Leor Sapir joins Brian C. Anderson to discuss the Biden administration’s policies on so-called gender-affirming care, the Department of Education’s redefining of Title IX to suggest that the law would ban discrimination based on gender identity, and other issues.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the Editor of City Journal. Joining me on today's show is Leor Sapir, he's been on the show before. He's a fellow at the Manhattan Institute where he researches pediatric gender medicine, education, cultural issues, and other concerns. He writes frequently for CJ, analyzing the institutional capture of American medical groups, and he's published for a number of other publications, Wall Street Journal, Tablet, The Hill. He's testified before legislative health committees in several states.
Today, we're going to be discussing the Biden Administration's gender medicine policies and how they square with scientific evidence. So Leor, really happy to have you on the show again and looking forward to our discussion.
Leor Sapir: Thanks for having me on, Brian.
Brian Anderson: So last month, the White House informed several media outlets that they opposed sex trait modification procedures, which as you've documented, include mastectomies, breast implantation, facial reconstruction, genital surgeries, and more, for children. The stance that the White House adopted seemed contrary to the Biden Administration's longstanding support of these kind of procedures, and it certainly sparked a reaction among those who support those procedures. One statement seemingly equated gender-affirming care with mental health care. This particularly incensed transgender activists and advocacy groups. And the White House then reworded it to indicate that pediatric gender medicine represents, in its term, a continuum of care.
Now, many people who don't follow these issues are wondering, what is going on here? What is all of this play with language? So, what is happening? What does the Biden Administration's mixed messaging reveal about its views on evidence-based medical policy in this area?
Leor Sapir: Yeah, so the short answer I think, is that the Biden Administration's support for pediatric sex trait modification procedures, known euphemistically as gender-affirming care, that support was never based on considerations of medical evidence, and that remains true today. But I think there's an important nuance here, Brian, and that's that there's been a shift in the rationale of the administration's support for so-called gender-affirming care. I think you could argue if you're going to be charitable, that support was initially rooted in a kind of misguided or misplaced trust in the medical establishment. Misguided but sincere belief that these interventions were safe and effective. And this is a problem that I and others have called the broken chain of trust, in medicine. So the Department of Health and Human Services in this case, trusted medical groups like the American Academy of Pediatrics and the Endocrine Society and the World Professional Association for Transgender Health, and these groups in turn trusted their own specialized subcommittees to review the evidence and issue recommendations.
Now over time, I think the Biden Administration's own rhetoric around gender-affirming care, that it's a matter of civil rights for "trans kids," caught up with the administration and created a new independent justification for its support for these procedures, such that by the time the evidence was known to be poor to non-existent, and by the time European countries started backing away from these procedures, the Biden Administration and maybe the Democratic Party more broadly, had already committed itself to the view that these procedures are medically necessary and lifesaving, and that their denial represents a kind of assault, as they like to call it, on a marginalized group of kids and a violation of their fundamental rights. So by the time the 19th News website reached out to the White House earlier this month for comment on its statement, in which the White House reneged on its support for gender surgeries, the Biden Administration and the Democratic Party had already painted themselves into a corner.
Now, I should point out, right now, voter support for these procedures is low, and opinion polls indicate that it continues to plummet. So it kind of depends on how you ask the question, Brian. I mean, you probably know that opinion polling is basically the art of getting whatever answers you want based on questions that you prefabricate. But when the question is asked in a way that's accurate and precise with no value judgments, meaning, “do you think that minors should be able to access puberty blocking drugs?” for example, instead of asking, “do you think that trans kids should be able to access trans medicine?” If you ask the question in a neutral way, a factual neutral way, you see that between two thirds and 80% of the American public believe that kids should not be offered these procedures. So there was a YouGov poll, for example, from earlier this year that found that even among democratic voters, there was an even split between those who support the procedures, those who oppose them, and those who have no opinion one way or the other. So, yeah.
Brian Anderson: So in other words, the more people know about this issue, the more they're indicating that they don't support what had been the Democratic Party's stance on it.
