. Surely there must be some Florida Republicans who believe that trans people deserve respect and the right to live a life free from discrimination (or at least tell themselves that they do).
The groups Conservatives Against Discrimination oppose anti-LGBT legislation on grounds of principle. They don’t think it’s the role of the state to interfere in personal freedoms. In 2020 they optimistically tweeted that “there’s a growing majority of conservatives who believe gay and transgender people should be protected from discrimination.”
I’m not sure that this has ever been a mainstream position in the Republican Party, but it does have some history. In 1978 John Briggs, a Republican senator in California, sponsored Proposition 6, an attempt to remove all gay teachers from their jobs. Surprisingly (in view of his later record as President), ex-Governor Ronald Reagan opposed the measure, saying “I don’t approve of teaching a so-called gay lifestyle in our schools. But Proposition 6 has the potential of infringing on basic rights of privacy and perhaps even constitutional rights.” A group calling themselves Log Cabin Republicans was set up to campaign against Proposition 6. Briggs’s bill was defeated, and Log Cabin Republicans remain the largest LGBT advocacy group in the Republican Party to this day.
Social conservatives have always known what buttons to press to win support for an anti-LGBT agenda within the Republican Party: defending family values, and protecting children. Most of the time it works pretty well for them. The Free Speechers and the Trumpians upped the ante, playing on more primal fears. Their audiences learned to fear a world where sinister leftist forces were scheming to destroy American values and the American way of life. Trans people were ‘othered’ and constantly portrayed as a threat.
The Log Cabin movement buckled under the pressure. Some left the Party; many of those who remained (like Caitlyn Jenner) supported Trump and supported at least some of the anti-LGBT laws. In 2019 the Log Cabin Republicans endorsed Trump’s re-election campaign, prompting further resignations.
There was at least one Republican in Florida who jumped ship. Two years after leaving office as Republican Governor, Charlie Crist became a registered Democrat. One reason, he says, was seeing how the GOP was turning into a nasty party: “my mother and father taught my three sisters and me to treat everybody well – we’re all children of God – and I saw how the party, some of them, were treating the African-American president, and I couldn’t take it anymore.”
In 2022 Crist ran against DeSantis for governor as the Democrat nominee. Crist received strong backing from LGBT groups, and spoke consistently in support of trans people. For example in 2021 when Florida enacted a ban on trans girls from competing in female sports at schools and colleges, he tweeted “I have a different message to every trans kid in Florida: you are welcome here and you are loved. And millions of Floridians feel the same way as I do — and we’re ready to fight for your right to play and live as exactly who you are.”
Florida Republicans may well say that they’d never have nominated Crist if he’d been saying these things 20 years ago. And therein lies the problem. While there undoubtedly are some Republicans who think differently on these issues, there’s not enough of them to get their own candidates elected. So it was that every last elected Republican representative voted for DeSantis’s bills.
Judge Robert Hinkle strikes back
Last year, I reported that former state attorney Andrew Warren who’d been suspended by DeSantis after signing a statement against criminalising abortion was suing the Governor. The case was heard by Judge Robert Hinkle, who found that Warren had indeed been targeted and then suspended for being a reform prosecutor; that DeSantis had no right to suspend Warren on the basis of political disagreements; that DeSantis was in breach of Florida’s constitution; and that DeSantis had also violated the First Amendment. Having said all this, he dismissed Warren’s claim as it had been brought incorrectly. Warren is still taking this through the courts.
A few months later Hinkle was called on to pass judgement on one of DeSantis’s core policies, the trans healthcare ban. The suit was brought by seven parents of transgender children who had lost access to puberty blockers as a consequence of SB 254. On 6th June Hinkle delivered his judgement, granting an injunction preventing the ban on puberty blockers in Florida from being enacted. This is far from the final word on SB 254. The injunction is only temporary until higher courts have considered the case, and as America’s courts are so politicised, it’s entirely possible that DeSantis could still win this. There are other court cases pending, dealing with other aspects of SB 254. I want to dwell here though on what Hinkle said in his judgement, which is a brilliant summary of everything that’s wrong about the attack on transgender healthcare.
Hinkle’s opening remarks made headlines around the world:
“The elephant in the room should be noted at the outset. Gender identity is
real. The record makes this clear. The medical defendants, speaking through their
attorneys, have admitted it. At least one defence expert also has admitted it. That
expert is Dr Stephen B. Levine, the only defence expert who has actually treated a
significant number of transgender patients. He addressed the issues
conscientiously, on the merits, rather than as a biased advocate.”
What makes this all the more remarkable is that the Plaintiff’s solicitors had filed a motion to exclude Dr Levine’s testimony on grounds of his extreme prejudice !
Hinkle acknowledges that many people dispute that gender identity is real –
“Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence. In this litigation, the medical defendants have explicitly acknowledged that this view is wrong and that pushing
individuals away from their transgender identity is not a legitimate state interest.”
