You Must Be Some Kind of Therapist

Swell AI Transcript: 138. Diana Lutfi FINAL.mp3
Diana Lutfi:
It's problematic when someone does receive gender affirming care and then absolutely regrets it. You can't reverse that. Medically speaking, emotionally speaking, you can only try. On the surgical front, most people would say, OK, that might be a little more drastic than, say, just receiving puberty blockers and cross-sex hormones. The oral arguments are literally more likely going to center around medical transitioning. as opposed to surgical transitioning. So like puberty blockers and cross-sex hormones, no one wants to touch the whole of surgery. And the reality is, if you're providing access to puberty blockers and then to cross-sex hormones, it doesn't even make sense to kind of then stop. So there's a lot of contradictions within the way that these groups are trying to go about arguing for why this should be permitted. It's painful, mostly because I don't even think that most minors would even understand that sort of full implication of what they're getting themselves into. I think that a lot of them are actually getting pressured by media or their peers and or their parents.

Stephanie Winn: You must be some kind of therapist. Today I have the pleasure of speaking with Diana Lutfi. She is a bioethics and legal scholar, a former healthcare administrator, and we're here today because she recently authored a Supreme Court amicus on behalf of the larger detransitioners community, which was submitted in the case of the United States of America versus Jonathan Skrmetti. I'm really glad to have Diana's legal expertise here with us to fill us in on the case of U.S. v. Scrimeti, what it means for the whole landscape of gender transition politics, and what this detransitioners amicus brief is about. So Diana, welcome. So great to have you.

Diana Lutfi: Thanks for having me. I'm extremely honored to be on your show.

Stephanie Winn: Yeah, well, I'm really glad you did this. So first of all, let's just kind of break down some terms for people who have maybe never heard of some of these things before. Can you tell people about what is this case that's currently before the Supreme Court, United States of America versus Jonathan Scarametti?

Diana Lutfi: Absolutely. So it's a US Supreme Court case, meaning that this case has risen to the highest level of review. And it was essentially brought on by a group originally wanting to challenge the state of Tennessee's gender affirming care prohibition. So, there was a family who wanted to originally transition their minor, and they were not able to, and so they ended up suing the state of Tennessee under, essentially for discriminating against them because they're not able to access these medical treatments that they claim other kids were also able to access. And so it rose all the way up the chain of courts, all the way to the US Supreme Court, where the case is really about whether or not the state of Tennessee discriminated against this family by essentially allowing within its laws, a whole prohibition on puberty blockers, cross-sex hormones, as well as surgery for any for for essentially gender affirming care. The larger implications of this case is that 26 states have very similar laws, which would be affected. And so if the Supreme Court rules one way or another, it would affect all 26 states.

Stephanie Winn: So there's really a lot at stake here because people have been trying to place various bans and restrictions on so-called gender affirming care at the state level, of course, being more successful in red states and blue states. But this case really determines whether those bans and restrictions will be considered lawful or unlawful.

Diana Lutfi: Yeah. Yeah, this is the precedent-setting case. It will also determine one of two things. One, within this sort of larger arraignment of LGBTQ rights, if there is a right to access gender-affirming care. So that's probably going to have to be written within the court. And then two, whether or not this, as a standard of care within the American pediatrics community will be challenged. If the Supreme Court says that there is a right to access this, that there is discrimination on its face with these state laws, then it's much, much harder to challenge the actual standard of care within that medical community.

Stephanie Winn: And when you say standards of care, I was just in an X space the other night talking about this. Before we started recording, you and I talked about the recent hearing in Oregon where I testified, Jamie Reed, Julia Mason, several other voices in the community also testified. And the situation in Oregon was basically about Should the state adopt the WPATH Standards of Care 8 as the official standards of care determining how gender transition is handled in the state? There's also, you know, built into that same law that they're discussing like how to implement the law. There's stuff about like requiring insurance coverage and all this kind of stuff, right? So I testified, all these other people testified. It's a thing going on in Oregon right now. And I was in this X space with a woman who goes by Oregon Citizen and Jamie Reed and Julie Mason and, you know, some other people talking about this. And I found myself saying, you know, I'm no legal expert. That's that's where you come in. Right. But I think part of the issue is that there's no one else doing what WPATH is doing. I mean, I don't think anyone should be doing what WPATH is doing. But as far as I know, they're the only group trying to present themselves like a legitimate medical organization, trying to come up with a so-called standard of care. And so when it comes to a state law like the one in Oregon that was recently passed where this hearing was about like how to implement the law. And they're like, well, so what standards is the state just going to come up with its own standards out of thin air? Or are they going to look to some organization like WPATH that's presenting itself falsely like a legitimate, you know. a legitimate group and say, and WPATH is saying, well, this is the standard. Everyone should follow it, right? And I'm saying, well, I just don't see anyone else saying that there should be some other standard except for those of us who are like, this is all complete bullshit. you know, the people like me who are like, the standard should be psychotherapy. And by the way, we need we really need to change the policies about the so-called conversion therapy, so-called sexual orientation and gender identity change efforts and therapy, because that is getting in the way of therapy. So. That's a little bit of a tangent, but it's this idea, this idea of standards of care is really problematic when it comes to gender stuff, because the term implies that it's evidence based. And it's not, right? They're literally covering up evidence, right? This has been confirmed. And now I lost my train of thought. But you said standard of care, and so I decided to go on that tangent.

Diana Lutfi: Yeah, that's OK. I can add. So there's a lot of politics around standard of care, which is very much in almost any area of health care. If you're an adult, it has so much more to do with malpractice standards and whether or not someone had malpractice. So that's actually a legal term where you kind of present generally acceptable standards, and then maybe somebody disagrees with that in court. It's a little more nuanced in the case of pediatrics. So pediatrics heavily, heavily relies on something that they consider standard of care. So standard of care is really just anything that they say is the standard that should be followed by all pediatricians. We kind of see this from vaccine mandates to the CDC schedule, all the way to chemotherapy, all the way to gender-affirming care. So it's not really any one group that's setting it. I think WPATH has a lot of political power by saying and publishing that particular standard, and every one of these organizations are able to kind of reference that. But that's also not to say that if they weren't in existence that the AAP wouldn't also espouse this, right? And so there's a lot of politics behind standards of care, mostly because there is a lot of disagreements around what should happen when someone comes in and questions their gender identity

Stephanie Winn: But if it wasn't so politicized, at least we could at least we could look to evidence. Right. And and we could you know, there are there are systematic ways of rating evidence.

