Amicus Curiae Brief — United States, Petitioner v. Jonathan Skrmetti, Attorney General and Reporter for Tennessee, et al.

Supreme Court briefSep 3, 2024

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No. 23-477

IN THE

Supreme Court of the United States

————

UNITED STATES OF AMERICA,

Petitioner,

JONATHAN THOMAS SKRMETTI, ATTORNEY GENERAL

AND REPORTER FOR TENNESSEE, et al.,

Respondents,

and

L.W., BY AND THROUGH HER PARENTS AND

NEXT FRIENDS, SAMANTHA WILLIAMS AND

BRIAN WILLIAMS, et al.,

Respondents in Support of Petitioner.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

————

BRIEF OF AMICI CURIAE AMERICAN

HISTORICAL ASSOCIATION, ORGANIZATION

OF AMERICAN HISTORIANS, LGBTQ+

HISTORY ASSOCIATION, AND HISTORIAN

SCHOLARS IN SUPPORT OF

PETITIONER AND RESPONDENTS

IN SUPPORT OF PETITIONER

————

KARA N. INGELHART

Counsel of Record

NORTHWESTERN PRITZKER SCHOOL

OF LAW, BLUHM LEGAL CLINIC,

LGBTQI+ RIGHTS CLINIC

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-3770

kara.ingelhart@law.nortwestern.edu

Counsel for Amici Curiae

September 3, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICI CURIAE ........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

II.

THE DESIRE TO TRANSITION ONE’S

SEX AND THE PRACTICE OF SEX

TRANSITION

ARE

WELL-DOCUMENTED THROUGHOUT HISTORY ....

THE COLLECTION OF SYMPTOMS

TODAY USED TO DIAGNOSE GENDER

DYSHORIA HAS BEEN UNDERSTOOD

AS A DISTINCT EXPERIENCE BY

MAINSTREAM MEDICAL PROVIDERS

FOR OVER ONE HUNDRED YEARS.....

A. Sex-Transition-Related

Medicine

Benefitted From the Considerable

Medical

Advancements

the

Nineteenth and Early Twentieth

Centuries .............................................

B. Twentieth Century Medicine Refined

Diagnostic

Nomenclature

and

Included Pediatric Treatment for

Gender Dysphoria................................

(i)

TABLE OF CONTENTS—Continued

Page

III. SURGICAL INTERVENTION, CROSSSEX HORMONE THERAPY, AND

PUBERTY BLOCKERS ARE WELLESTABLISHED, MAINSTREAM FORMS

OF HEALTH CARE AND ARE THUS

NOT EXPERIMENTAL OR UNTESTED ...

A. Gender-Affirming Surgical Interventions Have Been Practiced for Centuries

and Modern Surgeons Established

the First Generation of the Current

Forms of Surgery Specifically to

Alleviate Symptoms of Gender

Dysphoria Beginning Around 1900 ....

B. Hormone

Therapy

Has

Been

Prescribed Since the 1930s .................

C. Puberty Blockers Were Developed in

the 1980s ..............................................

D. The Historical Record Offers Additional

Testimony Through Lives of Transgender Adolescents Thriving After

Receiving Gender-affirming Health

Care ......................................................

CONCLUSION ....................................................

APPENDIX

iii

TABLE OF AUTHORITIES

CASES

Page(s)

City of Chicago v. Wilson,

75 Ill. 2d 525, 533-34 (Ill. 1978) .............. 10-11

City of Columbus v. Zanders,

25 Ohio Misc. 144 (Mun. 1970).................

Doe v. McConn,

489 F. Supp. 76 (S.D. Tex. 1980) ..............

Eknes-Tucker v. Governor of Alabama,

80 F.4th 1205 (11th Cir. 2023) .................

L.W. v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) .....................

Poe v. Drummond,

697 F. Supp. 3d 1238 (N.D. Okla. 2023) ..

State v. Loe,

629 S.W.3d 215 (Tex. 2024) ......................

OTHER AUTHORITIES

Alan D. Rogol et al., Celebration of a

century of insulin therapy in children

with type 1 diabetes, 108 ARCH. DISEASE

CHILD. 3 (2022)......................................... 8-9, 12

Alicia Bazzano et al., Off-Label Prescribing

to Children in the United States

Outpatient Setting, 9 ACAD. PEDIATRICS

81 (2009) ....................................................

ALISON LI, WONDROUS TRANSFORMATIONS: A

MAVERICK PHYSICIAN, THE SCIENCE OF

HORMONES, AND THE BIRTH OF THE

TRANSGENDER REVOLUTION (2023) ...........

TABLE OF AUTHORITIES—Continued

Page(s)

Alvaro Morales, The Long and Tortuous

History of the Discovery of Testosterone,

10 J. SEXUAL MED. 1178 (2013) ................

Andrew Schally, Aspects of Hypothalamic

Regulation of the Pituitary Gland: Its

implications for the control of reproductive processes, 202 SCIENCE 18 (1978) ......

ANNA KŁOSOWSKA, Wojciech of Poznań and

the Trans Archive, Poland, 1550-1561, in

TRANS HISTORICAL (Greta LaFleur et al.

eds., 2021) .................................................

Annelou de Vries et al., Young Adult

Psychosocial Outcome After Puberty

Suppression and Gender Reassignment,

134 PEDIATRICS 696 (2014) .......................

Ashley Austin et al., Suicidality Among

Transgender Youth: Elucidating the Role

of Interpersonal Risk Factors, 37 J.

INTERPERS. VIOLENCE, 1 (2020) ................

Atta Ullah et al., Revolutionizing Cardiac

Care: A Comprehensive Narrative Review

of Cardiac Rehabilitation and the

Evolution of Cardiovascular Medicine, 15

CUREUS 1 (2023) ........................................

Carl Westphal, Contrary Sexual Feeling:

Symptom of a Neuropathic (Psychopathic)

Condition, in SODOMITES AND URNINGS

(Michael Lombardi-Nash ed. and trans.,

2006) ..........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

CELIA ROBERTS, MESSENGERS OF SEX:

HORMONES, BIOMEDICINE AND FEMINISM

(2007) .........................................................

Chris Mowat, Don’t be a Drag, Just be a

Priest: The Clothing and Identity of the

Galli of Cybele in the Roman Republic

and Empire, 33 GENDER AND HIST. 296

(2021) .........................................................

Cole Roblee et al., A History of GenderAffirming Surgery at the University of

Michigan: Lessons for Today, SEMINARS

IN PLASTIC SURGERY (2024) .......................

Dannie Dai et al., Prevalence of Gender

Affirming Surgical Procedures Among

Minors and Adults in the US, 7 JAMA

NETWORK 1 (2024) .....................................

Donald Laub & Norman Fisk, A

Rehabilitation Program for Gender

Dysphoria Syndrome by Surgical Sex

Change, 53 PLASTIC & RECONSTRUCTIVE

SURGERY 388 (1974) ..................................

EMILY SKIDMORE, TRUE SEX (2017) ..............

EUNUCHS IN ANTIQUITY AND BEYOND

(Shaun Tougher ed., 2002) .......................

TABLE OF AUTHORITIES—Continued

Page(s)

Gender incongruence and transgender

health in the ICD, WORLD HEALTH

ORGANIZATION, https://www.who.int/stan

dards/classifications/frequently-asked-qu

estions/gender-incongruence-and-transge

nder-health-in-the-icd [https://perma.cc/G7

HA-VPPE] ........................................................

Genny Beemyn, Transgender History in the

United States, in TRANS BODIES, TRANS

SELVES (Laura Erickson-Schroth ed.,

2014) .......................................................... 5, 20

Harry Benjamin, Transsexualism and

Transvestism as Psychosomatic and

Somato-Psychic Syndromes, 8 AM. J.

PSYCHOTHERAPY 219 (1954) .........................

HBIGDA Board Meeting, Minutes from

August 1999 (on file with the Kinsey

Institute, Indiana University) ..................

HBIGDA Symposium Program, Tenth Int’l

Symposium on Diagnosis and treatment

of transsexualism (June 9-12, 1987)

(on file with The ArQuives, Toronto,

Canada) .....................................................

HBIGDA Symposium Program, Eleventh

Int’l Symposium on Gender Dysphoria

(Sept. 20-23, 1989) (on file with The

ArQuives, Toronto, Canada).....................

IFI AMADIUME, MALE DAUGHTERS, FEMALE

HUSBANDS: GENDER AND SEX IN AN

AFRICAN (1987) ..........................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

J. Wesley Alexander, The Contributions of

Infection Control to a Century of Surgical

Progress, 201 ANNALS SURGERY 423

(1985) .........................................................

