There you go again. The U.S. Supreme Court heard oral arguments last week (NYT, 10.8.25) in a case brought by an evangelical counselor challenging Colorado’s ban of conversion therapy. And from the questions from the conservative majority, many court watchers think the counselor will prevail on First Amendment free speech grounds. As incredulous as this argument sounds to me, this is one of the two positions being argued, that her “counseling” is permissible as an exercise of entitlement to free expression of her Christian beliefs. The counterargument is of course that the Colorado ban is a legal regulation of professional conduct.
Alito said the Colorado law looks like “blatant viewpoint discrimination,” which makes me want to apply a quote originally said about Scalia, “He has one of the keenest legal minds of the thirteenth century” (Ed Asner). Are we really still here in this place as a country? Seriously? Even former Republican Utah governor Gary Herbert said, “The stories of youth who have endured these so-called therapies are heart-rending” (Hooley for NYT).
Free speech is one thing. Competent medical practice is quite another. Well, what does the American Medical Association (AMA) say about all this? From the AMA website:
The American Medical Association supports everyone’s access to quality evidence-based health care regardless of gender or sexual orientation. To ensure that LGBTQ patients are not discriminated against in seeking the care they need, nor forced into medically un-sound programs, the AMA works diligently at the state and federal levels to expand access to medical services, reduce stigma in treating patients with unique needs and break down discriminatory barriers to necessary care.
So-called “conversion therapy” refers to any form of interventions which attempt to change an individual’s sexual orientation, sexual behaviors or gender identity. Underlying these ‘therapies’ is the assumption that homosexuality and gender nonconformity are mental disorders and that sexual orientation and gender identity can be changed. This assumption is not based on medical or scientific evidence. Professional consensus rejects pathologizing homosexuality and gender nonconformity and evidence does not support the efficacy of changing sexual orientation.
“Conversion therapy” often includes unethical techniques including electric shock, deprivation of food and liquid, chemically induced nausea and masturbation reconditioning. These practices may increase suicidal behaviors and cause significant psychological distress, anxiety, lowered self-esteem, internalized homophobia, self-blame, intrusive imagery and sexual dysfunction.
The AMA opposes the use of “conversion therapy” for sexual orientation or gender identity.
Underlying the conservative argument is the belief that LGBTQ people are flawed human beings who need to be “fixed.”
This whole Supreme Court case just happens to intersect with my interest in transgender women in general and more specifically, transgender women in competitive sports. One vector of my interest that stuck with me was the number of prominent American women swimmers who spoke out publicly IN FAVOR of allowing Lia Thomas, a transgender woman, to compete against cis women (defined later) at the highest national and international levels. I hadn’t thought much or deeply about the issue at the time, but these announcements made an impression on me as I intuitively thought women would be universally opposed to “men” competing in women’s sports. (To be sure there was indeed plenty of backlash, too, as conservatives, not content to ban transgender women from sports, fought to keep them out of their bathrooms, too.)
And then a book club I’ve been in for a couple of years selected for discussion Laurie Frankel’s moving novel, This Is How It Always Is, which featured a family with five sons, the youngest of whom was transgender and identified as a girl from a very early age. This is a story of struggle and acceptance against bone numbing discrimination and ignorance and fear. This novel represented a paradigm shift, to use a cliché, in the same way that Smith’s The Way the Word Is Passed particularized and personalized many aspects of race and racism I had not previously considered. Frankel’s story was made all the more poignant and real for me when I learned later that she had a transgender child of her own. If you haven’t read this novel, I encourage you to do so. But I’ll just tell you that two occurrences in the book underpinning this reflection were Frankel’s telling of her odyssey from Wisconsin to Seattle in search of an environment that was more accepting and freer from discrimination, and her telling of how a transgender woman was beaten to death at a fraternity party. This particular incident was fictional in Frankel’s telling but I could see it as possible and real. It’s historically known, I’ll just say, that transgender populations were an early target of Hitler’s pogroms, ending in death and desolation at places like Dachau or Treblinka where their ashes were commingled with the baby shoes and hats and coats and other wisps of memory you can see on display every day at the Holocaust Museum in Washington.
First, some context. What is a transgender woman? A transgender woman is an individual who was assigned a male identity at birth but lives and identifies as a woman. In a recent UCLA study using data from state and federal health departments, the 2021-2023 Behavior Risk Factor Surveillance System, and the 2021 and 2023 Youth Risk Behavior Survey, approximately 693,000 American adults identify as transgender women. (This number excludes those in the 13-17 age range.) This population is out of approximately 2.1 million adult Americans who identify as transgender, with an additional 724,000 in the 13-17 age range. The designation used in the popular and scientific literature to describe a woman whose self-identification and assignment at birth was as female is cis woman.