Diana Lutfi: And the problem with research integrity, it's it's it's been hijacked. A lot of people don't. Like, people who understand research, any sort of researcher in the field understands that there's a level of research politics that very much occurs. And as much as we really do want evidence-based medicine, there's a lot of things that we just don't know. And so people come up with, perhaps, standards that are not fully evidence-based. It's based on a sort of metric of what they know from that time. And in those cases, you can absolutely disagree. So it's very, very different than if you have a particular bowel abscess that needs to be removed because this is going to completely infect your body. That metric looks very different. And you also well know that when you connect that to psychology, there's all sorts of things that go in. into that area and so. Yeah. I can tell you're passionate about standards of care and all that.

Stephanie Winn: Well, the thing that upsets me as a mental health professional, I mean, I saw some video the other day of this kind of unhinged woman like angrily lecturing. I think it might have been like Sidewalk Steve, who I've had on the show. I think she was lecturing him or maybe someone he was out on the streets talking to people with about how And I don't know what her background is professionally. I doubt it's in my field or the medical field. But she was taking this stand angrily with all the certainty that this is what these people need. It's the only way to deal with their condition. And I mean, we've all seen a million versions of that, right? It's just the one freshest in my head. And what really gets me, I'm like, these are the same people. Sometimes, I don't know about this particular lady, but a lot of these are the same people. who will try to silence and de-platform and de-license people like me, who have a professional credential to stand on, who are saying, actually, no, no, it's not the only or the best treatment. It's actually not a treatment at all. And we do have ways of dealing with this psychologically. And it's like, so they claim that this should be the standard that these physical alterations are how you should treat this mental condition. And there are a lot of mental health professionals who don't agree with that. Yeah, but they don't want us to have a voice.

Diana Lutfi: It's a horrible power game, but I always think that they understand that the more you speak up, the more powerful and the more dangerous it would be. And so the easiest way to essentially get control over standards of care is the silenced dissenters. And that's sad, but that's kind of the unfortunate reality, right? We see that even with this amicus and with this court case, the groups that supported this family, the ACLU, their amicus support ranges all the way from every major medical association. the American Psychological Association, as well as the American Bar Association. So every group, every professional society, every national professional society has essentially come together and said, we're in support. We believe that this should be the standard. And, you know, there might be other people, there might be even more people who disagree. But so long as they feel like they don't have a voice, and they feel like they can't disagree, there's never going to be a conversation unless they speak up. And so I'm grateful that you're speaking up.

Stephanie Winn: Well, great job bringing it back to the main point, what we're here to talk about. So can you explain the concept of an amicus brief and how, like you're saying, basically these different special interest groups weigh in on a Supreme Court case, and then eventually how that leads us to your brief?

Diana Lutfi: Yeah, absolutely. So an amicus brief or an amicus curiae basically just means friend of the court. These briefs are essentially written by non-parties, so someone who's not necessarily directly involved but might have much broader public interest in the case in terms of how the case might be decided would affect them one way or another. A lot of times amicus briefs are actually written much more by public policy organizations and certain sorts of groups that just want to kind of add their opinion to almost every single case of interest, less often they're written by a group of individuals. But much more powerfully when it comes to any sort of issue that has a direct impact on the individual and individual rights, many groups might essentially strategize by forming coalitions and forming larger networks, sometimes with hundreds of people signing on to a single amicus saying that this would essentially affect them and affect their rights. I haven't seen that with our group, and that's essentially why I ended up authoring this amicus to talk about how these rights are essentially also affecting our community.

Stephanie Winn: All right, so I think you were saying that you had several people reach out to you about the US versus Scarametti case before you realized, well, I guess I got my work cut out for me. I got to write this brief now.

Diana Lutfi: Yeah, yeah. So I guess I first got connected to this community because I, at work, met this one doctor who asked me if I could help some of the organizations that he's supporting on any of their sort of litigation strategies. And I was here going like, I can certainly try. I don't necessarily know if I can persuade or convince people. Right. And that got me connected to our mutual friend Ari. And that led me to being invited to many, many, many meetings, as well as mostly around like professionals and doctors who are mostly very much kind of concerned about their license. And that's the sort of space that I came from. But there is a meeting in particular, where Ari wanted me to join in to make his call. And I was here going like, I really don't need to. But even before that, he connected me with someone who wanted to just bounce off all of his ideas about like this one case, U.S. v. Scarametti. And then before that, my class, my constitutional law class that I attended, I had a professor who asked me specifically, he asked broadly in class about this issue, and then he looked at me and directed that question towards me in terms of what strategy should be employed. for either side, but mostly he was concerned about the side that he disagreed with, aka our side. And I, in my response, said, I think we kind of have to look at biology and research to really address this issue. And it got completely booed. I nearly got in trouble for even saying that. So it stuck to my head. And when I was asked about it again by people who didn't even know that this had happened to me in class, I just felt like, wow, seems like I'm being pulled to really do this work to write a very unique legal perspective, legal bioethics perspective on this case and to write it in the way that would actually honor everyone's perspective and provide a unique insight.

Stephanie Winn: Are you currently in law school?