Leor Sapir: That's right. I mean, I'm not sure it was ever popular among Democratic voters. It could have enjoyed its day in the sun with a plurality or even a small majority of Democrats believing the establishment narrative about these procedures. But I think there's been enough information in the news media, including in places like the New York Times and The Atlantic, showing that in fact the evidence base is extremely weak, that European countries are quickly backing away from these procedures, to make most informed well-read voters, including within the Democratic Party, extremely skeptical of that establishment's position.
Now, I should mention one last thing here is that the Biden Administration's effort now to kind of bridge the gap between what the advocacy groups like the Human Rights Campaign demand that it say, and what both the politics and the evidence require the administration to say, the background to all this is these disclosures of WPATH documents. So the World Professional Association for Transgender Health. Its own internal communications were revealed in a lawsuit, an ongoing lawsuit in Alabama. These were private communications showing that WPATH intentionally suppressed evidence reviews when issuing its latest standards of care, because those reviews would have undermined its position that kids should be able to access these drugs and surgeries. And the documents also showed that Rachel Levine, the transgender Assistant Secretary for Health at the Department of Health and Human Services, pressured WPATH to eliminate age minimums for surgery. So these are very embarrassing revelations for the White House, and that's crucial background for understanding this latest messaging blunder, as I've called it.
Brian Anderson: Quite, quite striking. You've written a lot on Title IX so it's worth discussing that, I think for a bit. The Department of Education's Office for Civil Rights issued what's known as guidance, Title IX guidance earlier this summer, redefining the law to or suggesting that the law should be understood to ban discrimination based on gender identity in federally funded education programs. Now, since Title IX was enacted in 1972, it has protected against harassment and discrimination on the basis of sex. Now, the Office for Civil Rights claim that its rewording was a response to a 2020 Supreme Court decision involving employment discrimination. So this can get very complex, but do these new Title IX rules align, in your view, with the legal precedent, for starters?
Leor Sapir: So I guess I should start by just mentioning that 26 states have actually sued the Department of Education over its Title IX rules, arguing that the rules represent a wholesale rewriting of the 1972 statute. So, and those in 14 states, the new rules are now blocked from going into effect. So this is a matter of ongoing litigation, and I imagine it'll go up to the Supreme Court sooner or later.
But as to your question about whether the new rules comport with the Supreme Court's decision, so this would be the 2020 case, Bostock v. Clayton County. The simple answer is no, they do not comport, and in fact, this is a good illustration of a dynamic that my mentor at Boston College, Shep Melnick has called institutional leapfrogging, and that refers to a scenario in which a federal court will interpret a law in a certain way, the Department of Education will come out and extend that interpretation and say, we're just following the courts. And the courts will then come out and extend the interpretation even more in saying, we're just following the Department of Education and so on and so forth. And you get this huge expansion of federal policy with no institution ever taking responsibility for the expansion or explaining its legal basis, and that's really what's gone on here.
Now, the Bostock case involved allegations of discrimination in employment under Title VII of the Civil Rights Act of 1964, it was not a Title IX case. So first, the legal and regulatory context was different. I mean, employment concerns are about adults and their needs, whereas Title IX covers everything from mature adults in universities to first-graders, so it's a very different context.
But second and maybe more relevant here, is that the Supreme Court went out of its way to explain that its decision in Bostock did not hinge on the meaning of the word sex. And in fact, Justice Gorsuch, who wrote the majority opinion for the court, said that the court is going to assume the conventional, meaning the biological definition of the word sex. And so Justice Gorsuch said, our decision today does not reach these ongoing controversies over access to restrooms and sports teams, all the stuff that make for Title IX regulation. Problem, Brian, is that within two weeks of the Bostock ruling coming out, the Fourth Circuit, the Federal Court of Appeals for the Fourth Circuit cited Bostock in a ruling in favor of a transgender identified student who was suing her school for failing to treat her like a boy. In other words, the lower courts just completely ignored the Supreme Court's explicit direction not to interpret its ruling in this particular way. And the Biden Administration pretty much as soon as it came into office, did exactly the same thing, citing Bostock to support its proposed Title IX rules.
