Transgender Individuals and the Law: Part II Introductory Essay

Part I of this two-part selection of articles on transgender individuals and the law collectively pertained to the nature of the transgender as well as intersexual conditions, evolving scientific understanding, psychosocial and medical methods of affirmation and treatment. It also focused on developing recognition of legal rights for trans, gender-diverse (GD), and intersexual individuals, including the transformational changes that have recently occurred in India. In this Part II special issue, articles give greater attention to the medical and surgical approaches to gender-affirming care (GAC) that have become practiced in recent decades. They also highlight legal recognition of transgender persons that has impacted employment practices, judicial processes, and penology as it pertains to trans criminal offenders, as well as public policy in general. Transgender individuals, collectively, are at higher risk for mental disorders and suicide than the general population. Autism, attention deficit hyperactivity disorder (ADHD) (Warrier et al. 2020), and diverse neuropsychiatric conditions (Karvonon et al. 2022) are overrepresented among transgender individuals. Subject matter experts are in general agreement that GAC and transitional measures when desired by the individual, ameliorate the risks of mental disturbance. Also of concern is the small minority of those who have transitioned, and then are unhappy with their having transitioned, and who then decide to detransition. Critics of transitional care draw attention to the few who eventually change their minds, whereas advocates claim such concerns are exaggerated. A Swedish study earlier this century raised concern that contrary to hopes and expectations, transgender sex reassignment with hormones and surgery could be associated with worse outcomes. With random, matched population controls, 324 sex-reassigned persons, including 191 trans-females and 133 trans-males, were studied. Sex-reassigned persons had a significantly higher mortality rate, especially from suicide, than their matched controls. They also had higher rates of suicide attempts and psychiatric hospitalizations. Criminal convictions were higher among male transgender persons (female-to-male), but not among female transgender persons. Dheijne and colleagues concluded that although sex reassignment may lessen gender dysphoria, this could be insufficient care for transgender persons who may require more psychiatric and somatic attention following sex reassignment (Dhejne et al. 2011). A study review of “all studies examining the effect of cross-sex hormonal treatment on mental health and well-being in gender dysphoria,” published in 2016, concluded that despite variation in study methodology and inconsistencies in results, hormone therapy for gender dysphoria reduces anxiety, dissociation, social distress, and improves the quality of life and self-esteem for both male and female transgender individuals (Costa and Colizzi 2016). Further caution seemed indicated after published corrections (Society for Evidence Based Gender Medicine 2020) of the study by Bränström and Pachankis (2020). The original study conducted by the Karolinska Institute in Sweden and Yale School of Public Health examined records of 2679 Swedish persons who had been diagnosed with gender dysphoria to determine whether improvement occurred with hormonal or surgical treatment over time. Based on the assumption that fewer mental health events reflected better mental health, their findings favored such sex-transitioning care. However, the published criticism of methodological flaw that followed, led the American Journal of Psychiatry, which published the study, to rectify that the initial conclusion “the longitudinal association between gender-affirming surgery and reduced likelihood of mental health treatment lends support to the decision to provide gender-affirming surgeries to transgender individuals who seek them” was “too strong” (Kalin 2020, 764). The first systematic review of hormone treatment of gender dysphoria in children was limited in conclusions due to multiple methodological weaknesses of the 24 studies examined (Ludvigsson et al. 2023). Limiting weaknesses included, among others, the lack of randomized controlled trials, insufficient duration of follow-up, small subject numbers, and high attrition rates. The delayed bone maturation and gain in mineral density following GnRHa (gonadotropin-releasing hormone analogs) was partially but not completely recovered during cross-sex hormone treatment (CSHT) by 22 years of age (Ludvigsson et al. 2023). Although long used to treat central precocious puberty (CPP) and generally considered safe and effective, puberty blockers, that is, gonadotropin-releasing hormone (GnRH) agonists and antagonists, have been overlooked by neuropsychologists as agents that might possibly alter neurocognitive as well as sexual development. Although the number of studies and subjects within these studies is small, a recent scoping review by Baxendale (2024) provides evidence that pubertal suppression may affect cognitive abilities and suppress the IQ of youths treated for CPP and gender dysphoria/incongruence. Moreover, evidence of whether such cognitive effects are fully reversible with GnRH discontinuance is lacking. Clearly, more and better research with follow-up at least until 25 years of age is urgently needed (Baxendale 2024). The Cass Review (Cass 2024b, Sections 14.27–14.32) found few outcome studies, reasons for concern over “treatment” (placebo) effect, and inconsistent findings. More recent outcome studies are added for consideration in this introductory essay. The Trans Youth Project recently published its longitudinal study of 317 initially transitioned youths (208 transgender girls and 109 transgender boys with a median start age of 8.1 years). Most (94%) continued to identify as binary transgender youths after the end of the study period of 5 years average. Of the 317, 7.3% transitioned at least once. Detransition was not invariably the end of gender changes. Among the 94.0% who retained their initial gender-transitioned change, 1.3% (n = 4) retransitioned twice back to nonbinary and then again to binary transgender. Of the youths living as nonbinary, one retransitioned to cisgender then to nonbinary. This study did not address the mental health needs of youths who de- or re-transition (Olson et al. 2022). Critical is the question of whether the elevated risk of suicide among transgender individuals changes because of transgender care. An Amsterdam cohort gender dysphoria study of 5107 transgender women followed over a median of 10 years and 3156 transgender men followed