Diana Lutfi: No, I've graduated. This case, the reason why I mentioned law school is because this case had been something that even faculty members at our law school was watching, right? They were very much concerned, like, mostly because this would shape the trajectory of a constitutional legal issue that not only affects like people's rights, but would affect future laws in terms of how that would be created. And so Even though this was probably towards my final year, almost final semester, this case was essentially not only talked about and discussed in class, but it was hinted briefly in terms of what that would mean, what these groups what the groups that he disagreed with, he even kind of mentioned ADF by name and groups like them, what their sort of best legal strategy would be. And I Yeah, like, I ended up answering, I ended up getting called out for answering the way I did. And I and then after that, like it, you know, both my classmates kept asking me to basically talk more about it. And then after graduating law school, I had a whole bunch of people like, pretty much anyone that I met through Ari, who paid attention to this case. for some reason, think that I should have an opinion or another about it. And that's how I really got involved. In addition, I think Ari really, he brought me on to an amicus call with Mitra. And it was great, because I saw her explain the case to other folks that were very not super familiar with it. But that also made me realize that I They very much disagreed with the other attorneys and how they were going to proceed with this particular issue and how they saw even the Bostock case. So Bostock v. Clayton County is another Supreme Court case that was decided. It gave essentially an avenue for the protection of LGBTQ rights under sex-based discrimination. So it classified the whole group under sex, under equal protection, if that makes sense. I can explain what these categories are. And my major disagreement with them was I actually don't think that Bostock was incorrectly decided. I actually think that expanding rights and expanding access to people is great and necessary and beautiful. Though I do think that there is something very, very troubling when a state can't protect its minors, and it cannot say and disagree with the medical community overall. And that's really where I draw that line.

Stephanie Winn: We're going to get into the details of what is in your amicus brief in a moment, but I'm noticing that you have a lot in common with some of the other guests that I interview on this podcast because I interview people who are currently in grad school or had difficulties while they were in grad school studying to be a therapist or studying to be a doctor. And it sounds like you're kind of right in their league, but you're like the law school version where you're a little troublemaker amongst all your work professors.

Diana Lutfi: I graduated. I definitely was not. I feel like most people do remember me, but they remember me for the topics that I stood up for as opposed to who I was. I think people almost remember dissenting individuals a lot more. It's not even like I thought I gave a pretty non-controversial answer. I thought that was essentially what was expected of me. I got heckled by the entire class for that. It was, I mean, I still graduated and I fortunately still finish. But yeah, I was popular in the sense of there were classmates that needed me to speak up. And then the majority of the class really wanted me to not be in law school in a way. They've really tried. I got emails from the academic dean saying I was making some students feel uncomfortable. Oh, wow.

Stephanie Winn: Yeah. Wow. OK, well, let's get into all this trouble that you've made. So you created, OK, let's see. This is titled. Brief of Amici Curieux, the larger detransitioners community, including public officials, health care providers, and researchers in support of respondents. I think I copied a little too much. I copied and pasted stuff. I'm seeing address, an address in front of me. Sorry, what's the actual title?

Diana Lutfi: That is the title. So it's an amicus brief on behalf of the larger detransitioner community, and I kind of define that by including both the professional world as well as any grassroots level organization and individuals that have very much been a part of this, right? I really do think it's kind of crazy because I've always seen it as individuals shape state-level policy, and they should probably have the most say in terms of what ends up happening in the courts.

Stephanie Winn: So let's go through your outline. So basically, your table of contents is sort of like a bullet point list of the points that you're trying to make with this. So maybe I could just kind of read those headings and you could expand on those points. Absolutely. OK, great. So one, statewide regulation, prohibition and discrimination in health care treatment access has historically been permitted by this court. A, states have historically governed health care, especially treatment access. B, health care is inherently discriminatory based on sex for good medical reasons.

Diana Lutfi: So that section of the brief really does go into this discussion of the role of state laws in respect to health care and good health care in particular. There is all sorts of things going on within health care, but I think everyone who works in health care quality can very much agree that there are inherent differences that have to be accounted, no matter what you call them, right? If you want to call it natal sex versus trans, you still have to account for those differences. And so the law with regards to health care has actually been a lot more lazy affair. and a lot more left up to the states. And so it would be kind of crazy to have this case not really look at that particular issue of health care being in the realm of states and state legislation and state rights in that space. And states themselves, actually, The second aspect is healthcare being inherently discriminatory. It is inherently discriminatory. If you're treating any sort of patient, you absolutely have to understand, like, reference ranges.

Stephanie Winn: Like, so like, I don't know if you've ever gotten blood work where there's like a certain thing on your blood work that says if African-American, meaning like if you have African-American heritage, then that's going to affect what the standard range should be on like some marker on your blood work. Like similarly, I just had my progesterone, estradiol, and testosterone, and DHEA all evaluated relative to my age and sex. Like how crazy would it be if they use the reference range for a woman half or twice my age or for a male. So when we talk about discrimination, you're talking about really just recognizing that human beings are different depending on things like age and sex and race. Well, sometimes race when it comes to certain things.

Diana Lutfi: Yeah. Yeah. And it has nothing to do with the word discrimination. I use that word mostly because the way that they're using The way that the other side is using discrimination very much means this differentiation between groups. What they're not necessarily wanting for us to say is that this actually happens all the time in health care, no matter who and what you are. it's bound to happen. People have categories and they are treated differently per those categories, which is exactly what they're trying to fight against, right? They don't want those categories. The reason why this is super duper powerful is because according to their logic, that means not only should everyone be able to access gender-affirming care, but everyone should be able to freely transition regardless of any sort of diagnosis. Or even if they have a diagnosis of gender dysphoria, that means they're kind of free to do whatever with that. And by and large, those definitions, that's not how health care typically works. There is a limit to autonomy and the recommended treatment course. You are absolutely free to accept or to reject a particular treatment. you know, demanding certain sorts of things when that can be extremely harmful to the individual. That, like, that's actually not health care. Like, people discriminate all the time for good medical reasons. And so that's the whole point of that section.

Stephanie Winn: Well, and as women, we are inherently at a certain disadvantage just by the fact that for a long time, only males were used in research. because they are not affected by the same kind of monthly hormonal fluctuations and less likely to have… Well, not likely to have some long-term study interrupted by something like pregnancy. And so they're like, okay, well, males are easier to study, so let's just study males. Well, OK, so now there's less research on how certain things affect us as females, but we're we're different. And so the signs of heart attack are different in us. You know, when a crash test dummies are modeled based on six foot tall males instead of five foot four females, that's going to affect women's survival rates in car accidents. And there's just all kinds of stuff where it's so important that. That medical research be done respective to the things that do make us biologically different from each other.

Diana Lutfi: Absolutely. And our federal government actually agrees with that. So that's the irony of all of this is it's actually helping people understand that the sort of contradictions that both the DOJ might have with like other health care agencies, other federally funded health care agencies that are saying that we should study those biological differences within research if we need. I mean, in order to improve health care, we actually do have to recognize those biological distinctions.