Brian Anderson: So let's just explain what would be entailed by those new rules going to effect. What would be their implications if gender identity is going to be considered out of this rubric?
Leor Sapir: Sure. So let's set aside the component dealing with sex-based harassment, which is its own category of Title IX regulation. There is an overlap to the gender identity and transgender accommodation issue, but let's set that aside because that gets us into something more complicated. But the bottom line here is that schools would be compelled on threat of losing federal funds or being subject to embarrassing OCR initiated investigations, or being subject to expensive and embarrassing lawsuits. Schools would be compelled to defer to students according to their preferred name, pronouns, desire to use certain bathrooms. And the rules make it pretty clear that schools are not to seek the consent or even notify parents of these social transition in schools, unless the students give their explicit consent for that. So the students can demand this and they get it in every case in which they demand it regardless of any circumstance or mental health background, family circumstance, age, maturity, none of that is relevant. Schools are to accommodate these demands as they arise and only to notify parents, if the students agree.
Brian Anderson: And how old are the students in question here? If a third-grader says this, would schools be obligated to respect that or is it just older students?
Leor Sapir: Yes, schools would. And I would also mention one additional thing that I've called attention to in some of my writings on Title IX. This whole area of regulation operates like a racket, and what I mean by that is, the Title IX rules are actually not as explicit and as detailed as many people think. They actually leave a few areas of regulation quite vague. And what this does is to put schools in a position of legal uncertainty where they don't know if and when they're going to be sued or dragged through the mud in an embarrassing OCR investigation.
And so if you are a school board attorney or any attorney advising school authorities on what to do when students make these kinds of requests, you're going to advise them to do the most legal risk averse thing possible, which is to defer to the same advocacy organizations like GLSEN or the ACLU, who make very excessive demands on schools, even in excess of what OCR demands, because these are the organizations that are going to file lawsuits against the school district. And so the vagueness of Title IX regulation creates this legal uncertainty, which in turn compels schools, incentivizes schools to defer to very radical and politically unaccountable special interest groups. And the result of all this is you get radical policies that are things that even the Biden Administration probably would not want to own and defend.
Brian Anderson: Now, to speak to the substance of the issue, these gender activists want to describe parents as abusers if they decline to recognize their children's so-called gender identity. And as you've noted, one area this is cropping up as an issue is in foster care regulations, where the Biden Administration has again moved to give legal force to this conception of family. And in this case, to try to establish protocol for placing gay and transgender identifying children in very specific kinds of foster homes. So foster parents must undergo specialized gender identity and sexual orientation training to be eligible to host these particular children and so on. I just wonder, how is that going to affect the foster care system? And to go back to that question, are they going to win the day with this argument that parents are abusers if they decline to go along with this conception of gender identity?
Leor Sapir: Sure.
Brian Anderson: Because as you were suggesting earlier, the evidence is mounting that this, including with the Cass review, which you've written about extensively, which is a very comprehensive British report on youth gender medicine, the evidence just does not support this in any scientific sense.
Leor Sapir: That's correct, that's correct. So the Cass review, alongside the Cass review, came seven new systematic evidence reviews and reviews of medical guideline quality. And one of these systematic reviews, systematic reviews are the highest level of evidence analysis in evidence-based medicine, and one of these systematic reviews dealt specifically with the question of social transition, meaning referring to children according to their preferred gender identity as opposed to their actual sex. This was the first systematic review of evidence on this question that has ever been done. And it found not surprisingly, that the evidence is just not there for either harms or benefits. We just don't know. So when activists say that gender affirmation is necessary for mental health and withholding affirmation is a kind of abuse, there's just no evidence to support that whatsoever.