JEN MANION, FEMALE HUSBANDS: A TRANS

HISTORY (2020) .......................................... 5, 17

JOANNE MEYEROWITZ, HOW SEX CHANGED:

A HISTORY OF TRANSSEXUALITY IN THE

UNITED STATES (2004)...............................

13, 17, 18

Johanna Olson-Kennedy et al., Impact of

Early Medical Treatment for Transgender

Youth: Protocol for the Longitudinal,

Observational Trans Youth Care Study, 8

JMIR RSCH. PROTOCOLS 1 (2019) .............

12,

JULES GILL-PETERSON, HISTORIES OF THE

TRANSGENDER CHILD

(2017) ............................ 10, 11, 18, 20, 21, 23, 26, 27

Kadin Henningsen, Calling [herself]

Eleanor: Gender Labor and Becoming a

Woman in the Rykener Case, 55

MEDIEVAL FEMINIST FORUM 249 (2019)....

Kathleen Neville et al., Policy Statement:

Off-Label Use of Drugs in Children, 133

PEDIATRICS 563 (2014) ..............................

KATIE SUTTON, SEX BETWEEN BODY AND

MIND: PSYCHOANALYSIS AND SEXOLOGY IN

THE GERMAN-SPEAKING WORLD, 1890s1930s (2019) ..............................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Kristof Chwalisz, Clinical development of

the GnRH agonist leuprolide acetate

depot, 4 FERTILITY STERILITY REP. 33

(2023) ......................................................... 23, 24

LAURIE MARHOEFER, SEX AND THE WEIMAR

REPUBLIC: GERMAN HOMOSEXUAL EMANCIPATION AND THE RISE OF THE NAZIS

(2015) .........................................................

Lawrence J. Bliquez, Surgical Treatment of

the Breast from the Hippocratics to the

Renaissance, 32 MEDICINA NEI SECOLI: J.

HIST. MED. MED. HUMAN. 833 (2020) .......

6, 7

Lawrence Newman, Transsexualism in

Adolescence: Problems in Evaluation and

Treatment, 23 ARCHIVES GEN. PSYCHIATRY 112 (1970) ...........................................

LEAH DEVUN, THE SHAPE OF SEX:

NONBINARY GENDER FROM GENESIS TO

THE RENAISSANCE (2021) ..........................

Leah Schaeffer & Conie Christine Wheeler,

Harry Benjamin’s First Ten Cases (19381953): A Clinical Historical Note, 24

ARCHIVES SEXUAL BEHAV. 73 (1995).........

Letter from Elmer Belt to Harry Benjamin

(1958) (on file with the Kinsey Institute,

Indiana University) ..................................

Letter from Leona M. Bayer to Alfred

Kinsey (Apr. 8, 1954) (on file with the

Kinsey Institute, Indiana University) .....

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from Louise Lawrence to Leona M.

Bayer (Feb. 18, 1956) (on file with the

Kinsey Institute, Indiana University) .....

LUDWIG LEVY-LENZ, THE MEMOIRS OF A

SEXOLOGIST (1954) .................................... 17, 18

MAGNUS HIRSCHFELD, TRANSVESTITES

(Michael Lombardi-Nash trans., 1991) ....

Medical Association Statements in Support

of Health Care for Transgender People

and Youth, GLAAD (June 21, 2023),

https://glaad.org/medical-association-sta

tements-supporting-trans-youth-healthc

are-and-against-discriminatory/ .............. 19, 25

Memorandum from Alice Webb to HBIGDA

Prospective Members (1977) (on file with

the Kinsey Institute, Indiana University)....

Nishant Patel et al., The History of Heart

Surgery at the Johns Hopkins Hospital,

27 SEMINARS IN THORACIC CARDIOVASCULAR SURG. 341 (2015) ................................

Norman Spack et al., Children and

Adolescents With Gender Identity

Disorder Referred to a Pediatric Medical

Center, 129 PEDIATRICS 418 (2012) .......... 22-24

PEGGY COHEN-KETTENIS & FRIEDEMANN

PFAFFLIN, TRANSGENDERISM AND INTERSEXUALITY

CHILDHOOD

AND

ADOLESCENCE (2003).................................

TABLE OF AUTHORITIES—Continued

Page(s)

RAIMUND WOLFERT, CHARLOTTE CHARLAQUE:

TRANSFRAU,

LAIENSCHAUSPIELERIN,

“KÖNIGIN DER BROOKLYN HEIGHTS

PROMENADE” (2021) ..................................

Report from Wendy Kohler, Rep. of Selected

Panels and Papers of the 123rd Ann.

Meeting of the Am. Psychiatric Ass’n

(1970) (on file with the Kinsey Institute,

Indiana University) .................................. 14-15

Richard Mühsam, Chirurgische Eingriffe

bei Anomalien des Sexuallebens, DIE

THERAPIE DER GEGENWART (Oct. 1926) ....

Richard Paulson & Keith Gordon,

Gonadotropin-releasing hormone: incredible 50 years, 4 FERTILITY STERILITY REP.

1 (2023) ......................................................

Richard Santen & Evan Simpson, History of

Estrogen: Its Purification, Structure,

Synthesis, Biologic Actions, and Clinical

Implications, 160 ENDOCRINOLOGY 605

(2019) .........................................................

Riittakerttu Kaltiala-Heino et al., Gender

dysphoria in adolescence: current

perspectives, 9 ADOLESCENT HEALTH,

MED. AND THERAPEUTICS 31 (2018) ..........

Robert M. Goldwyn, History of Attempts to

Form a Vagina, 59 PLASTIC &

RECONSTRUCTIVE SURGERY 319 (1977) ......

TABLE OF AUTHORITIES—Continued

Page(s)

Sahar Sadjadi, The Vulnerable Child

Protection

Act

and

Transgender

Children’s Health, 7 TRANSGENDER

STUDIES QUARTERLY 510 (2020) ...............

Saul Harrison & Albert Cain, The

Childhood of a Transsexual, 19 ARCHIVES

GEN. PSYCHIATRY 28 (1968) ......................

Seamus McAleer, A history of cancer and its

treatment, 91 ULSTER MED. J. 124 (2022)

Stephen B. Levine et al., 1998 Harry

Benjamin Standards of Care, available at

https://perma.cc/B85M-GEQS ....................

SUSAN STRYKER, TRANSGENDER HISTORY

(2008) ........................................................... 14, 18, 22

Suyin Haynes, The World Health

Organization Will Stop Classifying

Transgender People as Having a ‘Mental

Disorder’, TIME, (May 28, 2019, 12:25 PM),

https://time.com/5596845/world-healthorganization-transgender-identity/ ..........

TOM BOELLSTORFF, THE GAY ARCHIPELAGO:

SEXUALITY AND NATION IN INDONESIA

(2005) .........................................................

Tony Peregrin, Children are at the Heart of

New Surgical Practice Recommendations, 109 AM. COLL. SURGEONS (2024) .... 11-12

Valencia Higuera, Diabetes: Past treatments,

new discoveries, MEDICALNEWSTODAY

(May 4, 2023), https://www.medicalnews

today.com /articles/317484#early-science ..

xii

TABLE OF AUTHORITIES—Continued

Page(s)

W.O. Thompson, Uses and Abuses of the

Male Sex Hormone, 132 J. AM. MED.

ASS’N 185 (1946)........................................

Wylie Hembree et al., Endocrine Treatment

of Transsexual Persons: An Endocrine

Society Clinical Practice Guideline, 94 J.

CLINICAL ENDOCRINAL & METABOLISM

3132 (2009) ................................................

INTEREST OF AMICI CURIAE

Amici are well-recognized scholarly historical

organizations and academic scholars and historians

whose many decades of study and research focus on

the history of gender, sexuality, and medicine. 1 A

summary of the qualifications and affiliations of the

amici is provided in the appendix to this brief. The

individual amici who hold academic appointments file

this brief solely as individuals; their university

institutional affiliations are given for identification

purposes only.

Amici aim to provide the Court with accurate

historical perspective as it considers the question of

whether Tennessee Senate Bill 1, prohibiting all

medical treatments intended to allow “a minor to

identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported

discomfort or distress from a discordance between the

minor’s sex and asserted identity,” violates the equal

protection clause of the 14th Amendment. Amici have

examined the opinion of the Sixth Circuit Court of

Appeals in this case as well as the opinions of other

courts in related cases, in which several jurists

contend that gender dysphoria and the primary

medical interventions to treat its symptoms are both

“novel” and “experimental.” Based on their expertise

and research, amici find this assertion to be unsupported by the historical evidence.

Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part, and that no person

other than amici, their members, or their counsel made a

monetary contribution to fund its preparation or submission.

This brief does not purport to convey the position of Northwestern

University Pritzker School of Law.

SUMMARY OF ARGUMENT

This brief uses historical evidence from ancient

history through the twenty-first century to show that

the medical diagnosis—gender dysphoria—and primary

medical interventions to treat it have been inappropriately characterized as novel or experimental. Gender

dysphoria and these treatments have deep roots in the

historic record.

I. The historical record shows that the fact of people

transitioning their sex identity (sometimes referred to

as gender identity) from the one they were designated

at birth is not a spontaneous phenomenon of the

twentieth or twenty-first century. Despite stigma and

discrimination throughout the past towards people

who defied such social norms, many texts document

desire to transition sex identity to publicly live in

accordance with a sex identity different from that

designated at birth. And the historical record shows

that precursor medical interventions to the refined

gender-affirming procedures of today predate the

twentieth century.

II. Then, during the explosion of modern medicine

in the mid-nineteenth century, including the advent

of psychiatry as a specialty, mainstream practice

recognized the shared psychophysiological experience

underlying sex identity transition as involving what is

today termed gender dysphoria. The history of

transition and medical interventions prior to this

period laid the foundation for further development of

medical interventions to alleviate distress from gender

dysphoria. Diagnostic criteria and the medical interventions for gender dysphoria developed on a similar

timeline to that of other diagnoses and fields of

specialty, through applied medicine with adult and

minor patients in the twentieth century.

III. Improvements in gender-affirming medical

interventions were made throughout the twentieth

century. With most primary forms of surgical care

today having been in practice for over a century, crosssex hormone therapy having been prescribed for

nearly a century, and puberty blockers having been

prescribed for more than four decades, by medical

history standards, these gender-affirming medical

interventions are well-established, mainstream forms

of health care. And with gender clinics treating

adolescent patients since the 1960s, the historical

record shows transgender adolescents who thrived

after receiving the primary interventions for their age

group—puberty blockers and later cross-sex hormones

(the treatments at issue in this case).

The historical evidence thus demonstrates that the

well-established diagnosis of gender dysphoria and

evidence-based health care interventions to alleviate

it developed consistently with the rest of modern

medicine. Removing legal barriers to these mainstream

forms of health care will enable Americans to receive

the best practice care as advised by their providers and

to thrive with the benefit of a century of expertise.

ARGUMENT

Courts considering the lives and well-being of

transgender adolescents diagnosed with gender

dysphoria have reasoned that the diagnosis and

gender-affirming health care interventions are “novel”

or “experimental,” especially with regard to adolescent

patients. See, e.g., L.W. v. Skrmetti, 83 F.4th 460, 47172, 477 (6th Cir. 2023); see also Eknes-Tucker v.

Governor of Alabama, 80 F.4th 1205, 1220-21

(11th Cir. 2023); Poe v. Drummond, 697 F. Supp. 3d

1238, 1259-60 (N.D. Okla. 2023); State v. Loe, 629

S.W.3d 215, 223, 231-33 (Tex. 2024). Both premises are

contradicted by the historical record. The record of

human history demonstrates that sex identity

transition 2 dates back centuries, with modern medical

science, as it developed in the nineteenth century, coming

to recognize the experience as concerning a set of

symptoms of clinically significant distress. For decades

since, Americans experiencing clinically significant

distress associated with the desire to live as and

transition to a sex different from that which was

designated at birth—i.e., gender dysphoria 3—and

This brief employs the terminology of “sex transition,”

“transitioning sex identity,” and other iterations of the same to

refer to practices and experiences of people and groups—in the

historic record predating the advent of modern medicine in the

mid-nineteenth century—who were known to alter their lives

and/or bodies to live in accordance with a sex or gender identity

distinct from the one designated at birth. Amici use this term

because it applies to records discussing the fact or facts of a

transition process from a time period predating the modern

medical conception of aggregated symptoms and diagnostic

practices revolving around the clinically significant distress

associated with gender dysphoria.

This brief employs the term “gender dysphoria” in discussion

of the historical record from the mid-nineteenth century to the

present when referring to clinically significant distress

associated with the desire to live as and transition to a sex

different from that which was designated at birth, rather than

alternating between the successive diagnostic nomenclature in

the field that pathologize gender identity—e.g., “transvestite,”

“transsexual,” or “gender identity disorder.” Amici use “gender

dysphoria” because—regardless of the term in use throughout

the course of medical history discussed herein—as individuals

reported seeking relief of distress, and, increasingly as treatment

improved, the field developed a core emphasis on the felt distress

of the individual who seeks medical interventions for its

alleviation, which is the primary element of a “gender dysphoria”

diagnosis. See infra at 9-10, 12-15. Adolescents with gender dysphoria

have been treated under all the diagnostic rubrics the field has

employed over time.

their health care providers have understood the

pattern of symptoms that are best treated and relieved

through courses of gender-affirming medical

interventions.

I. THE DESIRE TO TRANSITION ONE’S SEX

AND THE PRACTICE OF SEX TRANSITION

ARE WELL-DOCUMENTED THROUGHOUT HISTORY.

Sex transition is not a creation of modern science.

Throughout recorded human history, people have

transitioned to a different sex than that which was

recognized at birth. This has been documented in the

U.S. and elsewhere, including for hundreds of years

prior to the rise of modern medicine (i.e., modern

hormone and surgical science), despite the record

being limited due to a person’s survival often

depending on the concealment of one’s transition. See,

e.g., Kadin Henningsen, Calling [herself] Eleanor:

Gender Labor and Becoming a Woman in the Rykener

Case, 55 MEDIEVAL FEMINIST FORUM 249, 250 (2019)

(examining a case of sex transition in 1394 London);

ANNA KŁOSOWSKA, Wojciech of Poznań and the Trans

Archive, Poland, 1550-1561, in TRANS HISTORICAL 114,

114-24 (Greta LaFleur et al. eds., 2021) (same in 1550s

Poland); JEN MANION, FEMALE HUSBANDS: A TRANS

HISTORY 29-32, 166-71 (2020) (same in 1700s England

and 1840s U.S.); Genny Beemyn, Transgender History

in the United States, in TRANS BODIES, TRANS SELVES

1, 7-9 (Laura Erickson-Schroth ed., 2014) (same in late

1800s U.S.); EMILY SKIDMORE, TRUE SEX 2 (2017)

(describing American newspapers reporting at least

sixty-five cases of transgender men living as men

between the 1870s-1930s).

Some societies developed public, official social roles

in which people were permitted to move away from

birth-designated sex, either to the other category in a

two-sex system or into a third category, limited to

neither a male nor female identity. See, e.g., IFI AMADIUME,

MALE DAUGHTERS, FEMALE HUSBANDS: GENDER AND

SEX IN AN AFRICAN SOCIETY 15-17, 31-33 (1987)

(describing select women who took on male identity roles

in eastern Nigeria in the nineteenth century); TOM

BOELLSTORFF, THE GAY ARCHIPELAGO: SEXUALITY AND

NATION IN INDONESIA 38 (2005) (describing the bissu of

the Bugis people of Sulawesi, Indonesia—who

designated male at birth, take on an androgenous role

with ritual power—about whom Westerns have been

writing since 1545 and who are still active today);

Chris Mowat, Don’t be a Drag, Just be a Priest: The

Clothing and Identity of the Galli of Cybele in the

Roman Republic and Empire, 33 GENDER & HIST. 296

(2021) (describing religious functionaries in the late

Republican and early Imperial Rome period who

were designated male at birth, practiced surgical

testicular removal, and wore women’s clothing and

makeup).

And medical interventions shaping the body to impact

expression of a person’s sex, including early versions

of some procedures in use today, find their origins not

in the twentieth century, but in the ancient world. 4

See, e.g., EUNUCHS IN ANTIQUITY AND BEYOND (Shaun

Tougher ed., 2002) (discussing throughout orchiectomy and

penectomy practices even predating the birth of Christ); see also

Lawrence J. Bliquez, Surgical Treatment of the Breast from the

Hippocratics to the Renaissance, 32 MEDICINA NEI SECOLI: J.

HIST. MED. MED. HUMAN. 833, 840-41 (2020) (documenting

ancient practices of breast tissue alteration or removal (mastectomy)).