Stephanie Winn: Yeah. Did you see, by the way, I think it was I saw a tweet from Stats for Gender. There's a new study that I've been meaning to look at that I think the incidence of testicular cancer is 26 times higher, like 2,600%, right? Higher in males who have been taking cross-sex hormones. Do you see about that? Yeah. Yeah, so I mean, like, who has a testicle? Males do, right? Who has a prostate? Who has a cervix, right? And so this effort to, you know, be politically correct with language like cervix havers, as if we women really enjoy being called that, You know, it confuses people who are who have intellectual disabilities or who are uneducated. And we know that, you know, some of these people going down the so-called gender affirming care pipeline. They quite naive about their own bodies, you know, there are stories of women on testosterone not knowing they were pregnant until they gave birth. So we're not just dealing with the most intelligent, best educated people who know exactly whether or not they are a cervix haver or a prostate haver or like we're dealing with a public health that affects people of all walks of life.

Diana Lutfi: Yeah. Absolutely. Yeah. That I'm actually pretty certain that data is cited. Not in the next section, but the section after that.

Stephanie Winn: Oh, good. OK, well, let's get to it. Can we move on to section 2? Or was there anything more to say about section 1? OK. So section 2, the inability to receive pediatric gender-affirming care within a state is not sex-based discrimination as applied in Bostock. And then there are two subsections. Should I go through those individually?

Diana Lutfi: No, I think I can very much explain. I think to really understand why this case very much centers around Bostock is because Bostock really opened up the category of sex discrimination to sexual orientation. So Bostock v. Clayton County is a consolidation of cases of workplace discrimination. There was one case where someone was both cross-dressing and identifying as a female when she was actually male. She got fired, and her being fired led to a couple of lawsuits, mostly because that she wanted to identify as she. And it didn't affect her position. It didn't affect what she did. Her employer was just not comfortable with her not identifying as her biological sex. So we have that to essentially talk about trans in that space, right? There is also another story about a same-sex couple. They were also essentially fired for being gay, in essence. And so, Bostock very much looked under employment discrimination, whether or not that is allowed, whether or not there was discrimination on any sort of basis. And Justice Gorsuch actually penned this opinion saying, yes, there is discrimination, and that discrimination is on the basis of sex. And so a lot of people now kind of wonder, well, Bostock must not be correctly decided, because if it was correctly decided, we would not be kind of opening up this category to to all sexual orientation and all gender identities because that's really the question that the court is faced with, whether or not they should now expand sex discrimination to every category of LGBTQ and their rights. And so the reason why I wrote this particular section is in response to what Bostock did and didn't do. Bostock was not about minors' pediatric care. Bostock had nothing to do with access to healthcare treatment. Bostock had more to do with actual sex-based discrimination, right? As opposed to this, which is not sex-based discrimination. It has so much more to do with with minors and whether or not they even fully understand what's going on when they are confused about their gender, when they are questioning their gender. And so it very much encompasses that sort of distinction. I wrote that to distinguish Bostock from everybody else within our our group that may include our wonderful gay, lesbian, and some still questioning folks.

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Diana Lutfi: So like, yeah, that the major argument was presented is if other minors can access these treatments, then trans minors should be allowed to also access these treatments. The problem there is it's not even completely true.

Stephanie Winn: Right. So when you say minors, are you talking about, like, puberty blockers for treatment of precocious puberty versus puberty blockers in children who would normally undergo HIV?

Diana Lutfi: Yep. Or cross-sex hormones for treatment of cancers versus cross-sex hormones for treatment of gender dysphoria. And so that's been – that was essentially what the case presented on search. Searcher is essentially the asking of the Supreme Court to make a final ruling on the matter. That was the question that was like the biggest key point that the other group has kind of brought up. that they're discriminating specifically for trans minors because Tennessee had exceptions for precocious puberty and they had exceptions for what would be quote unquote, you know, treatment, therapeutic treatment for other sorts of illness. Right.

Stephanie Winn: Heaven forbid, people with medical conditions should get help for their medical conditions, while people without medical conditions should not have doctors create medical conditions that didn't exist in them before.

Diana Lutfi: So the interesting part about these sorts of disagreements is even with precocious puberty, some states have kind of done, did a whole outright ban on puberty walkers. And that's OK. That's essentially the state's determination that the evidence was compelling enough to say that maybe this is not the best case scenario for all kids. In the state of Tennessee, then allowing those exemptions, right, those exceptions in medical care is is them essentially giving doctors some more options in terms of we're going to only limit it to gender dysphoria. We're not even going to touch. these other spaces. So we're actually making this less restrictive than not. But they use that sort of less restrictive means to essentially then challenge and say that this is discrimination on its face.

Stephanie Winn: I just want to point out for those who aren't familiar with these things as you and I in our respective ways have both been inundated with the details of the gender world for a while. But for those who are like, what are they talking about? Thank you for still listening, by the way, if you're those people because we are really in the weeds here. When you say it's okay for a state to decide, no, we don't allow puberty blockers, period, puberty blockers have problems associated with them. Even when a child has precocious puberty, it's not without Like, you're still looking at, you know, in that case, in states where it is legal, the doctor is helping the family make a difficult decision between paths with different outcomes, some of which can be known, but some of which cannot be known. And, you know, they're weighing the risks of entering puberty a few years ahead of their peers. you know, potentially differences in height, differences in brain maturation, stuff like that, with the damage the puberty blockers will do in order to keep them on a more normal developmental trajectory otherwise, which includes, again, impact on bone, impact on brain, and stuff like this. And this is in children with whom, you know, there is a medical trade-off. So I just want to clarify that point for people who aren't familiar with this. But, you know, I think the point you're making here in point two really kind of circles back to point one, that healthcare is discriminatory. Yes, people with cancer can receive cancer treatment. People without cancer are not allowed. You know, we're not just going to prescribe controlled substances with a lot of drawbacks to anyone who wants them.