over a median of five years, identified 41 trans-women and eight trans-men who died by suicide. At every stage of treatment, their rate of suicide was higher than in the general population. However, there was no increase in the rate of suicide among transgender women; their rate of suicide deaths decreased over time. Thirty-five of these suicide victims were in treatment during the previous two years, whereas 14 were no longer in treatment (Wiepjes et al. 2020). Tordoff et al. (2022) followed 104 transgender and nonbinary (TNB) youths 13–20 years of age to determine mental health effects soon after initiation of transgender care, including puberty blockers (PBs) and gender-affirming hormones (GAHs). At baseline, 56.7% had moderate to severe depression, 50.0% had moderate to severe anxiety, and 43.3% reported thoughts of self-harm or suicide. Over the 12 months of follow-up, 66.3% received PBs, GAHs, or both, and 33.7% received neither of these interventions. Of the youths who received PBs or GAHs, 60% had lower odds of depression and 73% lower odds of suicidality compared with youths who received neither intervention. PBs and GAHs were not associated with changes in anxiety. Consistent with other studies, the authors concluded that gender-affirming care improves the mental health of TNB soon after these measures are initiated (Tordoff et al. 2022). In another recent study, Chen et al. (2023) conducted a 2-year prospective study in four sites in the United States on transgender and nonbinary youths who had undergone GAC. Of the 315 youths between 12 and 20 years of age, 190 (60.3%) were transmasculine. Results were predominantly favorable, as positive affect and life satisfaction improved, while depression and anxiety lessened pari passu with increased appearance congruence. Suicidal ideation was reported in 11 participants (3.5%) and two died from suicide (Chen et al. 2023). Clayton anticipated results of ongoing observational outcome studies not completed or published (Olson-Kennedy et al. 2019; Tollit et al. 2019) with her same skepticism as before (Clayton 2022), research bias and blurring of therapeutic and placebo effects (Clayton 2023). Although the Cass Review concluded that there is “not a reliable evidence base upon which to make clinical decisions” (Cass 2024a, 4/8), it also found that the strengths and weaknesses of the evidence are often overstated in both scientific and political discourse. Nonetheless, the report recommended greater comprehensive and individualized care for transgender youths, not a categorical ban on medical, surgical, or other approaches to GAC. In any case, transgender individuals, their parents or guardians, and treatment providers must make consequential decisions within the framework of public policy. Withholding approved treatments for specific conditions may be as consequential as the provision of such care. Ethics, whether professional, societal, or individual, require weighing risks and benefits, often with incomplete and imperfect evidence upon which to base treatment decisions regarding many conditions, not just gender dysphoria. In the case of gender identity and dysphoria, the calculus of public policy must be informed that all proposed medical and surgical interventions have long been accepted and used for other conditions. Of critical importance for procedures with potential desired benefits and unwanted side effects or complications is the process of informed consent. The transgender condition has become such a contentious, polarizing issue, yet one in which the entire population now seems to be engaged. The disparate, adversarial viewpoints seem to lack common ground, common goals, or any possibility of constructive discussion. The nature of the transgender condition, though not itself a mental disorder, can, especially with unaccommodating social milieus, result in conflict and distress. Such adverse developments to which the law responds sometimes call upon psychiatrists and psychologists, as well as other clinical and scientific disciplines, to provide their expertise in resolving legal conflicts and shaping rational and fair public policy. It would be hoped that science could at least provide a starting point in addressing the nature of the transgender identity. For such a white-hot, emotionally driven, and divisive issue, even the contributions of science are disputed. Although asserting that “basic biology refutes the entire ideology (of “transgender, non-binary, and gender non-conforming students”) outright, Thayer and Cagle (2023) wrote an opinion piece criticizing the U.S. federal administration's estimated $1.2 billion in research grants to study multiple aspects of transgender. The authors concluded that “science is not settled on transgenderism” (15), the research is aimed at “fix(ing) the problems that they helped cause” (16), and finally, “[t]here is simply no way to trust ‘the science’ or ‘the experts’ on this issue (of transgenderism)” (16). Christopher Rufo, a conservative author, goes so far as to compare the physicians who have artificially created transgenderism by including “mutilation of children” (Rufo 2023, 1), leading to “a lifetime of sorrows and medical necessities” (7) to Mary Shelley's fictitious Doctor Frankenstein (5). Strong language that adds to the stigma, and without explanation, insight, or reference to actual scientific research. Affirming the popular misconception that humans are of only two sexes, male and female, and no genders outside of this binary classification, in his just signed executive order banning the term “gender” from Federal policies and documents, President Trump declared: “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality” (Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, Executive Order 2025, M3(10)). Public policy debate rightfully requires attention to conflicting public interests. On February 13, 2025, the United States District Court for the District of Maryland issued an order restraining the implementation of this executive order (PFLAG et al. v. Donald J. Trump 2025), followed by a preliminary injunction which remains in place as of November 2025, barring the government from withdrawing federal funds based on the order while the case proceeds. It behooves public policymakers on trans issues, nonetheless, to first familiarize themselves with the topic and to gain an understanding of sex and gender as revealed through science, simple observation, and common sense. Today, European countries are frequently mentioned due to restricting trans health care for minors (Davis 2023), often in support of arguments to restrict PBs, hormonal, and surgical transitional treatments in the United States. Retrenchment in Sweden, based upon the SKDS (Swedish