Judicial Distortions: An injunction against Alabama’s ban on pediatric gender transition illustrates the problem of judicial policymaking in pediatric medicine.

Transgenderism’s swift march through the institutions has relied heavily on the courts. Among the most recent examples is Eknes-Tucker v. Marshal, in which a federal judge blocked key provisions in Alabama’s Vulnerable Child Compassion and Protection Act. The law bans “gender affirming” therapy for minors—a euphemism for using puberty-blocking drugs, synthetic hormone injections, and surgeries on adolescents who experience distress associated with their sex. The court issued a preliminary injunction that left the law’s ban on surgeries intact but declared the ban on puberty blockers and cross-sex hormones as very likely unconstitutional.

What makes Eknes-Tucker especially interesting is that the judge in that case, Liles C. Burke, is a Donald Trump appointee with a history of collaborating with and defending the Federalist Society. In 2020, another Trump appointee and Federalist Society friend, Supreme Court Justice Neil Gorsuch, wrote the 6–3 opinion in Bostock v. Clayton County extending Title VII protection to transgender employees using an “original public meaning” approach. Yet Gorsuch went out of his way in that case to clarify that the decision did not turn on whether “sex” meant reproductive traits or a subjective sense of self, and indeed that the Court was willing to assume the conventional definition.

In Eknes-Tucker, by contrast, the question of what makes us male or female, and how the medical establishment should understand and respond to these realities, is more central and harder to ignore. If transgender boys really are girls whose insecurities have led them to internalize stereotypes and to want to escape what feels like a confining femininity by crossing to the other side of the gender ledger, then confirming that those insecurities are sound and treating them with drugs and surgeries constitutes an egregious breach of medical ethics.

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The problem with Turner’s argument is that most transgender people, and virtually all transgender plaintiffs in federal lawsuits, are anything but gender-nonconforming. It would have been more accurate for Turner to write that what defines transgender people is the fact that they do not conform to stereotypes associated with their sex but conform with gusto to stereotypes associated with the opposite sex. As clinicians and researchers who study gender dysphoria in youth have noted, most kids who show up at gender clinics nowadays are teenage girls who have internalized stereotypes about femininity, feel they cannot live up to them, and seek to escape them by appearing and behaving like stereotypical boys. Feminists and gay rights activists have long argued that transgenderism (in this understanding—for there is another one) represents a deepening of patriarchal norms and an excessive policing of gender boundaries. The DSM-5 itself lists desire to conform to stereotypes of the opposite sex as part of the diagnostic criteria for youth gender dysphoria. Since the mental health professions seem to care more about alleviating subjective distress in individuals than about changing societal understandings of human nature and sexuality, the conscience of a progressive therapist need not be disturbed at the suggestion that she is “affirming” a teenage girl in her obsessive conformity.

In short, a legalism whose original purpose was to bypass judicial caution in applying civil rights law and judicial respect for the democratic process has taken on a life of its own. There is now an entire DEI industry promoting the view that transgenderism is a subset of the broader category “gender nonconforming people.” This framing may be useful in litigation and in helping DEI racketeers secure lucrative consulting contracts, but it fundamentally misunderstands the sources of gender-incongruent behavior in minors and very likely fuels the pediatric gender transition industry. Those who believe that politics is downstream from culture would be wise to heed this as an example of how institutional realities and incentives—in this case, getting judges to believe that they are not legislating from the bench—can also shape culture.