Diana Lutfi: I do think that there is a tension between essentially access and protection, right? And that tension very much kind of exists on a state-by-state basis. It's kind of just interesting that But again, a state that is trying to very much limit what it's prohibiting is the state that is essentially getting flagged for discrimination, mostly because it's actually making a lot of exceptions for its doctors, and they're essentially saying that, well, because they're making those exceptions, that's discrimination against a whole group of individuals. And here's the crazy part. Even the APA would essentially acknowledge that not everyone with gender dysphoria should go through gender-affirming care. And not everyone who wants to consider themselves trans, you know, would want gender-affirming care. On top of that, you might not want to consider yourself trans and you can still go through gender-affirming care. And so it like the model very much seems a lot closer to like plastic reconstructive surgery as opposed to like actual medical treatment. But the problem there is they are then saying, well, because plastic surgery is not It's not even permitted if you're under 18. We have to make this the standard of care in order for minors to be able to access it, right? And so that's kind of a tactic on the medical front to make that a possibility. I would say it's clever, but it's also really damaging, mostly because it It's problematic when someone does receive gender affirming care and then absolutely regrets it, right? You can't reverse that. Medically speaking, emotionally speaking, you can only try. Like, some people have And even to this end, that's also why the ACLU is not wanting to talk about surgeries. Because on the surgical front, most people would say, OK, that might be a little more drastic than, say, just receiving puberty blockers and cross-sex hormones. And so the oral arguments are literally more likely going center around medical transitioning, as opposed to surgical transitioning. So like, puberty blockers and cross-sex hormones mostly because no one wants to touch the whole of surgery. The reality is if you're providing access to puberty blockers and then to cross-sex hormones, it doesn't even make sense to kind of then stop, right? Unless you're completely blocking. So there's a lot of contradictions within the way that these groups are trying to go about arguing for why this should be permitted and why this should be excessive. It's kind of, it's painful mostly because I don't even think that most minors would even understand that sort of full implication of what they're getting themselves into. I think that a lot of them are actually getting pressured both by media and or their peers and or their parents. If you have a parent that is not just in full support, but it seems like, you know, this is something that they want you to do. it becomes less and less of your choice and much more of a someone really wants me to come out and fully medically transition. And nobody can stop me from doing that. And that's scary. Literally, if we're talking about the state's role in protecting, that would be the rightful ability of the state to say no. you know, we actually think this is going to harm you and we're not going to let you access that.

Stephanie Winn: I don't meet those families, of course, where the parent is gung-ho about it. I meet the families where the parent is concerned and the kid is gung-ho and even then they're sort of a victim to their own immature thought process. And that's one of the main sort of gender critical lines of reasoning, right, is that it's not kind or compassionate in any way to allow someone to make life-altering decisions at that early age. And I think there's a real sort of lack of thought on the part of people who believe in this nonsense to really think back to what you wanted when you were that age and what your life would be like if you had to live today with the permanent consequences of whatever you thought you wanted. when you were that age. It's a lot of power for a kid to have.

Diana Lutfi: But that's why it's so appealing, right? Because it's also the only area of health care that they get to actually choose in. And that maybe is a glimpse of a larger health care problem. And I can go on and on about that. But it's kind of interesting because I'm going to just say, I think that it's a very complicated area, mostly because I think that it's hypocritical of them to just say that this is literally the only area that we're going to allow a kid to choose, and there's no other area. I got into this work mostly because I was concerned that a 17-year-old could not refuse chemo, and that chemo ended up killing her. That was essentially the inspiration for my thesis research at Berkeley, which looked at the permissibility of coercion in pediatrics. Now the sort of inverse of that is now the state has no right to essentially block access, which is crazy. In my head, I think there is something really, really wrong with how our culture essentially stresses, like healthcare, it stresses that treatment, more treatment, more procedures is better. And how that very much also permeates, like you have the right to essentially bypass your parents and bypass like other medical individuals to essentially gain access, but you might not have the right to say no.

Stephanie Winn: There was a law, I can't remember if it was HB 2002 or the other one. I've testified in Oregon a few times, but there's one I testified against that was both about so-called gender affirming care and about so-called reproductive health. And this law, I'm going to be fuzzy on the details, but one of my many objections to it, I objected to more than just the gender affirming part because they wanted to make it possible for, I believe, if I recall correctly, and you know, please correct me if I'm wrong in the in the YouTube comments, kindly, but wanted to make it possible for adolescents of any age to get abortion services without their parents involvement. And I remember just to me, it was just so obvious on its face who that benefits. It doesn't benefit the youth. It benefits sex traffickers. It benefits people who are sexually trafficking minors. That's who that law serves. And it's so disturbing to me to think that, you know, if a 12-year-old is pregnant, and shows up at a Planned Parenthood saying, please don't tell my parents, that they would essentially be in cahoots with whoever the hell got her pregnant and whatever the hell they're up to. I'm sure in a minority of cases that You know, maybe some of these youth come from abusive homes, but then there's mandated reporting laws that cover that. If we have concerns about abuse, the time that you express the concern about the abuse is not when this kid is vulnerable and in need over a pregnancy, unless that pregnancy is from a member of the household. Then we have another problem on our hands, of course, you know. So, I mean, so that is a way that, you know, some of this, you know, gender stuff in minors and the argument about the autonomy that these minors should supposedly have does extend to other areas of specifically reproductive health care, which really scares me because you know that that just paves the way for abuse. I mean, all of this is abuse. And I've heard detransitioners say, and with good reason, that any so-called gender-affirming care in minors should be considered sexual abuse.