Such practices continued to refine throughout the

Middle Ages through the close of the nineteenth

century. 5

Thus, the historic record shows the desire to

transition from one sex to another is part of the human

condition with ancient interventions developing over

centuries toward the acceleration of gender-affirming

medicine interventions at the close of the nineteenth

century (with surgeries) which grew in the early

twentieth century as sex hormones were discovered.

See LEAH DEVUN, THE SHAPE OF SEX: NONBINARY GENDER

FROM GENESIS TO THE RENAISSANCE 134-62 (2021) (discussing

examples of procedures altering intersex people’s bodies (people

with variations in reproductive or sex anatomy) in thirteenth and

fourteenth century surgical manuals); see also Bliquez, supra

note 4, at 846 (documenting a seventh-century procedure reducing

benign fatty breast development in a patient designated male at

birth (known today as gynecomastia) to bring the patient’s body

more into accord with his sex); Robert M. Goldwyn, History of

Attempts to Form a Vagina, 59 PLASTIC & RECONSTRUCTIVE

SURGERY 319, 326-27 (1977) (documenting a successful vaginoplasty

with skin grafting in 1898 America on an intersex patient).

II. THE COLLECTION OF SYMPTOMS TODAY

USED TO DIAGNOSE GENDER DYSHORIA

HAS BEEN UNDERSTOOD AS A DISTINCT

EXPERIENCE BY MAINSTREAM MEDICAL

PROVIDERS FOR OVER ONE HUNDRED

YEARS.

A. Sex-Transition-Related Medicine Benefitted From the Considerable Medical

Advancements of the Nineteenth and

Early Twentieth Centuries.

Medicine benefited tremendously from the scientific

developments accompanying the second industrial

revolution of the nineteenth century, with advancements spanning the breadth of known medical

specialties like surgery, 6 cardiology, 7 nephrology, 8 and

Prior to 1867, and the incorporation of antiseptic use, the

mortality rate from post-operative infection alone was 50%. J.

Wesley Alexander, The Contributions of Infection Control to a

Century of Surgical Progress, 201 ANNALS SURGERY 423, 423 (1985).

“Before the 20th century, therapeutic interventions for heart

disease were limited and often ineffective” with “[t]he first

successful cardiac surgery . . . performed . . . in 1896,” and surgery

“remained experimental and high-risk for many years.” Atta

Ullah et al., Revolutionizing Cardiac Care: A Comprehensive

Narrative Review of Cardiac Rehabilitation and the Evolution of

Cardiovascular Medicine, 15 CUREUS 1, 4 (2023).

Although documented symptom patterns indicated a likely

knowledge of Type 1 Diabetes in ancient Egypt, “[b]y the early

19th century, there were no statistics about how common

diabetes was, there was no effective treatment, and people

usually died within weeks to months of first showing symptoms,”

and the first manufactured insulin hormone treatment was not

identified until the 1920s. Valencia Higuera, Diabetes: Past

treatments, new discoveries, MEDICALNEWSTODAY (May 4, 2023),

https://www.medicalnewstoday.com/articles/317484#early-science.

And although those treatments inarguably were groundbreaking,

they left patients with ailments later in life. Alan D. Rogol et al.,

oncology and launching entirely new fields like

psychiatry. Sex-transition-related medicine that came

to be referred to as gender-affirming health care grew

in sophistication and prominence with the rest of

modern medicine. Advances in laboratory measurement of physical biomarkers like hormonal levels,

antibiotics, surgical technique, and operating room

sterilization protocol, alongside the development of

distinct medical specialties, permitted the development of surgical and hormonal interventions for

gender dysphoria.

In the mid-nineteenth century, psychiatry became a

distinct branch of medicine, and psychiatrists quickly

identified two seemingly related, but distinct patient

groups based on symptom presentation—people who

felt same-sex desire and people who sought to change

their sex assignment. See Carl Westphal, Contrary

Sexual Feeling: Symptom of a Neuropathic (Psychopathic)

Condition, in SODOMITES AND URNINGS 87, 107, 117-18

(Michael Lombardi-Nash ed. and trans., 2006) (an

1869 essay describing “congenital contrary sexual

feeling,” as “the man feels like a woman, and a woman

like a man,” emphasizing that this was distinct from

same-sex sexual desire). Soon after in 1889, Johns

Hopkins, a research-intensive university hospital, was

Celebration of a century of insulin therapy in children with type 1

diabetes, 108 ARCH. DISEASE CHILD. 3, 6 (2022) (discussing longterm complications from early Type 1 Diabetes treatments in

pediatric patients including blindness, gangrene, and amputations).

Prior to the mid-nineteenth century, there was a relative

dearth in the options for treating cancer, which only incorporated

non-surgical interventions as best practice in the 1990s after

decades of iterative research. See Seamus McAleer, A history of

cancer and its treatment, 91 ULSTER MED. J. 124, 125 (2022).

founded and was responsible, in its early decades, for

major American medical advances in specialties like

surgery and heart conditions. See Nishant Patel et al.,

The History of Heart Surgery at the Johns Hopkins

Hospital, 27 SEMINARS THORACIC CARDIOVASCULAR

SURGERY 341, 341-42 (2015). It became one of the nation’s

premier medical centers dedicated to sex-related care

during the early twentieth century. See JULES GILLPETERSON, HISTORIES OF THE TRANSGENDER CHILD 63

(2017).

In 1910, a medical doctor Magnus Hirschfeld advanced

the first popular medical nomenclature to distinguish

so-called “transvestism,” from non-heterosexual sexual

attraction. See MAGNUS HIRSCHFELD, TRANSVESTITES

124-25 (Michael Lombardi-Nash trans., 1991).

Hirschfeld’s Berlin-based research—which included

American case studies—documented further the

consistent desire to live as a sex not designated at

birth on a permanent basis and acute distress when

prevented from doing so. See id. at 83-95.

Hirschfeld’s work was very influential, leading to

the initiation of gender-affirming health care, interconnected with legal recognition for German transgender

people—a pattern which arose separately in the U.S.

In the early 1900s, Germany legally recognized

transition through police permitting (following a medical

doctor’s certification) to present in public as a sex

different from designation at birth, and, by the 1920s,

through process for legal name changes. 10 See LAURIE

Similar legal reasoning ultimately led U.S courts to find

“anti-crossdressing” laws criminalizing dressing in clothing

stereotypically associated with women, if one was a man, or vice

versa, illegal as applied to people with gender dysphoria, as

supported by medical evidence. See, e.g., City of Columbus v.

Zanders, 25 Ohio Misc. 144, 145, 150 (Mun. 1970); City of Chicago

MARHOEFER, SEX AND THE WEIMAR REPUBLIC: GERMAN

HOMOSEXUAL EMANCIPATION AND THE RISE OF THE

NAZIS 61-62 (2015). And in 1915 in the U.S., Johns

Hopkins opened the Brady Urological Institute, the

country’s first urologic medical clinic (providing the

kinds of hormone and surgical therapies at issue in

this case); its practice differentiated between same-sex

attraction, intersex conditions, and requests for surgically

changing sex. See GILL-PETERSON at 69-70, 129-30.

B. Twentieth Century Medicine Refined

Diagnostic Nomenclature and Included

Pediatric

Treatment

for

Gender

Dysphoria.

Although gender-affirming care for adolescents is

often depicted incorrectly as recently developed in a

field previously restricted to adults, adolescents with

parental consent have had well-documented access to

medical interventions to alleviate distress from gender

dysphoria in the U.S. for the past sixty years. Since

the mid-twentieth century, adolescents have been

pivotal to the development of gender-affirming care

and the diagnostic tools for gender dysphoria, rather

than its newest constituency. 11

v. Wilson, 75 Ill. 2d 525, 533-34 (Ill. 1978); Doe v. McConn, 489 F.

Supp. 76, 81 (S.D. Tex. 1980).

Where medical diagnoses in pediatric patients can present

life-threatening consequences without intervention, like gender

dysphoria, see Ashley Austin et al., Suicidality Among Transgender

Youth: Elucidating the Role of Interpersonal Risk Factors, 37

J. INTERPERS. VIOLENCE NP2696, NP2696 (2020) (“[56%] of

[transgender] youth reported a previous suicide attempt and 86%

reported suicidality”), medical practice “‘recommendations’ rather

than the more strict ‘guidelines’ that are required for standards”

have often been developed based on available practical data from

real-world care, not just on empirical studies, Tony Peregrin,

The first U.S. clinic devoted specifically to providing

gender-affirming treatment for people diagnosed

with gender dysphoria officially opened at the Johns

Hopkins Hospital in 1966. JOANNE MEYEROWITZ, HOW

SEX CHANGED: A HISTORY OF TRANSSEXUALITY IN THE

UNITED STATES 219-20 (2004). From the 1960s to the

1980s, medical care for transgender adolescents was

provided at clinics and physicians’ practices that also

saw adults, allowing specialists to work with patients

of all ages. A generation of university “gender clinics,”

beginning with the University of California, Los

Angeles (1962), Johns Hopkins University (1966), the

University of Minnesota (1966), the University of

Washington (1968), Stanford University (1968), and

the University of Michigan (1968) developed a comprehensive assessment and medical intervention program

anchored in a multidisciplinary outpatient setting.