He points out that two of the defence “experts”, Paul Hruz and Patrick Lappert, neither of whom have ever treated anyone seeking gender-affirming care, have explicitly advocated the view that gender identity isn’t real; and poses the question, is it the case that some of the other defence experts believe the same thing.
Looking at the individual cases before him, Hinkle has this to say:
“I find that the plaintiffs are likely to succeed on their claim that they have obtained appropriate medical care for their children to this point, that qualified professionals have properly evaluated the children’s medical conditions and needs in accordance with the well-established standards of care, and that the plaintiffs and their children, in consultation with their treating professionals, have determined that the benefits of treatment with puberty blockers, and eventually with cross-sex hormones, will outweigh the risks. I find that the plaintiffs’ ability to evaluate the benefits and risks of treating their individual children this way far exceeds the ability of the State of Florida to do so. I find that the plaintiffs’ motivation is love for their children and the desire to achieve the best possible treatment for them. This is not the State’s motivation.”
This could not be a more powerful and timely statement. An entire industry has grown up in recent years, supported by well-funded lobby groups claiming to be dedicated to protecting children, asserting that puberty blockers do harm, that they’re a form of mutilation, and that they’re being pushed on children and parents without proper consideration of the risks. Much of this is bad faith argument from people who don’t believe in any form of gender-affirming care. If it’s right for gender-affirming care to exist, then it’s also right that the care provided should be determined by medical professionals working closely with families, and not by the state of Florida.
Hinkle goes on to demolish the main planks of the defence case, which are identical to the arguments being used in other states to restrict transgender healthcare.
“Low quality” evidence
Opponents of puberty blockers claim that this is experimental medicine, in much the same way that antivaxxers demonise Covid vaccines by portraying them as experimental. Arkansas, Louisiana and Ohio bills even share the same name, the Save Adolescents from Experimentation (SAFE) Act. The claim however is completely unfounded. Unlike experimental drugs which are still under trial, puberty blockers have been prescribed for decades, and have been endorsed for use by reputable medical associations.
It’s true that the evidence base isn’t as strong as one would like. This isn’t uncommon in the medical world where decisions often have to be made on the best data available. Decision makers must consider whether the known risks are acceptable, and whether trials and practice have shown that a treatment does far more good than harm. For example Dr Hilary Cass, who made much in her interim report about gaps in the evidence base for puberty blockers, didn’t at any point suggest that puberty blockers should be banned.
Hinkle again hits the nail on the head. It’s not only about the research – “there is now extensive clinical experience showing excellent results from treatment with puberty blockers and cross-sex hormones. If these treatments are prohibited, many patients will suffer needlessly.”
Risks attendant to treatment
In assessing risk, medical authorities must weigh up the risks of prescribing versus the risks of not prescribing. There’s a ton of evidence that they never had any serious intention of doing this.
Exhibit one: this letter from 2022 from over 300 healthcare professionals, warning of the risks that a ban would entail. Brushed under the carpet by the Board of Health.
Exhibit two: meeting of Florida Board of Medicine Panel on 28th October 2022. The first nine speakers selected to offer public comment were all anti-trans detransitioners. After this, only six pro-trans and six anti-trans people were allowed to address the panel. The obvious implication is that the detransitioners experiences were considered by the panel to be more relevant / more valid. But how can they make that judgement without first taking into account the prevalence of regret, and the potential harm that could be caused by denying treatment.
Exhibit three: DeSantis’s State of the State address earlier this year. In it, he paid tribute to Chloe Cole:
“Our children are not guinea pigs for science experimentation and we cannot allow people to make money off mutilating them. Chloe Cole is now a young adult, but she was receiving puberty blockers at age 13 and she underwent a double mastectomy at age 16. She’s now an advocate against allowing these procedures for our children. Chloe, thank you for your bravery and the people of Florida and the legislature should heed your advice and provide protections against these procedures.”
One small detail that he omitted to mention was that Chloe is a Californian teenager who’d been bussed in for the occasion. Why were the voices of Florida’s youth not being given a platform ? And could the reason be that relatively few of them supported what DeSantis was doing ? Whatever the reasons, it’s crystal clear that DeSantis was only interested in hearing from those with negative experiences of care.
For me, this is one place where Hinkle’s judgement falls short. This was his opportunity to comment on the testimony of the detransitioners that lies at the heart of the defence case, and I believe that’s what he should have done. The general points to be made are that (a) the state haven’t properly evaluated how common regret and detransition are, (b) the fact that nearly all of the detransitioners who gave statements are from other states amplifies concerns about how relevant some of this evidence is, and (c) the state has failed to demonstrate that it’s taken proper consideration of the views and experiences of trans kids and their families.