Diana Lutfi: I mean, there's a lot of stuff in healthcare that I would… I will spare you my sort of thoughts on that, but I think it very much kind of peaks at a whole area of like there are lots of things happening that are kind of beyond their control. And it's attractive to say that they finally have the ability to want something. And that's kind of the crazy part, because we've also taken that. We've taken pediatrics even away from parents. It was traditionally in the past completely controlled by doctors and whatever sort of care team and whatever that sort of standard of care is. And I don't think that they should be punished. People who are wanting to have much more of an open conversation with minors But I do think that that's really where the state has to also be able to say, we actually think that something is dangerous for them. And we are going to exercise our authority to limit you, the provider, from being able to recommend and or push that. And that's what people are not recognizing. This tension is between the health care provider and the state much more broadly than the actual patient that's involved, mostly because, again, there's no other area in health care. You can't go in and ask your doctor for antibiotics as much as we think that we could do in today's culture. Some people will agree to give you antibiotics, and some might not. What we're essentially saying is the state also has a voice in that ability to say whether or not its healthcare providers are essentially harming. And at this point, I really do think that because of the way that our system is set up, that's the only sort of avenue towards preventing very massive levels of abuse. in this arena. I think what the other side is definitely saying is, well, let's put stricter informed consent provisions, or let's even allow the parents to agree or disagree. The problem with all of that is Essentially, unless it's applied on a state level, it's not uniform. And because of how crazy some of these treatments and some of the side effects are, states have been regulating health care and treatment access. since its inception. The fact that we can't now allow them to essentially regulate it on this basis is why I think it's problematic.

Stephanie Winn: And here's my rebuttal to those, let's just have better informed consent practices argument. If you had an informed consent document that actually gave an accurate picture of what that person was potentially exposing themselves to, it would double as a test of sanity, where if you say, yeah, I still want to go through with this after reading this list, okay, you're insane. You're not in any capacity to be making decisions. The other thing about it is to have that for minors or, you know, people under the age of 25 really just reflects a lack of understanding of developmental psychology and what people are capable of. But let's move on to points 3, 4, and 5. So going all the way through your outline, and this time I'll just read the sub A, B, and C, okay? Section 3. State prohibition on gender-affirming care does not infringe on anyone's rights. A. State prohibition does not violate the minor's right to privacy. B. State prohibition does not violate the minor's right to bodily integrity. C. Receiving medical treatment by demand is not a legal right.

Diana Lutfi: Yeah, so I think I really wanted to expand the whole point of why this should be almost a slam dunk Supreme Court case, mostly because the court has to essentially see whether or not it really violates anyone's rights to have these prohibitions. And the strongest argument and point that I can make is that it really doesn't violate anyone's rights. to have prohibitions. We have that historically for healthcare. We have that literally even within research. We have that. And so The argument that this would violate a right to privacy, when no such minor's right to privacy very much exists, is also pretty absurd. The other sort of element is there is a right towards bodily integrity that is actually much more sacredly protected by the court than the right to autonomy, which a lot of these other groups would say it's the right to access. or demand certain sorts of medical interventions as opposed to the right to refuse. And so I really needed to help people understand with clarity that distinction, that there is a right to say no that permeates no matter who you are and no matter what stage of life you're in, as opposed to the right to tell your doctor that I need XYZ medications for me because if not, I'm going to commit suicide, right?

Stephanie Winn: Yeah, and threatening suicide is not a valid way of getting anything else that a person wants. And in this, you know, other episodes of this podcast, we talk about the other implications of the question of, you know, using threats of suicide as a form of coercion. Was there anything more on point three before we move on to point four?

Diana Lutfi: No, I really do think that this is essentially where I feel like there is a bridge between this and health freedom. exists, there is a very, very distinct line. And I really wrote it because I've been in favor of minors being able to kind of express their sort of disagreements, but I'm definitely not in favor of like someone who should know better saying that this is what they should be doing. And like we've seen this and some of the detransitioners even among the adult detransitioners saying that because this is essentially what their doctor is pushing and recommending, they went through with it. And there is no way of essentially stopping that except on a statewide level by saying, no, you should probably not do that.

Stephanie Winn: So obnoxious, the misuse of authority. Because I hear so many stories from parents of Basically, 13 to 30-year-olds is the range, but a lot of late teens, early 20s. And for example, I recall hearing a story, parents of a young woman in her 20s whose therapist was a gender-affirming therapist who said, basically, regarding your gender dysphoria, there's nothing more I can do for you. And here are some referrals to surgeons. Like to think about the weight of your authority as a mental health professional when you have a patient who you don't know what that patient's transference is. They definitely look up to you. They see you as a respected source of wisdom. Maybe this is a patient who's struggling to make it through a single semester in college and they're looking at you going, wow, she has a master's degree, wow, she's so smart, you know? Like thinking about how much power you have. It's so funny that the people who think this way are all obsessed with power and privilege and oppression and stuff like that because they have so much power. to use their own authority that they have with the patient to say, this is the standard of care, or there's nothing more I can do for you psychologically, that the next step is to proceed, or no, I don't think you have any mental health comorbidities that make this contraindicated, or whatever that professional opinion is.

Diana Lutfi: It's like, yeah. And it's even crazier when, and this is a case that really does make me mad, when They can't even detransition because they're psychologists, essentially, and their psychiatry team would tell them, you can't, that this is your identity now, and you have to accept this new identity, that this is your permanent identity. It's psychologically damaging, and to also have that in their medical notes is, like, for me, I think this is very much a form of medical abuse. It permeates beyond. Yeah. I'm at a loss for words mostly because I know that the sort of damage that that could have on the individual's psyche and them even wanting to figure out, I made a big mistake. I want to go back. people in our medical community telling them, you can't, you absolutely can't. You can, you can, you can go into the opposite sex and you can try to become that, but you can't go back.

Stephanie Winn: Well, that goes into one of your I'm not sure if it's like it's part of section four at the bottom. It says the consequences of medically transitioning are ongoing and permanent. It is a one way ticket. Let's go through section four. So states have a compelling interest in protecting minors futures and prohibiting pediatric gender affirming care is substantially related to that interest. A, states are entitled to intervene to protect minors' best interests. B, there's a lack of medical consensus about whether pediatric gender-affirming care is in the best interests of minors experiencing gender dysphoria. C, there is no evidence demonstrating suicides are caused by failure to receive pediatric gender-affirming care. And then again, that other note, the consequences are ongoing and permanent.