MEYEROWITZ at 213, 218, 222-23; Cole Roblee et al., A

History of Gender-Affirming Surgery at the University

of Michigan: Lessons for Today, SEMINARS PLASTIC

SURGERY 1, 2 (2024).

From the 1950s through the 1970s, employing

longitudinal and outcome data, clinicians collaborated

to standardize prior medical practice into uniform

principles and set research priorities for treating

gender dysphoria. At a 1953 medical symposium in

Children are at the Heart of New Surgical Practice

Recommendations, 109 AM. COLL. SURGEONS (2024) (discussing

collaborative development of updated heart surgery recommendations for pediatric patients for the first time in 20 years). See

e.g., Rogol et al., supra note 8, at 6 (discussing that until the

introduction of subcutaneous insulin hormone for Type 1

Diabetes patients (who were primarily children and adolescents)

in the early 1990s, patients and their parents had worried for 70

years about the tradeoff between life-prolonging medicine and its

associated risks of blindness, infection, and amputation).

New York City, Dr. Harry Benjamin, who received his

medical degree in Germany, updated Hirschfeld’s

diagnosis of “transvestism” based on clinical experience treating patients experiencing gender dysphoria

since 1938, referring to “the intense and often obsessive

desire to change the entire sexual status including the

anatomical structure.” Harry Benjamin, Transsexualism

and Transvestism as Psychosomatic and Somato-Psychic

Syndromes, 8 AM. J. PSYCHOTHERAPY 219, 219-20

(1954); see also ALISON LI, WONDROUS TRANSFORMATIONS:

A MAVERICK PHYSICIAN, THE SCIENCE OF HORMONES,

AND THE BIRTH OF THE TRANSGENDER REVOLUTION 16062 (2023). The diagnosis emphasized the distress felt

about body parts, which were “sources of disgust” to be

addressed by hormones and surgery. Benjamin at 220.

In 1964, The Harry Benjamin Foundation was

established permitting clinicians to work across

endocrine, surgical, and psychiatric specialties to

provide the highest quality treatment possible to

their patients. LI at 170. Collaborative efforts quickly

grew international, leading to the First International

Symposium on Gender Identity in London in 1969.

MEYEROWITZ at 224. Subsequent symposia spurred the

formation of the Harry Benjamin International Gender

Dysphoria Association (HBIGDA) as the field’s primary

professional and research organization, the organization today named the World Professional Association

for Transgender Health (WPATH). Id. at 255. At its

1977 symposium in Norfolk, Virginia, the Association’s

members voted to codify the field’s medical practice as

the HBIGDA’s “Standards of Care,” the first edition of

which was released in 1979. Memorandum from Alice

Webb to HBIGDA Prospective Members (1977) (on file

with the Kinsey Institute, Indiana University). Reflecting

both the standing of the field in the wider medical

profession and its well-developed standards, in 1980,

diagnostic entries for working specifically with transgender patients were added to the American Psychiatric

Association’s (APA) Diagnostic and Statistical

Manual–III (“DSM”), including 302.50, “Transsexualism,” and a diagnosis specifically for adolescents,

302.60, “Gender Identity Disorder of Childhood.”

SUSAN STRYKER, TRANSGENDER HISTORY 111-12 (2008).

In a 1973 symposium, the head psychiatrist of

Stanford University’s gender clinic, Dr. Norman Fisk,

proposed a diagnostic update to reflect the substantial

data sets generated by clinics like his own. Fisk’s

“gender dysphoria syndrome,” which was widely adopted,

maintained the core of prior diagnoses: “Dysphoria

carries an appropriate dictionary definition—‘an

emotional state characterized by anxiety, depression,

and restlessness,’” in the case of transgender people,

regarding “the sex of their genital anatomy, the

chromosomes, and the endocrine secretions.” Donald

Laub & Norman Fisk, A Rehabilitation Program for

Gender Dysphoria Syndrome by Surgical Sex Change,

53 PLASTIC & RECONSTRUCTIVE SURGERY 388, 390-91

(1974) (internal citations omitted).

Research on gender-affirming medicine for adolescents

grew alongside these developments, permitting the

natural emergence of a formal pediatric specialty. In

1954, Dr. Leona M. Bayer, a leading figure in the field

of pediatrics, consulted with colleagues about the

specificity of childhood gender dysphoria while

treating an eight-year-old patient. Letter from Leona

M. Bayer to Alfred Kinsey (Apr. 8, 1954) (on file with

the Kinsey Institute, Indiana University); Letter from

Louise Lawrence to Leona M. Bayer (Feb. 18, 1956) (on

file with the Kinsey Institute, Indiana University). At

the annual meeting of the APA in 1970, clinicians

presented research on the childhood onset of gender

dysphoria. Report from Wendy Kohler, Rep. of Selected

Panels and Papers of the 123rd Ann. Meeting of the Am.

Psychiatric Ass’n (1970) (on file with the Kinsey

Institute, Indiana University). The 1987 HBIGDA

Symposium included a session on the medical care of

adolescents. Program, Tenth Int’l Symposium on

Diagnosis and treatment of transsexualism (June 9-12,

1987) (on file with The ArQuives, Toronto, Canada).

The subsequent symposium in 1989 featured “Developmental and Childhood Issues in Gender Identity” as

one of the conference’s nine core focal areas. Program,

Eleventh Int’l Symposium on Gender Dysphoria (Sept.

20-23, 1989) (on file with The ArQuives, Toronto,

Canada). The Association’s Standards of Care were

revised to enumerate the assessment and treatment of

adolescents in a separate section of the 5th Edition

published in 1998. Stephen B. Levine et al., 1998

Harry Benjamin Standards of Care, available at

https://perma.cc/B85M-GEQS. The formal codification

of care for children and adolescents reflected not just

its prominence but its longevity and, to ensure

continued research and improvements in care, the

HBIGDA also created a standing committee dedicated

to children and adolescents in 1999. Minutes from

August 1999 HBIGDA Board Meeting, 4 (on file with

the Kinsey Institute, Indiana University).

As scientific and medical research continued apace,

and social attitudes towards transgender people improved

markedly, diagnostic concepts and nomenclature likewise

evolved. When the first modern medical diagnoses

were developed, a wide range of normal human

behavior and experience was classified by psychiatry,

medicine, and the law as mental illness, including

homosexuality. What has principally changed in

nomenclature over time is the stigmatizing and

unscientific labeling of transgender people as mentally

ill. The DSM-V (2013) updated its diagnoses to “gender

dysphoria” to harmonize with the prevailing norm in

the field. Riittakerttu Kaltiala-Heino et al., Gender

dysphoria in adolescence: current perspectives, 9

ADOLESCENT HEALTH, MED. & THERAPEUTICS 31,

31-32 (2018). In 2019, the World Health Organization

updated the 11th Edition of the International

Classification of Diseases to the synonymous “gender

incongruence.” Suyin Haynes, The World Health

Organization Will Stop Classifying Transgender

People as Having a ‘Mental Disorder’, TIME, (May 28,

2019, 12:25 PM), https://time.com/5596845/world-healthorganization-transgender-identity/; see also Gender

incongruence and transgender health in the ICD,

WORLD HEALTH ORGANIZATION, https://www.who.int/

standards/classifications/frequently-asked-questions/

gender-incongruence-and-transgender-health-in-the-icd

[https://perma.cc/G7HA-VPPE]. Throughout the decades,

adolescents with gender dysphoria have been treated

under all the diagnostic rubrics the field has employed.

III. SURGICAL INTERVENTION, CROSS-SEX

HORMONE THERAPY, AND PUBERTY

BLOCKERS ARE WELL-ESTABLISHED,

MAINSTREAM FORMS OF HEALTH CARE

AND ARE THUS NOT EXPERIMENTAL

OR UNTESTED.

