Culture & the Family
Ban on youth sex-change surgeries survives court challenge
Ray Carter | October 6, 2023
An Oklahoma state law that makes it illegal to provide children with puberty blockers, cross-sex hormones or sex-change surgeries as a treatment for gender dysphoria has survived the first round of an ongoing court challenge.
U.S. District Judge John F. Heil, III, has denied plaintiffs’ motion for a preliminary injunction that would prevent enforcement of the law.
“Where, as here, there is robust scientific and political debate concerning a significant public-policy question, a court should be loath to step in to end the debate and thereby suggest it is all-knowing,” Heil wrote in his opinion and order. “The record in this case amply demonstrates that there is no consensus in the medical field about the extent of the risks or the benefits of the Treatment Protocols.”
Gov. Kevin Stitt welcomed the ruling.
“I am pleased with the court’s decision to uphold Oklahoma’s common-sense law protecting children from dangerous, permanent sex-change surgeries,” Stitt said. “Here in Oklahoma, we protect our kids. Plain and simple.”
The authors and some co-authors of Senate Bill 613, which put the prohibitions in place, also praised the ruling.
“The purpose of SB 613 is to protect children from making these life-changing, irreversible medical decisions until they reach some level of maturity,” said state Sen. Julie Daniels, a Bartlesville Republican who was principal Senate author of the bill. “The court recognized the state has an interest in protecting the physical and psychological well-being of minors from these protocols, which are not settled science. The mental health challenges of gender dysphoria are very real. These young people and their families deserve our support.”
She noted that the law allows for mental and behavioral health treatment for youth with gender dysphoria, and that the court decision aligns with similar rulings by federal courts in Tennessee and Alabama. The laws of those states have been upheld by the Sixth and Eleventh Circuit Courts of Appeal.
“I am gratified this court acknowledged the nationwide discussion and debate on these issues should be decided in state houses by elected legislatures and not by judges in a courtroom,” Daniels said. “I am hopeful that the Tenth Circuit will concur.”
State Rep. Toni Hasenbeck, an Elgin Republican who served as the House principal author of SB 613, also noted that the law is intended to protect youth.
“Senate Bill 613 was drafted, authored and passed with the sole intention of protecting Oklahoma's most vulnerable population: our children,” Hasenbeck said. “Young people may not fully grasp the significance of the choices they’re making at the time and may later face distress over the life-altering changes they underwent as a preteen or teenager. The Legislature must continue to help protect kids from rushing into serious decisions that should be made as an adult.”
State Sen. David Bullard, a Durant Republican who was an author of the legislation, also praised the court decision.
“I am pleased that the court sees the importance of protecting kids from the harms of genitalia mutilation and sterilization,” Bullard said. “It is important that we ensure protections for our kids against this dangerous ideology that seeks to convince them of a lie and then are willing to cause physical mutilation and harm while doing so. We will not turn a blind eye to this atrocity being fabricated on our kids. You cannot cure confusion with a knife but they sure can make a lot of money from it. When we get to the root of the problem, it is always about money and not about what is best for kids. Today, Oklahoma kids won.”
State Rep. Kevin West, a Moore Republican who was also a co-author of the law, said the ruling will protect children from making lifelong decisions in a rushed time frame.
“I’m glad the court ruled in favor of protecting our youth from the permanent harms that will be caused by these procedures,” West said. “Youth is a time of rapid change in bodies and hormone levels and brain development. Multiple scientific studies have failed to show a benefit from these procedures and in fact show potential for great and lasting harm. Perceptions formed at a young age can change drastically by adulthood. This law gives young people time to pause on taking an action that could lead to permanent mutilation of their bodies and sterilization as well as long-term adverse psychological consequences.”
The law defines “gender transition procedures” to include surgical procedures that alter or remove physical or anatomical characteristics or features that are typical for the individual’s biological sex, or the provision of puberty-blocking drugs and cross-sex hormones. The restrictions apply to patients younger than 18.
The American Civil Liberties Union and likeminded groups sued, seeking to have the law overturned, and plaintiffs asked for an injunction to prevent the law’s enforcement.