Diana Lutfi: Yep. Yeah. So this whole section really does go into the sort of research politics around this issue and why it's, I mean, there is a compelling interest that the state has to not only protect minors, but to also look at the research and evaluate whether or not these other claims that are being made have any sort of substantial value. right? And they don't. And that's kind of the problem. We see this sort of inverse occurring. We see people who've transitioned that might actually be led into committing suicide. We know stories of parents that have lost their child. Like, with suicide because they were told that they needed to transition and the child goes through that and now cannot figure out how to even go back. And it drove them into this level of like beyond mental suffering. So we know those stories exist, but the sort of opposite story of What the media and what these doctors would say is that if your kid doesn't transition, they'll commit suicide. I think the sort of most insightful thing that I've kind of heard is like, I want to see that. I don't want to see them commit suicide, but I want to know how much claim they can actually make to support that statement, whether these minors are essentially that driven to transition. You might have a lot more to say on that, but statistically and what the research essentially suggests is that there's a lack of good data. There's more good data suggesting the opposite is true, that there's psychological impacts And there's psychological effects that happen once that transition process occurs. And that's very much ongoing and not easily reversed. You can try very hard, but even these hormones are still within their bodies. Some of them have lost their voice. Some of them have lost certain sensations that they should be able to experience at their age. it's beyond tragic. And that's why – and these effects are physically seen. You can see that by talking to a detransitioner. You can see that when you hear some of their testimonies. You can see that. Like, You can't then say, like, this is not a real side effect. Like, there are people who are living proof that this is an issue.

Stephanie Winn: I've addressed the suicide topic here many times, and just to summarize some of my main points on this, we know, in general, that there are certain things that are considered risk factors and protective factors for suicide. Chronic pain, disability, poverty, and loneliness are huge risk factors. Gender-affirming care, as it's called, creates all those things. So it creates chronic pain and disability. It creates iatrogenic harm. Poverty, I think a lot of people are on track to become impoverished because they're spending critical developmental years thinking of themselves as fragile and focusing on identity and spending all their money on these hormones and surgeries that are, again, rendering them probably unable to work mentally and or physically, okay? And then loneliness, transitioning and detransitioning, you know, any of these bodily changes greatly reduce a person's dating pool, they alter their sexual functioning, and they change their ability to have children in a family. You know, having loved ones that you're responsible for is a huge protective factor against suicide, and we're taking that away from people. So it's not hard, right, to just kind of put two and two together, looking at information that we had from before the current sort of skyrocketing numbers of trans-identified people, and just look at what we know about human nature, mental health, and suicide risk, and Yeah, it's like duh, right? And even if there were any more compelling evidence to the claim, oh, these people will kill themselves if they don't get gender affirming hair. OK, that is a belief. That is a mental belief. That is a behavioral health problem. And that I think we would have to hold responsible anyone who perpetuated such contagious ideas, anyone who contributed to a young person's understanding that this is an appropriate length to go to or that it's, you know, just the whole set of beliefs around the idea that I need this and I can't live without it is nothing more than a set of beliefs. So I think we need to hold certain individuals and cultural phenomena responsible for that rather than taking it as a statement of fact. But let's move on because we only have so much time and I really want to let you at least comment on point number five. Point five, statewide prohibition on pediatric gender-affirming care ultimately preserves the full autonomy of minors to make medical decisions that they can truly live with. A, informed consent is not possible in pediatric gender-affirming care. B, minors need to experience natural puberty in order to make identity decisions they can fully appreciate. And C, prohibiting pediatric gender-affirming care is the only means of truly safeguarding minors against the susceptibility of social pressure and possibility of coerced medical transitions.

Diana Lutfi: Excellent points, by the way. Yeah. So I really wanted people to understand that in this whole area of autonomy, it's like, again, if you kind of go through something logically and just take that into consideration, this actually removes that autonomy. It removes their sort of ability to choose, and that's crazy. And it's kind of crazier that we think that this would give people more choice when it actually enslaves them into a medical system almost like forever, actually forever if you think about it. And so, yeah, I very much wrote those points to try to get people to understand that we talk about autonomy in one sense, but we're not allowing people to experience is that do they even have autonomy after these treatments? I don't know. I think it's much harder to say that these are decisions that they're fully making and that they're fully understanding what the sort of choices they're making are. And it's much, much easier to say that perhaps if they're older, much, much older, that they can then figure out if that's something that they really do want to do. But like at 16, even crazier at 12. It's almost taking away their right to be able to see themselves and see their future before it even happens, because those decisions are permanent. They're literally altering their material, physical bodies to conform into something that no one probably at that age knows for sure. is something that they truly want.

Stephanie Winn: Well, excellent work on this whole project. Besides kind of going through these items point by point, of course, people can read the entire document if they'd like to. I'll include that link in the show notes. Is there anything you'd like to say about any of your teammates or anyone who signed on this or anything else about the process?

Diana Lutfi: Sure. I think there's a lot of people who are extremely passionate in this community, and I guess I feel pretty honored to be able to get a whole bunch of voices together and very much weave this sort of cohesive amicus and present that to the court to really allow them to see that we're not We actually feel a lot of compassion towards people who are going through this far more than people realize that we are. We're not haters. We're not trans haters. We really just want a lot more oversight and a lot more protection for everyone. And that is the narrative that truly is, I think, the hidden narrative of why most people kind of do this type of work. But yeah, are you going to ask why I did it? Should I move on to that?

Stephanie Winn: Yeah. Just the why and how you did it? Yeah.

Diana Lutfi: So I think what most people don't actually recognize about my background is I would probably be the least likely person to involve myself in this. I wrote my thesis on coercion in pediatric health care. I very much have been very pro minors should be able to vocalize and choose and speak out. And when I saw this, the very first question that some people asked me is, what do you think of minors' autonomy now, right? That it led them into this really, really horrible decision. And I said, I still think that they should, but I think that the states and other people should be able to also block access. And that's very, very different than saying that they must do and must go through with something. And so I think this very much became my sort of bioethics views on what the rightful protection should be, like what the rightful role of a state protective agency and a state power should be in terms of the minor's life, right? And the crazy part is we see this sort of inverse happening with regards to any sort of authority figure trying to protect the minor, right? We see parents who are being reported to CPS, who are being coerced, who are literally being forced to consent, or would lose their kid permanently if they chose not to go along with this. Right? We see the sort of inverse occurring in terms of abuse when really it's supposed to be the state powers and state protections that is supposed to block and actually protect people from doing crazy things that would permanently hurt themselves. And so I think part of why I did this was I saw that need. I saw a group of people who were not fully represented in the court system, and I know that a lot of that narrative, if I hadn't written this, would be the states are infringing on individual rights. And at least what this does is it says, no, actually, the states are protecting the individual rights of these individuals and of people who were literally in their shoes.