Surgical interventions, cross-sex hormone therapy,

and puberty blockers to alleviate symptoms of gender

dysphoria are well-established, mainstream forms of

health care after nearly a century of use. Although

surgery was the first type of intervention developed, it

has been reserved for appropriate candidates in late

adolescence or adulthood, which unfortunately left

many adolescents without treatment for gender

dysphoria. The development of the treatments at issue

here—hormones and puberty blockers—in the twentieth

century greatly expanded options for safe, effective

treatment for adolescents and adults. Improvements

in all three medical interventions have refined the

quality of gender-affirming care and specific histories

of each follow.

A. Gender-Affirming Surgical Interventions Have Been Practiced for Centuries

and Modern Surgeons Established the

First Generation of the Current Forms

of Surgery Specifically to Alleviate

Symptoms

Gender

Dysphoria

Beginning Around 1900.

Prior to the discovery of hormones, surgery was the

primary medical intervention for sex-identity transition.

Early modern medicine era reports of patients

receiving surgical intervention to treat the recognized

symptoms of gender dysphoria are from the first

decade of the twentieth century. See, e.g., MEYEROWITZ

at 17 (discussing an American surgery in 1902); Richard

Mühsam, Chirurgische Eingriffe bei Anomalien des

Sexuallebens, DIE THERAPIE DER GEGENWART, 451-55

(Oct. 1926) (reporting a German surgeon’s operations

on men and women, the earliest in 1912); MANION at

268 (on Alan Hart’s surgery in 1917 in the U.S.).

At this time, the First World War triggered a boom

in plastic surgery, as surgeons rushed to treat huge

numbers of wounded soldiers. Immediately after the

war, surgeons found transgender people to be an

enthusiastic patient population, at a time when any

surgery was dangerous. See, e.g., LUDWIG LEVY-LENZ,

THE MEMOIRS OF A SEXOLOGIST 463 (1954). In 1919,

Hirschfeld founded the world’s first institute for the

scientific study of sex in Berlin, and it became an

international center for gender-affirming medicine.

STRYKER at 39-40. Among the best-remembered patients

today is the American actress Charlotte Charlaque.

See RAIMUND WOLFERT, CHARLOTTE CHARLAQUE:

TRANSFRAU, LAIENSCHAUSPIELERIN, “KÖNIGIN DER

BROOKLYN HEIGHTS PROMENADE” (2021). Trans women

and men underwent gender-affirming surgeries either

at the institute’s clinic or at hospitals in Berlin. See,

e.g., STRYKER at 39-40; LEVY-LENZ at 463. By the

1950s, surgeries had expanded along with public

awareness, culminating in extensive media coverage of

the American Christine Jorgensen’s treatment,

leading to a marked increase in requests for genderaffirming surgeries. See MEYEROWITZ at 92-94.

Unsurprisingly, since surgical intervention in

adolescents bears the added nuance of the individual’s

physical maturation, the development of gender-affirming

surgeries began with adult patients. Although parental

support was rarer during this period than today,

teenagers were among those to approach medical

professionals, but such care was generally delayed

until age of legal majority. See Letter from Elmer Belt

to Harry Benjamin (1958) (on file with the Kinsey

Institute, Indiana University) (describing Dr. Elmer

Belt, a Los Angeles plastic surgeon providing

surgeries for transgender adults, consulting with an

eighteen-year-old transgender girl who “earnestly

desire[d] an operative procedure,” but was instructed

to wait until age twenty-one). As the university gender

clinic system grew in the 1960s, adolescents with

parental support and consent were approved for and

received gender-affirming surgeries through several

programs and affiliated surgeons, typically several

years after initiating cross-gender hormones, and at

the developmentally appropriate moment in late

adolescence. GILL-PETERSON at 176-79, 192-93

(discussing individual care plans in the U.S. in the

1970s-1980s).

The formal development of a pediatric clinic delivery

model from the 1980s to early 2000s added to the

decades of expertise in providing gender-affirming

health care. As today, surgical interventions were the

least common form of gender-affirming care for

adolescents because surgeries are physically and

developmentally irrelevant until very late in

adolescence in most cases. Yet, the long history of

expertise in surgical interventions has resulted in

their endorsement by major medical associations in

the U.S. today where individually assessed as

necessary. Medical Association Statements in Support

of Health Care for Transgender People and Youth,

GLAAD (June 21, 2023), https://glaad.org/medicalassociation-statements-supporting-trans-youthhealthcare-and-against-discriminatory/ [hereinafter

“GLAAD 2023 Press Release”].

B. Hormone Therapy Has Been Prescribed

Since the 1930s.

Research on what were initially termed “internal

secretions” that governed sex and gender characteristics began in the late nineteenth century. CELIA

ROBERTS, MESSENGERS OF SEX: HORMONES, BIOMEDICINE

AND FEMINISM 33-37 (2007). The Austrian scientist

Eugen Steinach took a leading role in the 1910s-1920s,

delivering proof of the existence and functions of the

sex hormones. KATIE SUTTON, SEX BETWEEN BODY

AND MIND: PSYCHOANALYSIS AND SEXOLOGY IN THE

GERMAN-SPEAKING WORLD, 1890s-1930s 122, 127-28

(2019). Steinach’s findings were immediately understood

to have medical applications for sex, sexuality, and

gender. Id. at 122-23.

Once isolated and synthesized in the 1920s and

1930s, sex hormones were used to treat a variety of

issues, including gender and sex-related problems in

cisgender people. W.O. Thompson, Uses and Abuses of

the Male Sex Hormone, 132 J. AM. MED. ASS’N 185, 18588 (1946); Alvaro Morales, The Long and Tortuous

History of the Discovery of Testosterone, 10 J. SEXUAL

MED. 1178, 1180 (2013); Richard Santen & Evan

Simpson, History of Estrogen: Its Purification, Structure,

Synthesis, Biologic Actions, and Clinical Implications,

160 ENDOCRINOLOGY 605, 608 (2019). Estrogen was

first isolated in the late 1920s. Santen & Simpson at

608. Testosterone was first synthesized in 1935.

Morales at 1180.

Physicians and endocrinologists working in private

practice prescribed cross-gender hormones to transgender

adults as early as the 1930s in the UK and from the

1940s in the U.S. Beemyn at 11; Leah Schaeffer &

Conie Christine Wheeler, Harry Benjamin’s First Ten

Cases (1938-1953): A Clinical Historical Note, 24

ARCHIVES SEXUAL BEHAV. 73, 76 (1995). It is possible

that family physicians and specialists in private

practice treating transgender adolescents with their

parents’ consent prescribed cross-gender hormones

during this period, as they prescribed the same

hormone medications to treat other medical conditions.

See GILL-PETERSON at 104-09. However, the diffuse

nature of those medical records makes the evidence

difficult to ascertain.

The university gender clinic system’s large-scale

record-keeping shows that transgender adolescents

were prescribed cross-gender hormones to alleviate

gender dysphoria in the 1960s. Id. at 131. Hormones

were not initiated unless puberty had already begun.

Id. at 149. At UCLA, for example, medical intervention

consisted of psychotherapy at younger ages and when

adolescents were first establishing care. Id. at 148.

Adolescents with established diagnoses and

assessments first transitioned socially, as “Georgina,”

a patient of psychiatrist Dr. Lawrence Newman, did in

the mid-1960s at age fifteen. Id. at 148-49. Working

with Georgina’s parents, Newman arranged for her to

transfer to a new school as a girl while legally changing

her name and beginning cross-gender hormone therapy.

Id. She went on to obtain gender-affirming surgery as

an adult. Id. UCLA clinicians published research on

the treatment of gender dysphoria in adolescents

based on their clinical work during this period.

Lawrence Newman, Transsexualism in Adolescence:

Problems in Evaluation and Treatment, 23 ARCHIVES

GEN. PSYCHIATRY 112 (1970). So too did clinicians at

the University of Michigan. Saul Harrison & Albert

Cain, The Childhood of a Transsexual, 19 ARCHIVES

GEN. PSYCHIATRY 28 (1968).

Transgender adolescents and their parents also

worked with clinicians in private practice who

prescribed cross-gender hormones consistent with the

field’s standards. In 1970, “Vicki,” a sixteen-year-old

transgender girl from Columbus, Ohio, began estrogen

under the supervision of a physician, and with her

father’s consent, following diagnostic assessment by

psychiatrists. GILL-PETERSON at 158. In New York,

psychiatrist Dr. Jeanne Hoff worked with a stream of

transgender adolescents and their parents in the

1970s and 1980s, some who had already begun crossgender hormones with prior clinicians and others at

the beginning of the assessment process. Id. at 192-93.

