Document Type
Article
Publication Date
2025
Publication
Yale Journal of Law and Feminism
Volume
36
Abbreviation
Yale J.L. & Feminism
First Page
1
Abstract
Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.
Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend that they alleviate stigma. Far too often, these procedures result in ongoing pain, loss of sexual sensation, psychological harm, physical scarring, or even sterilization. The irreversibility of these surgeries and the inability of infants to consent are abundantly clear, and research suggests widespread failures to obtain informed consent from parents.
At first blush, the intersex exception in transgender healthcare bans appears to create a stark inconsistency. The very concerns cited to justify the bans—medical harm, irreversibility, and lack of informed consent—are even more pronounced in the context of intersex surgeries. This inconsistency raises the question: Why do the very laws that purport to protect against these factors include exceptions for intersex surgeries?
This Article argues that the intersex exceptions are, in fact, consistent with sentiments behind bans on gender-affirming care: a deep-seated fear of and discomfort with children who do not conform to traditional sex stereotypes. By examining the intersex exceptions, the Article reveals that sex stereotypes, irrational fear, and disgust are foundational motivations underpinning the laws.
The Article further contends that these motivations call into question the bans’ constitutionality. As parents of transgender youth challenge these bans in court, with one case—United States v. Skrmetti—pending before the Supreme Court, this Article offers a crucial perspective for evaluating the forthcoming Supreme Court ruling and for analyzing subsequent legal developments surrounding gender-affirming care for minors.