Anti-trans docs weigh in on Supreme Court transgender case with pseudoscience

Paul R. McHugh, Paul Hruz and Lawrence S. Mayer (in order and as listed) have filed an amicus brief in Gloucester County School Board v. G.G.. They are represented by Gerard V. Bradley and Tory. H. Lewis. I will get to the players shortly.

The anti-transgender professionals are professional anti-transgender advocates. We in the gay community have not just an obligation to push back but we find opportunity in doing so. Anti-trans and anti-gay activism have much in common. Both are engendered by a desire to conform social and medical science to religious dogma in spite of the abject incompatibility of religion and science. When we do damage to anti-trans arguments we damage the system that endorses, sponsors, subsidizes and promotes anti-LGBT memes in spite of their logical incongruity and intellectual dishonesty.

The cast of characters:

This case is about transgender children. People with real expertise work with these kids every day. None of these folks do so or have done so. None of these folks have ever done independent research on transgender kids, let alone any that has been published to a scholarly peer-reviewed journal. Understanding the people involved may be more important than the arguments they make. While, to some extent, I have just defined my own argument ad hominem these folks have a history. What they bring to the table as biases and professional experience (or lack thereof) is crucial to understanding their arguments.

Dr. Paul R. McHugh is a retired psychiatrist, formerly part of the administration and faculty at John Hopkins University Medical Center. McHugh writes frequently about LGBT issues — none of it to peer-reviewed scholarly journals. A strict conservative Catholic, McHugh is a determined Defender of the Faith. Most of his articles appear at religious outlets. In 2016 McHugh authored a position paper on transgenderism for the American College of Pediatricians. Despite the high-sounding name, ACPeds is a tiny splinter organization that SPLC designates a hate group. The real peer organization is the American Academy of Pediatrics. McHugh has claimed that sexual orientation is chosen behavior. He also claims that gender dysphoria is a mental disorder. An argument he repeats in this brief.

Dr. Paul Hruz is a pediatric endocrinologists. Hruz is associated with Washington University School of Medicine in St. Louis where he is the Director, Division of Pediatric Endocrinology & Diabetes. Hruz is an accomplished and widely published investigator. However, none of his published research seems to have anything to do with transgender children. It simply is not his field of expertise. One of the more apparently dishonest passages in this filing is this:

Dr. Hruz is an active member of the Washington University Disorders of Sexual Development (“DSD”) Interdisciplinary Team. Over the past twenty years, Dr. Hruz has participated in the care of hundreds of children with DSDs.

That looks like an effort to suggest that Hruz is involved in the treatment of gender nonconforming children and that is not the case. DSDs are atypical genitalia; physical problems like undescended testes, the abnormal location of the urethra or an underdeveloped vagina. A list of conditions and tests is here.

Hruz was a state's witness in the North Carolina HB2 trial. Hruz testified to the adverse effects of transition through hormone therapy. In that regard he is an expert. However, he made no effort (nor should he have) to balance those undesired effects against the benefits of hormonal transition. Gender dysphoria causes people to experience extraordinary stress. It is a dangerous condition because of the potential for self-harm. Transition under proper clinical care drastically reduces that risk. Moreover, the American Academy of Pediatrics supports the therapy that Hruz is concerned about.

Dr. Lawrence S. Mayer is a professor of statistics and biostatistics at Arizona State University and a Scholar in Residence in the Department of Psychiatry at the Johns Hopkins University School of Medicine. Mayer was the co-author of a paper (a literature review) that was recently published to a conservative Christian outlet that does not subject articles to peer review. While the article was heavily promoted by the usual religious characters the professional community largely panned it as pseudoscience. It has been reported that Mayer was also a witness for the state in the HB2 trial in North Carolina.

