Document Type
Article
Publication Title
Utah Law Review
Publication Date
2024
Volume
2024
First Page
763
Abstract
(Excerpt)
In the spring of 2023, the New York Times published a piece entitled “How a Few Stories of Regret Fuel the Push to Restrict Gender Transition Care.” It features Chloe Cole, who lived as a transgender boy for several years but now identifies as a cisgender woman. Cole has become a poster child for the idea that gender-affirming care (“GAC”) for minors may lead to later regret and should therefore be restricted by the state. Cole, who has been travelling the country as part of a conservative lawmaking effort to ban GAC, received a standing ovation after Florida Governor Ron DeSantis told her story in his State of the State address. Cole and a few others have been invited by conservative politicians and lawmakers in several states to testify about the perils of providing GAC to children and youth.
These politicians and lawmakers have generated a national moral panic about transgender children and youth that has resulted, as of early 2024, in restrictions or bans on GAC for minors in twenty-three states. Three core beliefs drive this moral panic. First, many children and youth who identify as transgender are only following a social-media amplified fad, a “social contagion.” Second, gender dysphoria is the result of childhood trauma and should therefore be treated via psychological therapy only. Third, cisgender children and adults are a preferable social outcome (over transgender children and adults). Based on these three convictions, gender-affirming care for minors is presented as harmful, ideological, unnecessary, and likely to lead to future regret. The Supreme Court recently granted an emergency stay of a Ninth Circuit preliminary injunction against Idaho’s GAC ban for minors. In his concurrence, Justice Gorsuch echoed these sentiments when he quoted extensively from Idaho’s application for stay, including language as to how the law seeks to block “surgeries that sterilize or mutilate a child’s genitals,” and protect children from “lasting harm and irreversible damage.”
The role of regret in the movement to ban GAC parallels the role of regret in the ongoing conservative campaign to ban abortion. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that pregnant people have no constitutional right to terminate an unwanted pregnancy. The decision overturned Roe v. Wade and Planned Parenthood v. Casey. In the years between Roe (1973) and Dobbs (2022), advocates, politicians, and lawmakers repeatedly promoted the idea that pregnant people may come to regret the decision to end a pregnancy, and that laws should protect them from that decision.
This Article analyzes the use of “regret” in the campaigns to ban GAC and abortion. It identifies two overlapping threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal rights and liabilities. The Article reveals a strategic conservative legal movement that has used “regret” as a disciplinary tool to promote “traditional family values,” especially those of natalism and “biological” sex difference.
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, Health Law and Policy Commons, Juvenile Law Commons, Law and Gender Commons
Comments
Available at: https://dc.law.utah.edu/ulr/vol2024/iss4/2/