But getting to the foster care rules, I think this is another example of gender activists doing what I've been calling the T piggybacking on the LGB. And what I mean by that is that activists are making arguments for transgender policies while citing evidence and rationales that pertain to homosexuality. And they're doing that while also insisting that transgender and gay are two completely separate things that are never to be conflated with each other. So the administration for children and families under HHS, is the agency, the sub-agency that issued these new foster care rules, and ACF cited a bunch of studies that to an unsuspected eye would seem to justify the new rules, but when you actually look at the studies that are cited, you see that they do no such thing. So most of this research has nothing to do with kids who reject their sex and identify as trans, it's research on kids who are gay or lesbian. And the obvious difference here is that being gay or lesbian does not require drugs and surgeries, nor does it entail denying the reality of one's physical sex or requiring that others deny it as well. Accepting a gay kid as gay means something very different from accepting a kid's transgender identity as real.
But here's another example, Brian, of how ACF mis-cites research. ACF relies on a survey by the Trevor Project, which is an advocacy organization, and ACF interprets the survey to mean that foster parents' refusal to accept a child's "gender identity" is what results in higher risk for suicidal behavior. Now, one problem with this argument is that the children entering the foster care system have high rates of what are known as ACEs or adverse childhood experiences, to begin with. Children who enter the foster care system are far more likely to have experienced physical abuse or neglect, parental mental health problems, parental drug addiction. All of these ACEs, all of these experiences are known drivers of suicidal behavior in youth. So it's possible and even likely, I would think, that ACF is confusing correlation and causation here. It's seeing foster care youth who reject their sex, who identify as trans and who feel suicidal, and it's concluding that their suicidality is because of their unaffirmed trans identity, rather than perhaps the other way around, meaning that their trans identity might be a maladaptive coping mechanism for these underlying stressors in their lives.
Look, this is a good example of mission creep, by which I mean the incremental expansion of policy in certain areas where policymakers claim that what they're doing is not really new, but just a tiny common sense extension of an already accepted policy. And I think this should be very concerning to Americans because today it's foster care parents who are being deemed abusive and ineligible to parent children if they're not gender-affirming. Tomorrow, it's every parent. If a behavior is deemed abusive in one parenting context, logic would seem to require that it be deemed abusive in every parenting context. And in fact, we're already seeing initiatives in the states to redefine abuse to mean withholding of gender affirmation, and we're seeing courts use gender affirmation as a litmus test in custody hearings. So this is starting in foster care, but this is not going to end in foster care.
Brian Anderson: Leor, last question for today. How much is this being driven from the state level and how much of it is a kind of top down federal imposition? In other words, in a presidential election year, would a change in the White House if the Republicans, if Donald Trump wins this election, would that make a significant difference in this developing universe of law and moral conflict?
Leor Sapir: That's a great question. It's coming from both, top-down and bottom-up. Certainly, the deep blue states, California, New York, Massachusetts are pioneering and leading the charge on some of these controversial policies like sanctuary states for hormones for kids who run away from red states. But even at the federal level, if you actually see what has been going on in the bureaucracy over the last 10 years, you'll find plenty of examples of, for example, NIH grants being issued to the tune of millions of dollars, to fund and promote gender medicine.
Brian Anderson: NIH, meaning the National Institute for Health?
Leor Sapir: National Institute for Health, yeah, and this was done during the Trump years. And so a lot of these initiatives are coming from deep within the federal bureaucracy in ways that the previous Trump Administration, I say previous as if he's already won, that the Trump Administration was probably not aware of or at least did not prioritize. So it's possible that this time around if Trump does end up winning the election, it's possible that more will be done to stop these harmful policies coming down, but that's anybody's guess.
Brian Anderson: Fascinating. Well, Leor, you've done the best reporting on this out there, so very much appreciate you coming on 10 Blocks today. Please check out Leor Sapir's work on the City Journal website. We've been discussing several of his recent pieces in our conversation, “The White House's Transgender Tangle,” “Casting Evidence Aside,” and “Foster Children, the New Pawn in the Gender Wars.” You can find those on his author page and we'll link to the author page in the description. You can find Leor on X, he's an excellent tweeter. It's @LeorSapir, and you can find City Journal on X as well, @CityJournal, and on Instagram @CityJournal_mi. If you like what you've heard on today's podcast, please give us a nice rating on iTunes. And Leor, great to talk with you as always.
Leor Sapir: Thanks so much for having me, Brian.
Photo: Malte Mueller / fStop via Getty Images