The plaintiffs in Peter Poe v. Gentner Drummond included five youth who claim to be transgender, their parents/guardians, and one doctor previously paid for efforts to try and make youth of one sex appear as members of the opposite sex.
Heil denied the plaintiffs’ request for a preliminary injunction that would keep the state law from being enforced, writing that the plaintiffs “have failed to show a likelihood of success on the merits of each of their constitutional claims.”
Among the arguments put forth by the plaintiffs was a claim that the law is based on illegal sex discrimination and gender stereotyping.
But Heil noted that “this is a case where the Oklahoma Legislature has prohibited all minors from using certain medical procedures to treat gender dysphoria.”
“The law does not further gender stereotypes by taking adverse actions against those who fail to conform to them; it simply requires that adolescents reach the age of majority before undergoing certain medical interventions to treat the psychological condition of gender dysphoria,” Heil wrote.
He also stated that the plaintiffs “have not demonstrated a fundamental right for parents to choose for their children to use puberty blockers, cross-sex hormones, and surgeries for the purpose of effectuating a gender transition.”
Heil’s opinion stated that it is “rational for the Oklahoma Legislature to regulate the Treatment Protocols for minors while the democratic process resolves ongoing questions of safety and efficacy.”
Although puberty blockers can still be used to treat other conditions, such as precocious puberty, Heil found it is rationale for lawmakers to ban such treatments for youth experiencing gender dysphoria, noting that it is “undisputed that gender transition procedures address a psychological diagnosis, rather than a physiological one.”
“The evidence demonstrates that a diagnosis of gender dysphoria is so tied to the patients’ subjective beliefs and psychological condition that it cannot be diagnosed over a patient’s objection,” Heil’s opinion stated. “This diagnosis is, therefore, readily distinguishable from the physiological conditions—including precocious puberty and disorders of sexual development—that are specifically exempted from the statutory definition of ‘gender transition procedures.’ It is entirely within the legislature’s purview to conclude that, while it may be appropriate for a minor to undergo hormone therapy and/or surgery to address a physiological condition, it is not appropriate for a minor to undergo such invasive procedures to treat a psychological one.”
The Oklahoma Council of Public Affairs (OCPA) joined with Do No Harm, a group of medical professionals, to defend SB 613 in an amici curiae brief filed in the case.
“No reliable scientific evidence justifies the use of puberty blockers, cross-sex hormones,and surgeries to treat gender dysphoria in minors. To the contrary, such treatments carry harmful lifelong consequences, including infertility, total loss of adult sexual function, and increased risk of several other serious medical conditions,” OCPA and Do No Harm’s brief stated
The American Civil Liberties Union, The ACLU of Oklahoma, Lambda Legal, and the law firm Jenner & Block LLP issued a joint statement decrying the ruling and vowing to appeal it.
“This is a devastating result for transgender youth and their families in Oklahoma and across the region. Denying transgender youth equality before the law and needlessly withholding the necessary medical care their families and their doctors know is right for them has caused and will continue to cause serious harm,” The ACLU statement declared. “But this is not the end. We are appealing this decision that is completely out of step with all other federal trial courts and that ignores the overwhelming evidence that gender-affirming medical care is safe and effective evidence-based care. We will continue our fight in defense of our clients and the constitutional rights of transgender people in Oklahoma and across the country.”
Heil’s opinion noted the significant debate and concerns that remain about the potential negative medical impact that puberty blockers, cross-sex hormones, and sex-change surgeries may have on youth who currently identify as transgender.
“It is certainly not the judiciary’s role to cut into that thoughtful debate and decree that one side has the right of it, and the Court declines Plaintiffs’ invitation to make such a decree,” Heil’s opinion stated. “As evidenced by the ongoing debate on this issue, Plaintiffs stand little chance of prevailing on their claim under the rational basis standard, and their motion for injunctive relief is therefore denied.”
NOTE: This article has been updated since initial publication to include comments from state Sen. Julie Daniels, state Rep. Toni Hasenbeck, state Sen. David Bullard, state Rep. Kevin West, and the American Civil Liberties Union.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.