Several public health clinics also provided crossgender hormones by affiliating with experts in the

field. The first was San Francisco’s innovative Center

for Special Problems partnering in 1967 with local

psychiatrists and physicians experienced with gender

dysphoria to provide cross-gender hormones when

indicated to the city’s transgender population, which

included many adolescents. STRYKER at 75-76.

In the 1990s, the Center for Transyouth Health and

Development at Children’s Hospital in Los Angeles

became one of the first pediatric institutions to

designate its work with transgender adolescents as a

formal specialty, including cross-gender hormone

therapy for adolescents. Johanna Olson-Kennedy et

al., Impact of Early Medical Treatment for Transgender

Youth: Protocol for the Longitudinal, Observational

Trans Youth Care Study, 8 JMIR RSCH. PROTOCOLS 1,

1-7 (2019). The pediatric clinic model developed into a

new standard with the opening of the Gender

Management Service at Children’s Hospital Boston in

2007. See Norman Spack et al., Children and Adolescents

With Gender Identity Disorder Referred to a Pediatric

Medical Center, 129 PEDIATRICS 418, 419 (2012). After

decades of successful use, cross-gender hormones were

formally recognized by major medical associations as

standard interventions for alleviating gender dysphoria

in adolescents, beginning with the Endocrine Society

in 2009. Wylie Hembree et al., Endocrine Treatment of

Transsexual Persons: An Endocrine Society Clinical

Practice Guideline, 94 J. CLINICAL ENDOCRINAL &

METABOLISM 3132, 3132-50 (2009).

C. Puberty Blockers Were Developed in

the 1980s.

As discussed above, prior to the development of

puberty blockers, medical intervention for transgender

adolescents involved initiating cross-gender hormone

therapy at the developmentally appropriate moment

measured by pubertal development. Supra 20-22.

Clinicians determined that puberty was the most

consequential period for intervention, because it

tended to cause significant dysphoria with the

unwanted development of secondary sex characteristics

and was an especially effective moment developmentally in which to begin cross-gender hormones if

indicated. GILL-PETERSON at 176-84. However, it was

impractical to hope that transgender adolescents and

their parents would time their affiliation with a clinic

and complete all pre-hormonal assessment processes

to coincide perfectly with the onset of puberty, which is

unique in every individual. See Spack et al. at 419.

At Johns Hopkins, the Harriet Lane Home’s

pediatric endocrine ward developed hormonal treatment

protocols to slow onset of puberty and development of

secondary sex characteristics in children and adolescents from the 1930s to the 1960s. GILL-PETERSON at

104-09. The isolation of the precise gonadotropinreleasing hormone (GnRH) responsible for the onset of

puberty came from concurrent research in neuroendocrinology. Neuroscientist Roger Guillemin and

endocrinologist Andrew Schally isolated the compounds

and pathways responsible, first synthesizing analogues to

induce or accelerate the biological processes involved

in puberty and fertility. Andrew Schally, Aspects of

Hypothalamic Regulation of the Pituitary Gland: Its

implications for the control of reproductive processes,

202 SCIENCE 18, 22-23 (1978). Guillemin and Schally

then proposed the concept of an antagonist, or

suppressive compound, in 1971, id. at 25, and their

research was recognized with a Nobel Prize in 1977,

Richard Paulson & Keith Gordon, Gonadotropinreleasing hormone: incredible 50 years, 4 FERTILITY

STERILITY REP. 1, 1 (2023). Pharmaceutical companies

developed the first GnRH antagonists in 1973. Kristof

Chwalisz, Clinical development of the GnRH agonist

leuprolide acetate depot, 4 FERTILITY STERILITY REP.

33, 33 (2023). Leuprolide acetate (Lupron) was the first

medication to enter clinical trials in the U.S. for

suppressive treatment of endocrine conditions, including

endometriosis, prostate cancer, and, most relevant to

this case, precocious puberty; it was approved by the

Food and Drug Administration (FDA) in 1985 and

remains in use today. Id. at 37.

The addition of GnRH antagonists to existing

interventions allowed adolescents, their clinical teams,

and their parents to temporarily and reversibly pause

puberty while discussing future plans, all while

minimizing the intense distress brought on by puberty.

See Spack et al. at 419-22. The rationale for puberty

blockers was therefore deliberately time-bound: either

an adolescent would decide to proceed with crossgender hormones, or would not, but either way puberty

blockers would be discontinued, and development

would resume. Id.

The Department of Child and Adolescent Psychiatry

at Utrecht University Hospital in the Netherlands was

the first clinic to add puberty suppressing medication,

based on this rationale, to its interventions in the

1990s, and reported positive psychosocial outcomes.

See, e.g., PEGGY COHEN-KETTENIS & FRIEDEMANN

PFAFFLIN, TRANSGENDERISM AND INTERSEXUALITY IN

CHILDHOOD AND ADOLESCENCE 63-64, 132-33, 169 (2003);

Annelou de Vries et al., Young Adult Psychosocial

Outcome After Puberty Suppression and Gender

Reassignment, 134 PEDIATRICS 696, 696 (2014). Based

on those results and the established usage of the

medications in precocious puberty, GnRH antagonists

were added to the roster of medical interventions at

clinics in the U.S. in the 2000s. Sahar Sadjadi,

The Vulnerable Child Protection Act and Transgender

Children’s Health, 7 TRANSGENDER STUD. Q. 510, 511-12

(2020). Puberty blockers were also incorporated into

the Standards of Care set by the WPATH and have

since been endorsed as appropriate medical care for

alleviating gender dysphoria by every major medical

association in the U.S. See GLAAD 2023 Press Release.

Because the medical interventions involved in

alleviating dysphoria are also used in cisgender

people, and transgender people comprise a small

percentage of the overall population, most genderaffirming care is provided to cisgender people, and

without politicization. Dannie Dai et al., Prevalence of

Gender Affirming Surgical Procedures Among Minors

and Adults in the US, 7 JAMA NETWORK 1, 3 (2024).

Puberty blockers for the treatment of gender

dysphoria are categorized as “off-label” prescriptions

like many other common medical treatments, not

because their reliability or effects are unknown, but

because the small number of transgender adolescents

receiving them has practically disincentivized the

FDA, as well as pharmaceutical companies, from

undertaking the intensive process of adding gender

dysphoria to the label. As the American Academy of

Pediatrics notes, “the term ‘off-label’ does not imply an

improper, illegal, contraindicated, or investigational

use.” Kathleen Neville et al., Policy Statement: OffLabel Use of Drugs in Children, 133 PEDIATRICS 563,

563 (2014). In fact, the time and resources required to

label pediatric uses of medications has meant labeling

for adults occurs sooner. See, e.g., Alicia Bazzano et al.,

Off-Label Prescribing to Children in the United States

Outpatient Setting, 9 ACAD. PEDIATRICS 81, 84 (2009).

Puberty blockers prescribed off-label to alleviate

gender dysphoria are not exceptional in this regard.

Ongoing research on their efficacy and potential risks

are part of the normal clinical and scientific process for

improving medical care.

D. The Historical Record Offers Additional

Testimony Through Lives of Transgender

Adolescents Thriving After Receiving

Gender-affirming Health Care.

Medical and scientific research conducted for over

a century shows the impact of these medical

interventions to alleviate gender dysphoria. Transgender

adolescents who thrived thanks to gender-affirming

care provide additional testimony. See, e.g., GILLPETERSON at 193 (discussing the story of one of Hoff’s

first transgender adolescent patients, a high school

senior when he initiated care in 1980, who, thanks to

the standard of care cross-gender hormones and

gender-affirming surgery, thrived and later attended

medical school in hopes of embarking on a career in

Hoff’s footsteps to serve others as she had helped him).

Contrary to media depictions of transgender identification among adolescents and medical interventions

as twenty-first century phenomena, young people have

consistently and articulately expressed their need for

medical interventions to alleviate gender dysphoria

since they became widely available.

In the 1960s and 1970s, when gender-affirming

medicine was the subject of extensive press coverage,

clinicians whose names appeared in newspapers

received letters from transgender adolescents asking

for help. A series of letters to Dr. Benjamin articulate

these adolescents’ deep certainty of their gender and

demonstrate an impressive understanding of the risks

and rewards of medical intervention–including the

risks of doing nothing. See, e.g., id. at 151 (describing

a seventeen-year-old transgender girl’s 1969 letter

expressing distress that puberty was causing rapidly

accelerating height, “I understand that growth can be

stopped with hormones. . . In that case, my treatment

and growth can be controlled simultaneously. This can

only be done if I start now.” And describing a sixteenyear-old’s 1971 letter that shared her excruciating

pain enduring puberty in which she said she was

“humiliated by the hair . . . getting thicker and darker

on my body, by my voice that’s getting deeper with

every word I say….With every new day that androgen

runs through my veins, I get more miserable. It has to

stop! Androgen just isn’t me; estrogen is!”). Still others

wrote candidly about the bullying they experienced at

school for being different and the pain of familial

rejection. Id. at 151-52.

