By Joanna Wuest
“Medical uncertainty” is no straightforward matter when it comes to LGBTQ+ health and civil rights. Take for instance the 11th Circuit Court of Appeals 2020 decision striking down a pair of municipal ordinances in Florida that had banned so-called “conversion therapy” for minors (contemporary psychology’s preferred nomenclature is “sexual orientation and gender identity change efforts”). In an enormous blow to the evidence-based notion that such change efforts are harmful — they are indeed responsible for much trauma and death — two Trump-appointed judges declared that the science of sexual orientation and gender identity was much too uncertain to justify the bans. Gesturing to the American Psychiatric Association’s (APA) renowned 1973 removal of homosexuality from its list of disorders, the judges explained that “it is not uncommon for professional organizations to do an about-face in response to new evidence or new attitudes.” Ergo, because the APA had changed its mind once fifty years ago, it may just as easily reverse itself again. According to this view, we may one day wake up to find that mental health professionals have reclassified queerness as a malady to be cured rather than a sense of self to be embraced and protected by law.
As I document in my new book, Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement (University of Chicago Press, 2023), this is just one example of how “uncertainty” arguments are levied against LGBTQ+ civil rights. Today, conservative attorneys and lawmakers wield uncertainty much as they do religious liberty, free speech, and right to privacy legal arguments. When states ban gender-affirming care (GAC) for minors, for instance, they cite Gonzales v. Carhart’s (2007) ruling that judges ought to defer to legislatures “where there is medical and scientific uncertainty.” This is despite the fact that nearly every major international medical and mental health association that works on gender identity care has widely accepted GAC for children and adolescents and opposes bans. Conversely, when legislatures find robust medical justifications to ban harmful procedures like sexual orientation and gender identity change efforts, conservative judges find similar reasons not to defer to legislatures.
Rather than indicating some principled commitment to scientific rigor and evidence-based medicine, these conservative concerns with “uncertainty” appear largely pretextual. They are excuses — and poorly devised ones at that — to withhold best practices for sexual and gender minority patients. As Born This Way and my ongoing work illustrate, many anti-LGBTQ+ forces borrow techniques from the leaders in tobacco, fossil fuels, and plastics manufacturing who have successfully deployed fringe researchers and physicians to undermine scientific expertise in public health and environmental regulatory policy. In fact, there is a disturbing overlap between these industrialists and the conservative legal organizations that combat LGBTQ+ rights today.
None of this is to say, of course, that matters of LGBTQ+ health and personhood are entirely the stuff of “objective science” or that clinical care of any kind involves total certainty. Many LGBTQ+ advocates and mental health professionals likely find some logical agreement with the 11th Circuit’s understanding that medical associations do change their positions in light of both novel evidence and shifting social prerogatives. After all, the APA’s 1973 demedicalization of homosexuality was spurred in part by evidence and ethical arguments advanced by clinical practitioners and queer people themselves. Moreover, sociologists of science and medicine have long implored that we see scientific discovery as a human-driven process, one that is never free from reigning social priorities and contemporary notions of what constitutes ethical treatment. Lastly, what great hubris undergirds the belief that medical professionals could ever have the ultimate say on sexual desire and gender self-perception, that discerning the “truth” of such things could be as easy as taking a patient’s temperature or identifying their blood type? Ironically, this fantasy of certainty is what animates both liberal and conservative positions on LGBTQ+ identity and rights. Each side argues that a definitive statement on this truth — that is, irrefutable proof that sexual orientation and gender identity are fixed (perhaps biologically so) or utterly malleable (possibly volitional) — should dictate who deserves to be a rights-bearing subject.
Of course, it makes pragmatic sense to invoke the many well-established medical reasons to affirm desire and identity, ones that policymakers should heed, even in the absence of total certainty. If the current medical record is certain of anything, it is that coercing an individual to abandon their sexual orientation or withholding gender-affirming care from dysphoric patients are both extremely harmful acts. However, this conceptualization of “harm” — that is, the medical concern for protecting against change efforts and providing gender-affirming care — is itself socially determined. An earlier generation of psychiatrists were troubled by the harm of an individual who failed to adapt to a cisgender-heterosexual society. As much as some of those harms were imaginary — religious right avatar Anita Bryant’s 1970s “Save Our Children” campaign against anti-discrimination laws was premised on gay predators and young innocent victims — many others were very real. Disaster befell those who lost their jobs, families, friends, and welfare or veteran benefits to anti-queer sentiment. What has changed then is not just the medical record, but rather our entire socio-political perspective on what constitutes harm and thus what medical services are ethical. So, LGBTQ+ rights advocates should use medical expertise as it suits their cause, but they should also make a broader philosophical case for rights and equality not least because today’s scientific evidence and medical opinion is informed by those principles and commitments.
While Born This Way recounts many of these legal clashes over uncertainty throughout LGBTQ+ civil rights history, it does not tell the whole story of uncertainty. Fortunately, the contributors to this symposium reveal uncertainty’s relevance to abortion access, the legality of gender-affirming care, intersex rights, and child custody disputes. Altogether, these short essays on uncertainty illustrate how sexual and gender minority health and rights are contested, denied, and even bolstered through claims concerning the strengths and limitations of medical expertise.
Joanna Wuest is an Assistant Professor of Politics at Mount Holyoke College and sociolegal scholar specializing in LGBTQ+ and reproductive rights, religion, and health.