No one should seek to minimise the detransitioners stories, some of which are very troubling. Zoe Hawes says that she was diagnosed with gender dysphoria at 16, and started relatively quickly on testosterone. Ultimately, treatment failed to resolve her dysphoria, and she found peace in herself only by worshipping God and by coming off testosterone. Here’s her written and spoken testimony. She tells us herself that at 16 she was absolutely convinced that she was male, and that she was suicidal, so there would obviously have been strong reasons to prescribe. But she also claims that doctors and psychiatrists encouraged her in this. While I wouldn’t agree that this demonstrates the need for a blanket ban, I’d like to think that there are doctors somewhere who’ve been looking at what lessons can be drawn from Zoe’s story, such as improved protocols for treating kids with a history of mental health disorders.
Risks, says Hinkle, “attend many kinds of medical treatment, perhaps most. Ordinarily it is
the patient, in consultation with the doctor, who weighs the risks and benefits and
chooses a course of treatment.” Why should this be any different ? And why should the state determine whether the plaintiffs, who all assert that their health and wellbeing is seriously threatened, deserve treatment ?
I’ll leave the final word on this to 12 year old Lola Smith, speaking to the Florida Senate: “If you pass this bill, many of us will die. We deserve to live as long as all of you. We are humans, too. Why are you so afraid of me, Mr. Yarborough?”
Bias in medical organisations
The defendants attacked WPATH (the World Professional Association for Transgender Health), the body which sets the internationally recognised standards of care, describing it as an “advocacy organisation”. They quoted Dr Levine calling it an echo chamber. They also referred to a court case, Kosilek v Spencer (2014), which allegedly found that WPATH Standards of Care reflect not consensus, but merely one side in a sharply contested medical debate. Out of interest, I looked up Kosilek v Spencer. The case involved a trans woman prisoner suing the prison authorities for the right to receive gender affirming surgery. From a very quick skim of the papers, two things jumped out at me. Firstly, the court accepted that in certain exceptional circumstances, prison authorities were under a duty to provide such treatment, which doesn’t sit very well with the Defendants case. Secondly, the only expert evidence that the court heard on the subject of WPATH Standards of Care came from (you guessed it) Dr Stephen Levine.
“If ever a pot called a kettle black,” wrote Judge Hinkle, “it is here.” The Standards of Care are grounded in decades of clinical experience, as well as the best available research. The health guidance issued by DeSantis’s medical appointees, on the other hand, is riddled with bad science: a result of bias against transgender people. As evidence of the amount of extreme prejudice that’s entered into the debate, Hinkle notes “a Florida legislator’s remarkable reference to transgender witnesses at a committee hearing as ‘mutants’ and ‘demons.'”
International views
In response to the state’s astonishing claim to be following international consensus, Hinkle had this to say –
“The defendants have asserted time and again that Florida now treats puberty blockers and cross-sex hormones the same as European countries. A heading in the
defendants’ response to the current motions is typical: ‘Florida Joins the
International Consensus.’ The assertion is false. And no matter how many times
the defendants say it, it will still be false. No country in Europe—or so far as
shown by this record, anywhere in the world—entirely bans these treatments.”
Malpractice
To be fair, I’m not sure that this was a key part of the defence, but in any case Hinkle provides clarity. If there is any evidence of dodgy clinics prescribing to children without carrying out proper evaluations then “the solution would be to appropriately regulate these
treatments, not to ban them.”
Continuation of treatment
A couple of defence experts argued that prescribing puberty blockers locks teenagers into a particular pathway, increasing the likelihood of permanent transition. It’s a theory that it’s almost impossible to test: if it’s true that there’s a a very high proportion of those who take puberty blockers who continue transitioning afterwards, then who’s to say that this shows anything other than that they were correctly diagnosed in the first place ? As Hinkle remarks, it’s certainly not a reason to ban the treatment.
One expert pushing this line was Michael Biggs, who’d recently written a paper in which this theory was discussed. In the paper he asks the question “What has happened to the majority of children with gender dysphoria who used to grow up into gay or lesbian adults?” So, yet another scientist who has difficulty in accepting the fact that gender is real.
By raising this argument, the Defendants shot themselves in the foot. A persistent gender critical myth, repeated by DeSantis and by the Florida Department of Health, is that 80% of teenagers seeking gender-affirming care will lose their desire to transition when they get older. Not only has the claim been debunked, but the decision by the Florida authorities to use Biggs as a witness suggests that they never really believed it anyway.
Off-label use of FDA-approved drugs
Critics of puberty blockers like to draw attention to the fact that they’re off-label, to help reinforce the portrayal of them as experimental drugs. Hinkle saw through this tactic: “Off-label use of drugs is commonplace and widely accepted across the medical profession. The defendants’ contrary implication is divorced from reality.”
In summary
For now, the Hinkle judgement remains one small ray of light in a desperate situation. It points the way though to what can be achieved. Overconfident and blinded by prejudice, the DeSantis administration has overreached. It’s like the Trump administration all over again. And we all know what happened to them.
Optimism of the Will 