Counsel:

Gerard V. Bradley, the attorney of record, is a professor of law at Notre Dame. He is also a senior fellow at the ultra-conservative-Catholic Witherspoon Institute which was co-founded by Robert George and is headed by an Opus Dei numerary. Bradley has tried to claim that refusing to serve a gay couple's wedding does not constitute anti-gay discrimination. He also had the temerity to assert, via Witherspoon's blog, that his religious nonsense was the scientific view on sexuality. I am not sure if that constitutes religious faith in science or the science of faith. Both are amusingly oxymoronic.

Assisting Bradley is Tory H. Lewis, a circa 2009 graduate of Vanderbilt Law (first in her class) and a litigation associate at a small Arkansas firm. In at least four of the six federal cases that Lewis has been involved with she represented an insurance carrier. Lewis once clerked for Lavenski R. Smith (8th Circuit Court of Appeals) who has the distinction of having been the executive director of the Rutherford Institute which has strong roots in anti-Semitism and neo-Confederate racism. She also clerked for US District Court Judge J. Leon Holmes, a conservative Catholic and, at one time, an anti-abortion zealot. That's not to suggest that Lewis is at all like the two judges she clerked for. Yet, I am wondering how she got involved in this enterprise.

The arguments:

Amici do not in this Brief address the considerable distress that some children (a little girl, say) are likely to experience if they are exposed in a bathroom, shower, or locker room to someone who identifies as being her sex (female), but who is, according to all or most appearances, a member of the opposite sex (male). Amici instead focus on the children these policies are intended to help – those (like Respondent) who are “transgendered” in that they have an insistent, persistent and consistent identification as the opposite sex.

I think that they just did address the supposed distress of a child exposed to a transgender child. It is a way of making an argument without having to support it in substance. It is the equivalent of spreading a rumor.

Amici nonetheless observe that the legal issues in this lawsuit center upon the meaning of the term sex in Title IX, added in 1972 to the federal Civil Rights Acts. Amici further observe that, for the duration of their long professional careers (McHugh graduated from Harvard Medical School in 1956, Hruz has treated sexual disorders in children for twenty years, and Mayer began working as a medical doctor in 1970), the term sex has almost invariably referred to one’s be- ing male or female in the objective, biological sense. Amici note too that the term gender came into use to indicate something quite different from sex – namely, a society’s expectations for how males and females should behave. Sex is innate, fixed, and binary; gender is a fluid cultural construct.

Now we know that the misleading statement regarding Hruz's experience is intentional. The sexual disorders in children that Hruz treats are things like microphallus. There is no indication whatsoever that he has treated gender dysphoric children. Indeed it would not appear that any of the three have done so. Furthermore, I would not confine gender to a cultural construct nor do I know if their use of the word “fluid” relates to gender or the supposed construct. Gender typically defines the state of being male or female (without intending to suggest that gender is not a continuum). I am sure that these three know that sex is not necessarily binary either.

Amici do not claim to know exactly how or why Respondent and the Fourth Circuit came to so thoroughly confuse sex and gender (or to transpose them, as if gender was innate and fixed at birth, while sex was malleable and the body configurable to one’s sense of gender identity). But this confusion is surely founded, at least in part, upon a host of mostly unsupported, and some glaringly mistaken, assertions regarding what the con- temporary scientific research has shown.

When it comes to confusion, these three are carriers. Thus far they do not cite any explicit confusion. Do people sometimes confuse sex and gender? Sure. Does it affect the argument? Not really. The brief, thus far, does not cite either contemporary research or mistakes derived therefrom.

Respondent maintains that, although in every biological and physiological way a girl, she is really a boy.2 But gender is culturally defined. Currently in the United States, it is defined as a persistent identification with a set of norms promoted by society as the behaviors, attitudes, and preferences associated with each sex. The definition is not biological. Choosing a gender – i.e., deciding to live as one sex or the other – neither is caused by nor causes any biological changes. There is no credible scientific literature that suggests that a person’s choice of gender affects their biology in any way. One’s sense of self and one’s desire to present to others as a member of the opposite sex have no bearing whatsoever upon the objective biological reality that one is male or female.