There are two perspectives I want to briefly explore, transgender women in sports and transgender access to healthcare and public services (aka bathrooms).
The issue of transgender women competing in women’s sports exploded onto the national consciousness when Lia Thomas, a transgender swimmer at the University of Pennsylvania, won a NCAA Division 1 national championship in March 2022 in the 500-yard freestyle event. She had previously competed on the men’s team. It should be noted that from a national perspective for the sport, her performance was not remarkable and far from record-setting. For perspective, Katie Ledecky did 9.18 seconds better in setting the NCAA record. But the word “fairness” suddenly dominated national dialog on transgender women in sports, continuing to escalate and culminating in Trump’s 2025 executive order, “Keeping Men Out of Women’s Sports,” claiming without evidence that “men claiming to be girls” always outperformed their female competitors, thereby “stealing” victories.
At the visceral level, most Americans see this as intuitively true. Men are inherently bigger and stronger. That’s why we have men’s sports competitions and women’s. Equality is a pervasive issue, but not in the competitions themselves. There would be obvious dangers in, for example, having women and men compete head-to-head in boxing or, in, well, almost any sport. But what people overlook when they oversimplify the issue is that transgender women are not “men” in this basic sense. They have gone through biological treatment and amelioration as part of their gender identity, or they cannot compete. Period. These parameters are different for different sports, and they are set by governing authorities such as the IOC or NCAA. How do we know these transgender women athletes meet the applicable criteria? They are tested! No one just shows up at a swim meet and decides on the spot to compete as a woman because they happen to like Taylor Swift, like to wear sculptural outerwear, or just want to win a medal and the men’s field is too strong to do so.
The rules governing what is permissible for a transgender woman to compete at elite levels in most sports has been fluid in the last decades but has now achieved a high level of specificity in terms of androgen sensitivity and testosterone levels.
For what is permissible, I will cite the IOC requirements. The IOC Framework requires international governing federations to create their own sport-specific eligibility requirements for transgender women. (There are transgender men competing in sports also, but I’m confining this essay to transgender women, since this is where the heart of controversy lies.) For the Paris Olympics in 2024, the rule was that transgender women must have completed their transition before the age of twelve. In swimming specifically, the IOC defers to the Federation Internationale de Natation (FINA), which translates to International Swimming Federation in English. This policy is 24 pages long. The following is a one-paragraph excerpt:
Male-to-female transgender athletes (transgender women) and athletes with 46 XY DSD whose legal gender and/or gender identity is female are eligible to compete in the women’s category in FINA competitions and to set FINA World Records in the women’s category in FINA competitions and in other events recognised by FINA if they can establish to FINA’s comfortable satisfaction that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age 12, whichever is later. Specifically, the athlete must produce evidence establishing that: i. ii. They have complete androgen insensitivity and therefore could not experience male puberty; or They are androgen sensitive but had male puberty suppressed beginning at Tanner Stage 2 or before age 12, whichever is later, and they have since continuously maintained their testosterone levels in serum (or plasma) below 2.5 nmol/L. Page 7 of 24 iii. An unintentional deviation from the below 2.5 nmol/L requirement may result in retrospective disqualification of results and/or a prospective period of ineligibility. iv. An intentional deviation from the below 2.5 nmol/L requirement may result in retrospective disqualification of results and a prospective period of ineligibility equal or commensurate in length to periods imposed under the FINA DRC for intentional anti-doping rule violations involving anabolic steroids. [Comment to Section F.4.b: For purposes of the Policy, all measurements of serum testosterone must be conducted by means of liquid chromatography coupled with mass spectrometry.]
The new policy effectively bans transgender women from elite competitions. While you and I may disagree with the policy and believe that the pendulum has swung too far in the other direction, we can at least note that transgender people exist and are entitled to respect and dignity. This policy is not dismissive, and it has not been hastily developed. The FINA World Congress voted 71.5% in favor of the new policy, which took effect on June 22, 2022, after hearing testimony from members of a working group established in November 2021, comprising an athlete group, a science and medicine group, and a legal and human rights group. (Note that effective 2.25.25, the NCAA has banned transgender women from competing in any sport where gender separation occurs and in which a championship is awarded.) This policy is a vast improvement over invasive rules of the past. In 2014, after competitors complained that she “looked like a boy,” an Indian runner, Dutee Chand, was forced to undergo a “Level Three Assessment,” which required an MRI, a chromosome analysis, and a gynecological exam. The protocols of World Athletics included measuring the size of the clitoris, examining the vagina and labia, and evaluating pubic hair patterns and breast size based on a five-point scale (Barnes, 2023).