Gender Dysphoria Study) research, and in the UK, now with the apparent support of The Cass Review, was recently included in Tennessee's argument before the U.S. Supreme Court in support of that state's ban on such procedures for minors. However, none of these European countries have enacted such a sweeping ban as Tennessee. And while some countries exert more regulatory control over such procedures, they are not banned. Moreover, legal rights for transgender individuals are expanded in several European countries. [E]xcept in the face of a medically [ ] acknowledged, bona fida health risk, clearly and convincingly demonstrated, the legislature has no interest, much less a compelling one, to justify its interference with an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so. Further citing Armstrong, the Court added, “the medical community overwhelmingly agrees that the treatments proscribed by SB 99 are the accepted standard of care for treating gender dysphoria in minors.” Continuing, “Montana's constitutional right to privacy broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health partnership with a chosen health care provider free from government interference” (Planned the articles for this special issue were and before they were the Supreme Court issued its decision States v. The Supreme Court that gender-affirming medical and surgical treatments for transgender minors rational review and are not subject to Tennessee's ban on such treatments was not in of the of the U.S. have the to or to the of puberty hormonal treatment and surgery to support affirmation in transgender minors. Of the by the and the several minority only on the risk of suicide as an in the of such The the legislature as having found that puberty blockers and hormones used in this way to In his the Cass as having that did not support hormone treatment reduces the elevated risk of by among children from gender In to this in her the opinion of that “the of suicide attempts among transgender individuals may be as high as but without whether this is by medical treatment. of the other four minority mentioned suicide. several other in whether was and of medical care more than the risk of suicide. An debate regarding gender medical care is whether it reduces an elevated risk of suicide. a legislature were to ban therapy for treatment of disorder, which has an elevated rate of suicide, the question of the risk of suicide would attention banning for the treatment of disorder seems to be a that has been for minors in only depression, but in is associated with an elevated risk of including suicide, a increase over that of other et al. The a leading suicide for persons, recently published its of more than individuals, years in all and et al. Results indicated that suicide attempts by transgender and gender increased by as much as in the years following of in with such recently enacted 2024). the methodology did not that gender medical care from other affecting such individuals, no conclusion be the potential effect of such medical The increase in suicide attempts adds to the concern that policies that are of trans their mental health and quality of articles in this special issue and Part I address the rights of transgender criminal and not the study of gender-diverse within federal of 2022). This study identified 99 federal offenders, of were in the period from to 13, The were trans-women were and the individuals a small of the population Most of the had been of in of the study or sex were to the and had a of sex Most (94%) of the sex were when the individuals had been living as their had to or the of their over of were children or female of the study had a while in over had their during the study have concluded from this study that it has been a to have trans persons as from their to this policy and opinion to the are only a small of all diverse persons in the general population. A of including sexual and is generally common in who have sexual and persons often have a of having been and and to be for such in The in is to both from by others, at the same other who could be by those individuals who are at high risk for so. just for offenders, but for all in the is to treat each individual and with address their needs and for all through fair and as well as and Today, as this special issue goes to the United States government is that would medical gender care for transgender youths the was by the of and is now in the this is enacted by the and signed a who or attempts to or bodily on another who is a be not more than 10 years or is between and youths, is of a is and The critical between medical and surgical care that is is whether the is to change “the of individual to to a sex that from their this law would the United States as the and of all countries health care for transgender Moreover, as by President Executive the U.S. of Health and is regulatory to end procedures on children that to These procedures or surgical interventions of specific that to a appearance or with an identity from their These would from procedures on minors a condition of in and of health care in support of medically care for transgender youths, found such procedures not of health based upon an and who procedures on minors would be of with those debate on these is needed before this ban on medically care for transgender In this special issue, a even including an sex reassignment surgery to not a topic of a mental health is as those with the with transgender identity have a A but consequential effect of transgender could be a by in transgender persons were victims of sexual to issue for treatment in the legal is on whether transgender in employment are to to the of the rights of transgender persons through the law in their et al. in this issue to identify the care and needs of transgender persons in the United States. and colleagues to address sexual and health in not limited to categorical in and In conditions for transgender persons are as by to and the is in of more and than and to the provide a more upon which to base and public policy and public policy decisions are needed just as more research and greater understanding are the for With this framework as an to this special issue, the the and legal of transgender persons. that must be The with which were in Part to the transgender condition it with not desired by many in the trans has been considered as a gender to be in its yet to a of sometimes for the individual or even whether clinical or yet caution and in have their risks and that in this of the articles in this two-part special issue to a better understanding of transgender persons and their needs and and the of the between this minority and the of The that support the findings of this study are from the upon