Long before any journalist or state legislator publicly

discussed transgender children, these letters illustrate

that adolescents understood and could deftly address

adult concerns about medical interventions. State laws

banning gender-affirming medical interventions for

gender dysphoria legislate an entire generation of

transgender adolescents today to the fate that these

adolescents dreaded over a half-century ago.

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed.

Respectfully submitted,

KARA N. INGELHART

Counsel of Record

NORTHWESTERN PRITZKER SCHOOL

OF LAW, BLUHM LEGAL CLINIC,

LGBTQI+ RIGHTS CLINIC

375 E. Chicago Ave.

Chicago, IL 60611

(312)503-3770

kara.ingelhart@law.nortwestern.edu

Counsel for Amici Curiae

September 3, 2024

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX: List of Amici Curiae .......................

APPENDIX: LIST OF AMICI CURIAE

The American Historical Association (AHA) is

the largest professional organization (10,500 members)

in the world devoted to the study and promotion of

history and historical thinking. AHA is a non-profit

membership organization, founded in 1884 and incorporated by Congress in 1889. It provides leadership to

the discipline on such issues as academic freedom,

access to archives, professional standards, and the

centrality of history to public culture.

The Organization of American Historians (OAH)

is the largest scholarly organization devoted to the

history of the U.S. and to promoting excellence in the

scholarship, teaching, and presentation of that history.

It is an international non-profit membership organization,

including historians employed in a variety of academic

and institutional settings. The OAH is committed to

the principle that the past is a key to understanding

the present and has an interest—as a steward of

history, not as an advocate of a particular legal standard—

to ensure that the Court is presented with an accurate

portrayal of American history and traditions.

The LGBTQ+ History Association was founded

in 1979 as the Committee on Lesbian and Gay History.

Since 1982, the Association has been officially recognized as an affiliate of the AHA and meets annually in

conjunction with the AHA conference, where it

sponsors sessions on LGBTQ+ history. It holds a biannual Queer History Conference, continuing its

tradition of facilitating communication among scholars in

a variety of disciplines who together shape and share

the latest advances in research. The Association’s

expertise ranges from local and global LGBTQ+

history and spans from ancient times to the near

present. Today it has nearly 400 active members.

Genny Beemyn is Director of the Stonewall Center

at the University of Massachusetts Amherst. Their

research focuses on the history of trans and nonbinary

people in the U.S. in the 20th and 21st centuries,

particularly the experiences of trans and nonbinary

college students. They authored THE LIVES OF

TRANSGENDER PEOPLE (2011), which, at the time, was

the largest study of trans people by a U.S. researcher.

Their other books include A QUEER CAPITAL: A

HISTORY OF GAY LIFE IN WASHINGTON, D.C. (2014),

Trans People in Higher Education (2019), THE SAGE

ENCYCLOPEDIA OF TRANS STUDIES (2021), and THE

SAGE ENCYCLOPEDIA OF LGBTQ+ STUDIES (2024).

They have had work published in, among others, the

Journal of Diversity in Higher Education, Journal of

LGBT Youth, Journal of Lesbian Studies, Journal of

Homosexuality, and Psychology of Sexual Orientation

and Gender Diversity.

Jules Gill-Peterson is Associate Professor of

History at Johns Hopkins University. She authored

two books: HISTORIES OF THE TRANSGENDER CHILD

(2018) and A SHORT HISTORY OF TRANS MISOGYNY (2024).

Gill-Peterson is the editor of THE CONVERSATION ON

GENDER DIVERSITY (2023) and was an editor of TSQ:

Transgender Studies Quarterly from 2020-2024. GillPeterson received fellowships from the American

Council of Learned Societies and the Radcliffe Institute

for Advanced Study at Harvard University. She was

the inaugural Mellon Foundation Public Scholar in

Residence at the University of Southern California’s

Department of Gender and Sexuality Studies in 2021

and is a recipient of the Chancellor’s Distinguished

Research Award from the University of Pittsburgh.

Alison Li is an historian of science and medicine

who writes about medical research, hormones, and the

culture in which they were shaped. Her book,

WONDROUS TRANSFORMATIONS (2023), is the story of

Dr. Harry Benjamin. Her current project is MOLECULES OF

INFLUENCE: HORMONES AND OUR LIVES for Reaktion

Books. She has a BSc in biochemistry (McGill

University) and an MA and PhD in the history and

philosophy of science and technology (Toronto

University).

Laurie Marhoefer is Professor of History at the

University of Washington, formerly John Bridgman

Endowed Professor of History (2020-23). He is a legal

and political historian of gender and sexuality in the

modern world, particularly in Germany and the U.S.

He authored RACISM AND THE MAKING OF GAY RIGHTS

(2022) and SEX AND THE WEIMAR REPUBLIC (2015). His

essays appeared in the American Historical Review,

Central European History, The Washington Post, Der

Spiegel, and elsewhere. He held visiting positions at

the University of Oxford, the University of Toronto,

and the University of Michigan, and won fellowships

from the Andrew W. Mellon Foundation and the U.S.

Holocaust Memorial Museum, among others.

Joanne Meyerowitz is the Arthur Unobskey

Professor of History and American Studies at Yale

University. She is a past president of the OAH and

past editor of the Journal of American History. At Yale,

she chaired the American Studies Program (2012–15)

and the Department of History (2018, 2020-21) and

currently serves as co-director of the Yale Research

Initiative on the History of Sexualities. Her books

include HOW SEX CHANGED: A HISTORY OF

TRANSSEXUALITY IN THE UNITED STATES (2002) and A

WAR ON GLOBAL POVERTY: THE LOST PROMISE OF

REDISTRIBUTION AND THE RISE OF MICROCREDIT (2021).

Her articles have been published in the American

Historical Review, Journal of American History, Modern

American History, Gender and History, and the

Bulletin of the History of Medicine.

stef m. shuster is Associate Professor in Lyman

Briggs College and Department of Sociology and with

the Consortium for Sexual and Gender Minority Health

at Michigan State University. They authored TRANS

MEDICINE: THE EMERGENCE AND PRACTICE OF

TREATING GENDER (2021). Their research includes

studying the social, cultural, and historical contexts of

medical professionals who work with sexual and

gender minority (SGM) communities. They currently

serve as a deputy editor for Gender & Society.

Amy L. Stone is Professor of Sociology and

Anthropology at Trinity University. They authored

and edited books about U.S. LGBTQ history, including

OUT OF THE CLOSET, INTO THE ARCHIVES: RESEARCHING

SEXUAL HISTORIES (2015), GAY RIGHTS AT THE

BALLOT BOX (2012), and CORNYATION: SAN ANTONIO’S

OUTRAGEOUS FIESTA TRADITION (2017). They authored

works on contemporary LGBTQ life, including QUEER

CARNIVAL: FESTIVALS & MARDI GRAS IN THE SOUTH

(2022).

Susan Stryker (Ph.D. United States History, UC

Berkeley 1992) is Professor Emerita of Gender and

Women’s Studies at University of Arizona, where she

directed the Institute for LGBTQ Studies. She currently

holds a Distinguished Visiting Faculty appointment at

Stanford University’s Clayman Institute for Gender

Research and directs the TEN:TACLES Initiative

(Transgender Educational Network: Theory in Action

for Creativity, Liberation, Empowerment and Service),

funded through a $1.5 million grant from the Mellon

Foundation. She has previously held visiting professorships and research fellowships at Harvard, Yale,

Johns Hopkins, Northwestern, Mills College, Simon

Fraser University, and Macquarie University. She was

founding co-editor and former executive editor of TSQ:

Transgender Studies Quarterly, co-editor of the multivolume, award-winning Transgender Studies Reader,

and currently co-edits the Duke University Press book

series ASTERISK: GENDER, TRANS-, AND ALL THAT

COMES AFTER. Dr. Stryker also co-directed the Emmywinning documentary film Screaming Queens: The

Riot at Compton’s Cafeteria (2005) and authored

TRANSGENDER HISTORY: THE ROOTS OF TODAY’S

REVOLUTION (2008, 2017, and forthcoming). Her

book CHANGING GENDER, an intellectual history of the

gender concept, is at press with Farrar Straus Giroux.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.