One prominent American swimmer, Riley Gaines, has written a book voicing her opposition to the participation of transgender women in swimming competitions, Swimming Against the Current, and indeed, stood with President Trump at the Republican National Convention in 2024 when he made predictable comments on the issue: “Some women are being badly injured by the windburn that’s caused by the man going so much faster. The wind is blowing. It’s just terrible. It’s so unfair.” I should point out that to date not a single transgender woman who came out in high school has been awarded a college athletic scholarship. None. Two transgender girls won some track meets in high school in Connecticut, a state with no medical or legal restrictions. But since these two students graduated in 2020, there have been no controversial cases in Connecticut of transgender athletes competing (Barnes, 2023). Still, if you look at the states banning transgender competition, if they cite any evidence at all of unfairness, they cite Connecticut. This is because they can’t find a single example in their own states.
However, Gaines’ is not the only prominent voice in this space. Erica Sullivan, for one, who won a silver medal at the Tokyo games in 2021, has voiced strong advocacy for Lia Thomas and other transgender athletes: “I’m proud to be one of more than 300 NCAA, Team USA and Olympic swimmers who signed an open letter from Schuyler Bailar and Athlete Ally in support of Lia and all transgender and nonbinary swimmers,” she wrote. “At the NCAA championships, I'll be cheering on Lia and all of the amazing swimmers that make this sport great by being authentically and proudly themselves” (from an op ed in Newsweek, 3.22.22.). I just mention Sullivan et al as a reminder that “everyone” who competed against Lia Thomas was not outraged by her presence or even found it mildly objectionable.
I realize this is a highly controversial subject and one that can’t be authoritatively adjudicated in a brief essay, but I do want to say one more thing about transgender women in elite competitions. The question of differentiation is still an open question, and research is as sadly lacking as it is desperately needed. One study published in the British Journal of Sports Medicine (2024) found that trans women volleyball players “displayed similar exercise performance and biomarkers compared with [cisgender women] but lower results compared with [cisgender men].” Again, an important premise in this study is that the cohort met strict, carefully defined amelioration criteria. In other words, they had undergone transitional gender treatment that was clinically verified. The conclusions of this study belie the sweeping generalizations to the contrary in conservative echo chambers. As I said, much more research like this is needed. In addition, it goes without saying that some cis women have naturally occurring androgen insensitivity, and no two individuals have the same hormonal readings.
In looking at issues related to the challenges faced by transgender females in general, I want to return briefly to a section in Laurie Frankel’s novel. Her daughter Poppy identified as a girl from the age of three, all the more poignant a choice when she had four older brothers. The book chronicles the journey for the parents as well, as they loved Poppy and sought out exhaustive council from counselors and sensitive and aware medical practitioners. In the end, they allowed Poppy to live life as she chose—as a girl when they moved to Seattle where she was happy and well-adjusted living that way. She had a circle of girlfriends and a best friend, the usual cycle of sleepovers and other age-appropriate activities for pre-pubescent girls. To be clear, in the story, no one outside Poppy’s immediate family knew she was transgender. But now she was entering puberty, and her circle of friends would begin to physically mature. They would grow breasts as she remained flat, for example, and Poppy’s voice would deepen, and she would grow facial hair. What happens next in real life needs to be a decision by the Poppys of this world and by her parents and those who love her and want her to live a life of happiness and fulfillment, what all parents want. The basic building block of allowable amelioration parameters is Hormone Replacement Therapy (HRT). HRT needs to be an option for parents and qualified professionals, not a reactionary legislative prohibition by conservatives with little firsthand knowledge of, or sensitivity to, the issue.
It’s easy to say we should ban HRT for children under eighteen and leave it at that. Most of these voices come from individuals who have never dealt in any meaningful or personal way with these issues. Poppy has only known life as a girl. What is fair as she embarks on puberty? Why can’t her family, counselors, and doctors be free to inform this deeply personal and life-altering decision? At least thirty bills in twenty states have been filed to criminalize transgender young people from receiving healthcare related to medical transition, a position opposed by the American Academy of Pediatrics among others.
There is also evidence that HRT saves lives. While more research is needed, one review of the scientific literature (Jackson, 2023) reported that of 23 studies that met the criteria for inclusion, the majority “indicated a reduction in suicidality following gender-affirming treatment.” Reviews (Baker et al, 2021) have shown that “gender-affirming hormone therapy is associated with psychological benefits that include reductions in depression and anxiety and improvements in quality of life among transgender people.”
I’m not pretending that this reflection represents a review or even familiarity with recent scientific literature on transgender wellbeing. I’ve barely skimmed the surface here. I just want to reiterate my plea for universal compassion and enlightenment, not a knee-jerk response based on fear and ignorance. We know we can do better. It’s just a matter of national shame that we have to wait for the midterms to show it.