Let us keep this simple. We are all willing to concede that Gavin Grimm probably has female chromosomes. I take issue with the notion that anyone “chooses” their gender. There is some non-conclusive evidence of a biological correlate. It requires greater study by people who are agnostic with respect to the result. They are essentially describing gender dysphoria which is an inconsistency of sex and gender. It is relatively rare but it does exist.

No doubt many people, including some children, experience disquiet with their sex. They struggle with the project of identifying with their sex. Some feel a distressing and persisting incongruity between their sex and their sense of themselves as male or female.

But no matter how disturbing this condition of gender dysphoria may be, nothing about it affects the objective reality that those suffering from it remain the male or female persons that they were at conception, at birth, and thereafter – any more than an anorexic’s belief that she is overweight changes the fact that she is, in reality, slender.

Right. We get that. Gender dysphoria means that sex and gender are in discord. It is not in dispute.

… Amici focus instead on how to treat children and adolescents like G.G. who suffer from this psychological disorder. More exactly, amici critically evaluate the scientific bases, if any, for the gender-affirming policies the Fourth Circuit has required.

I wish that they would make up their minds. In the prior paragraph they refer to gender dysphoria as a condition. In the paragraph above they refer to a “psychological disorder.” Their peer organizations have settled on dysphoria. The discomfort associated with gender dysphoria can be quite remarkable but it is not a disorder.

According to the court below, school districts are required by law to treat students in accordance with their asserted gender identity instead of their biological sex. There is, however, no scientific evidence that such a gender-affirming mandate helps the children it aims to help.

The following is a statement from WPATH, the World Professional Association for Transgender Health:

The current Board of Directors of the WPATH herewith expresses its considered opinion based on clinical and peer reviewed evidence that gender affirming/confirming treatments and surgical procedures, properly indicated and performed as provided by the Standards of Care, have proven to be beneficial and effective in the treatment of individuals with transsexualism or gender dysphoria. Gender affirming/confirming surgery, also known as sex reassignment surgery, plays an undisputed role in contributing toward favorable outcomes.

That seems to cover both adults and adolescents. Research sources are cited. Indeed, there is a wealth of information concerning the treatment of transgender people on WPATH's website. If our three physicians haven't found scientific evidence for gender affirming treatment, they probably haven't looked very hard.

The American Psychological Association has published guidelines for transgender care. The document is thoroughly annotated and hyper-linked. The APA clearly advocates gender affirming treatments (making no distinction between adults and children). So much so that they ask those who are not trans-fluent to refer patients to therapists who are:

Psychologists may gain knowledge about the TGNC community and become more familiar with the complex social issues that affect the lives of TGNC people through first-hand experiences (e.g., attending community meetings and conferences, reading narratives written by TGNC people). If psychologists have not yet developed competence in working with TGNC people, it is recommended that they refer TGNC people to other psychologists or providers who are knowledgeable and able to provide trans-affirmative care.

Returning to the brief:

In fact, and to the contrary, there is abundant scientific evidence that (1) the Fourth Circuit’s mandated policy does none of the children it is meant to serve any real or lasting good; (2) it harms the vast majority of them; and (3) it leads to catastrophic outcomes for many such afflicted children.

“Abundant scientific evidence” seems to include the McHugh/Mayer article posted to a Christian blog and McHugh's position paper provided to the hate group, the American College of Pediatrics.

Amici conclude, based upon decades of academic study and clinical experience in the fields of psychiatry, psychology, and the biological bases of both of those fields, that the Fourth Circuit has mandated a scientifically unwarranted, dangerous experiment upon our nation’s children, with no apparent consideration at all of its far-reaching implications.

Those decades of study and experience do not seem to have produced any independent research on the treatment of gender dysphoria. It is my considered opinion that they are claiming erudition and expertise that they simply do not possess.  Whatever their motives, those do not include the bests interests of trans children.

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