The Dangerous Overreach of California’s SB107

In the name of social justice, Democrats are endangering families

By Lisa Selin Davis

A new bill moving through the California state legislature is drastically raising the stakes in the cultural and legislative battle over “gender-affirming care.” State Bill 107, simply known as “Gender-affirming health care,” would allow children being denied puberty blockers, cross sex hormones, or gender surgeries in one state to come to California to receive those interventions—in defiance of parental or medical opposition, custody agreements, or laws that prohibit access in their home states. SB107 essentially turns California into a “sanctuary state” for trans-identifying kids, allowing them access to gender medicine without a mental health evaluation or even a diagnosis of gender dysphoria. It openly flouts several key provisions of the Constitution of the United States; strips out all gatekeeping for those seeking medical interventions for gender dysphoria or to affirm a trans identity; and annuls the authority of any parent who would stand in the way. Written in response to laws in various conservative states prohibiting what its backers call “gender affirming care”, SB 107 is a vast overreach that will set off a flood of civil litigation and could pose a danger to young people seeking gender medicine in an environment in which the basic standards for ensuring that only those who truly need such intensive interventions have been prohibited by law. 

SB107 seems to be written in response to laws in various conservative states prohibiting such medical interventions, like Arkansas’s HB1570—the Save Adolescents From Experimentation (SAFE) Act. That bill, which passed but is still tangled up in the courts, delays any surgical or medical interventions for gender dysphoria until after age 18.    And it seems to counter Texas Attorney General Ken Paxton’s recommendation that the medical gender transition of children be counted as child abuse. Paxton argues that  since puberty blockers followed by cross-sex hormones pose a risk of sterilization, and surgeries such as hysterectomies or orchiectomies lead to infertility, all of these intervenions meet the Texas definition of child abuse.  According to some published accounts, some families partaking of such medical inventions have been investigated by the Department of Child and Family Services. (This has also happened to families of children that refused medical or social transition.)

The bill also likely responds to Idaho’s H065, which criminalizes the provision of gender-affirming care, and takes what critics have held to be the unusually draconian measure of making it a felony for anyone who travels out of state to obtain it. And SB107 serves as a kind of preemptive strike against the Protecting Minors from Malpractice Act, a bill introduced into the US House of Representatives and Senate that would extend the period in which a former patient who regrets transition can sue a gender clinician to 30 years. 

By contrast, SB107 essentially indemnifies all providers of gender-affirming care, stripping them of any liability. The bill prohibits health care professionals, or anyone who works for a health care plan, from releasing a child’s medical records even if they’ve been subpoenaed, to a home state. The records must be withheld even from a parent, which may create an insurmountable obstacle to those suing medical providers for malpractice. Out-of-state warrants for parents who’ve taken their kids to California for care in violation of their home state laws or custody agreements, and for the gender clinicians who provide that care, would become unenforceable, with extradition of any such parties prohibited.  

The bill brazenly violates parts of the US Constitution, openly flouting Article 4, the Full Faith and Credit Clause of the founding document, which dictates that states should respect one another’s laws, public records, and court decisions, and should have the “same full faith and credit” in each state as they do in the states in which they originated. No state may enact laws that override those in another state for those state residents. According to Ernie Trakas, an attorney who represents several detransitioners, the bill will invite an endless stream of interstate lawsuits, further polarizing our already divided nation. “Bill 107, if passed,” he said, “is inviting a civil litigation war.”

“The slippery slope is retaliation by other states to reject California laws,” said Erin Friday, a California attorney who testified against the bill. Friday is the mother of a child who desisted  after experiencing rapid onset gender dysphoria and  identifying as transgender. “This will further break our country apart into two camps,” she said, “further placing our Republic in peril.”

SB107 also violates the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by all 50 states, which bars parents from absconding across state lines with children in order to avoid custody agreements. In the event of a custody dispute, in which one parent wishes to permit medical interventions and the other doesn’t, “The bill would prohibit the enforcement of an order based on another state's law authorizing a child to be removed from their parent or guardian based on that parent or guardian allowing their child to receive gender-affirming health care.” The bill can also “authorize a court to take temporary jurisdiction because a child has been unable to obtain gender-affirming health care.” And finally: “The bill would additionally prohibit a court from considering the taking or retention of a child from a person who has legal custody of the child, if the taking or retention was for obtaining gender-affirming health care or mental health care.”

The changes to UCCJEA, proposed by SB107, allow parents to violate custody agreements with no recourse provided the reason is gender medical interventions. How many parents might take advantage of this loophole to wriggle out of or defy such agreements? As Friday testified, “California cannot just wipe away an out-of-state agreement addressing which parent controls the medical health of the child.” Scariest of all, SB107 could be interpreted to allow courts to take custody of children once they reach California soil, as long as they are there in search of gender-affirming medical interventions like puberty blockers, cross-sex hormones and/or surgeries; they don't even need to be from states with bans. We've already seen families hurt by having kids removed from homes unwilling to medically or socially transition, or perceived that way by the courts; one of those children later committed suicide. 
Thus, SB107 is in conflict with parental rights established by the Supreme Court, which decided that “parents have a fundamental right under the Fourteenth Amendment to oversee the care, custody and control of a child.” This also violates due process, for a parent must be considered unfit before parental rights are usurped.