Stephanie Winn: I have a little guess if I can psychoanalyze here just a little bit. So my guess is that you were a precocious kid Yeah. Okay. Because you seem like bright and young and I don't know how old you are, but I read you as like someone who was a gifted kid and who was precocious. And so I can imagine that if you yourself were that way, that you would see the world through that lens. And so when you would, you know, as someone in your 20s, let's say thinking about people in your teens, you would see them through the lens of, what your decision-making capacity and knowledge and insight was like as a teenager and you maybe had to kind of course correct as you get older and I don't know if you have your own family or as you have more life experience and perspective you can think like, you know, there are kids with IQs of 80. There are kids who are caught up in this. There are kids who are vulnerable with autism. There are people who are completely blind to their own psychological motives. Maybe not everyone was as precocious as you were.

Diana Lutfi: You are correct in that, yeah. I started puberty at like 11. No, no, I started puberty at 10, which is kind of normal range, maybe younger. But I had to actually grow up really, really fast. And it's kind of interesting because I've always protected other people's rights all around me and I grew up. of standing up for people. And it's kind of just interesting that I'm, again, in this space where I'm like, I could uniquely understand this, but I have to essentially frame it in a way that I very much can truly believe that the state really has people's That this sort of authority of the state is is to protect and protecting actually really means blocking in a lot of ways and Yeah, it's it is kind of funny because yeah, I became like the youngest TEDx licensee I was like I was like 14 when I organized my first event. I was essentially telling people who were much, much older than me how they should present. And when I went to college, I went at 17. I did my study on pediatrics. I first met my psychiatrist advisor at 17. She, to this day, is like, Yeah. You did a whole study on coercion mostly because I was here going like, yeah, I didn't feel safe. I didn't feel safe existing. Now, I can't just turn a blind eye at what's happening. Yeah, you're right. Psychoanalysis is absolutely correct. I, you know, graduated early. I ended up getting my master's in healthcare management at Denver mostly because I wanted to stay away from this healthcare issue and it still, like, bothered me, like, everything that I saw in terms of healthcare abuses. As a kid, like not even as a kid, but like literally as an undergrad, I graduated at 20 and then ended up, you know, pivoting from there to healthcare management and ended up pivoting from healthcare management into law. But thankfully, like nothing was wasted, like everything that I learned basically got put front and center for this work and for other work, but mostly, you know, in terms of understanding this realm.

Stephanie Winn: So yeah, it's a really good feeling when you're sort of riding that wave of your life purpose and you have those moments where you're like, Yep, I get to use that past experience to get me some wisdom on this, and I'm just bringing it all together. Yeah, we only have time for one more question, and this feels very pertinent, something I don't know, which is where are things at in the USA versus Scrimmetti case right now? What's the future of the case? How long is this going to drag out? How hopeful are you feeling about the trajectory and anything about the future of this topic?

Diana Lutfi: So right now it is set for oral arguments on December 4th. So it's very, very soon. And it probably won't get decided or an official opinion won't be published until probably around like May, June. time, that's where most of the opinions of the court get published. And so it's still up in the air. How the court will end up writing this particular decision is very much up to, again, how the oral arguments, you can kind of sense what the justices are concerned about and or not concerned about there. But yeah, that's what's happening in this world. I do sense that I think a lot of the questions might actually center around the topics that I'd brought up in our amicus. And so I'm excited to see that. I'm also really excited to see people be able to argue one way or another. But yeah, as far as what could potentially happen, it really depends. I know that's a whole cliche. Most people in law say it depends all the time. But if The case is essentially argued from a state rights versus individual rights perspective. I do think that some of the justices might actually be more in favor of individual rights. But if that conversation turns on its face to actually saying there are everyone's rights, right? There are individuals involved from every spectrum. And right now we're trying to determine whether or not the states are exercising their authority rightfully. I think that has much more of a chance of writing this decision favorably. Yeah.

Stephanie Winn: Well, I wish you the best of luck. And I think it's a really excellent point that you're making here that this is about the state protecting the right of the individual not only to act on their impulses in the moment, which is what this all boils down to, the argument about autonomy, right? But really protecting the individual in terms of their lifespan, their future, sort of protecting them from themselves in a way. And that takes into account what we do know about developmental psychology. So, excellent job you've done on this paper. I'll include the link. And do you have a donation link as well? If people want to send some money your way for all the hard work you're doing?

Diana Lutfi: Sure, I can send you the DIAG link to contribute.

Stephanie Winn: DIAG is that Democrats for an Informed Approach to Gender? Yep. Okay, great. All right. Well, Diana, it's been such a pleasure. Thank you so much for sharing your wisdom with us today.

Diana Lutfi: Thank you for having me. And wow, I still can't believe you're the first person to psychoanalyze the fact that I'm like, yeah, I'm trying to make myself like I wrote this to be fully comfortable with where I would have been if I was in their shoes, right? Thank you. Take care.

Stephanie Winn: Bye. I hope you enjoyed this episode of You Must Be Some Kind of Therapist podcast. To check out my book recommendations, articles, wellness products, guest episodes on other podcasts, consulting services, and lots more, visit sometherapist.com. Or follow me on Twitter or Instagram at sometherapist. If you'd like to go deeper, join my community at somekindoftherapist.locals.com. Members can dialogue with other listeners, post questions for upcoming podcast guests to respond to, or ask questions for me to respond to in exclusive members-only Q&A live streams. To learn more about the gender crisis, watch our film, No Way Back, the reality of gender affirming care at nowaybackfilm.com. Special thanks to Joey Pecoraro for our theme song, Half Awake. If you appreciate this podcast and want more people to find it, kindly take a moment to rate, review, like, comment, and share on your platforms of choice. Of course, just because I am some therapist doesn't mean I'm your therapist. This podcast is not a substitute for medical advice. If you need help, ask your doctor or browse your local therapists online. And whatever you do next, please take care of yourself. Eat well, sleep well, move your body, get outside, and tell someone you love them. You're worth it.