The bill promotes the idea that  it is better for a trans kid to be “liberated” from a family that won’t affirm; that is, in addition to destroying the category of male and female, the nuclear family must be destroyed, too. This language—temporary jurisdiction—is telling. It indicates that the bill’s writers believe short-term medical interventions are all anyone identifying as trans or struggling with gender dysphoria needs; there is no attention to what a child might need after being medicated, and no attention to the importance of family.

How could it be better for a child to undergo surgeries or intensive hormonal treatments without parental consent or knowledge or even without parents? How is it better for kids to be separated from one or both parents if those parents disagree with this medical path, especially when the only half-way decent prospective research we have is on kids who transition after serious and long-term mental health evaluation and who have parental support? Meanwhile, that study included only 55 participants and evaluated a very different population than those who seek treatment today; its findings aren’t applicable to today’s ever-growing cohort of kids with multiple mental health issues and no history of gender dysphoria.

It’s not better. We don’t have a single piece of research saying it’s better for kids to transition without parents than it is for them to not transition but keep their family intact. The justification for the former comes from a powerful myth that pediatric medical gender transition mitigates suicide, thus the unsubstantiated claim that it’s “life-saving care.” But The New York Times recently reported that “deaths by suicide, which are fortunately rare, though still higher than for the general Dutch population, “seem to occur during every stage of transitioning.'”

Section 16010.2 of California’s Welfare and Institutions Code promotes the suicide myth, too, describing gender-affirming care as “medically necessary health care.” It’s a claim dismantled by several European countries—and one American state.

Though there was almost no mainstream media coverage of it, Florida Medicaid released a bombshell in June: a nonpartisan evidence review of the literature around gender-affirming care—undertaken to determine what is medically necessary and thus should be paid for by the State. The conclusions:

“Available medical literature provides insufficient evidence that sex reassignment through medical intervention is a safe and effective treatment for gender dysphoria. Studies presenting the benefits to mental health, including those claiming that the services prevent suicide, are either low or very low quality and rely on unreliable methods such as surveys and retrospective analyses, both of which are cross-sectional and highly biased. Rather, the available evidence demonstrates that these treatments cause irreversible physical changes and side effects that can affect long-term health.”

“I cannot understand why my party—the alleged party of science—is not only ignoring that there is a paucity of evidence to support transition of minors, but decimating any and all safeguards in place to protect children, going so far as to impinge of parents’ rights to raise their children,” Friday wrote to me by email.

Evidence reviews, of course, don’t mean that some young people aren’t experiencing psychological relief through medical gender transition. But the entire practice, especially if engaged in without evaluation or parental participation, raises the question of adolescents’ ability to understand what they are consenting to. Are they aware that, for instance, puberty blockers are increasingly seen not as a pause button on puberty, giving time to explore, but an initial step in lifelong medicalization; in many studies, the number of young people who go on to cross-sex hormones after PBs is over 95%. Are they aware of the link between cross-sex hormones in pubescent bodies and infertility? As Corinna Cohn, a trans woman who believes that children and adolescents can’t understand what the life and body of an adult transsexual (as she calls herself) entails, wrote in a letter to her younger self: “Ten years from now you will experience a protracted period of grief as you come to understand that you’ll never be a parent to your own children and will probably never help raise anyone else’s.”

Chloe Cole, a 17-year-old detransitioned girl from California, testified against SB107. Medically transitioned under the affirmative model from ages 13 to 16, with parental consent, she now realized she and other girls were “fleeing from the uncomfortable feeling of becoming women,” she testified, noting: “I really didn’t understand the ramifications of any of the decisions I was making.” Those ramifications include: “I will never be able to breastfeed a child. I have blood clots in my urine. I am unable to fully empty my bladder. I do not yet know if I’m capable of carrying a child to full term.” She ends with: “Children cannot consent.”

“SB-107 is threatening children at their most vulnerable ages,” Cole wrote to me. “Scott Wiener is effectively delegitimizing the role of parents and the nuclear family while creating loopholes for protective legislation in other states. Many children are on the path to making the same mistakes I have.”

It’s true that we don’t know what percentage of young people being medically transitioned under the affirmative model detransition due to regret; we have no body that keeps track. But there seem to be more speaking out every day, and only the Republicans listen to them because they bolster their attempts to ban these interventions; Democrats ignore or suppress them. Until these legislatures turn their attention toward gathering information rather than passing extreme laws, we’re going to get nowhere.

Many of us can understand Democratic legislators wanting to distinguish themselves from the Republicans, especially in the post-Roe era. But the research on kids with gender dysphoria doesn’t justify California’s law. And yet the goal, according to Weiner, is to have this bill’s language replicated in other states, just as has been attempted with the SAFE Act, and already New York State is flirting with similar legislation.

Both the states promoting gender-affirming care and those curtailing it for young people are catering to the most radical wings of their ruling parties, and each piece of legislation seems more punitive than what it responds to. But SB107 is the most extreme and frightening proposed law yet. Politicians are listening to the most extreme viewpoints and then codifying them into laws. We must make them listen to the reasonable many instead of the radical few.

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