I have written a couple of prior posts about SB 480 which prohibits gender affirming care for transgender minors regardless of their wishes, their parents’ wishes, or medical advice. Proponents would like this to be seen as a bold stance against kids and maybe their parents recklessly mutilating genitals for, I don’t know, fun and profit. But that’s not what is going on. Gender reassignment surgeries on minors aren’t happening in Indiana. As a practical matter, this is primarily about gender related use of puberty blockers and hormone therapy. Despite knowing that, Gov. Holcomb signed SB 480 into law with a press release leading off with a statement about “permanent gender-changing surgeries.” I’m not a reflexive Holcomb-hater. I think he’s done a lot of the right things in situations where more radical members of his party wanted him to do the wrong things. Still, I’m very disappointed in this. (Although, as a practical matter, a gubernatorial veto is easily over-ridden by the legislature in Indiana.) This legislation won’t help anyone and it will cause harm to a lot people, including families I know.

Within hours, maybe minutes, the ACLU filed suit on behalf of children who are presently receiving or who will, in the future, need gender preserving care; the children’s parents; and medical professionals who want to provide medically appropriate care but, because of SB 480, will not be permitted to do so. I very much recommend reading the Complaint. Ken Falk and the other lawyers at ACLU-Indiana write a good complaint. (I say this despite having been on the opposite end of a couple of them over the years.)

The introduction reads as follows:

Over the sustained objection and concern of medical professionals, Indiana passed Indiana Senate Enrolled Act 480 (“S.E.A. 480”), effective July 1, 2023, which prohibits transgender minors from receiving what the law labels as “gender transition procedures.” These prohibited interventions are evidence-based and medically necessary medical care essential to the health and well being of transgender minors who are suffering from gender dysphoria, a serious condition that can lead to depression, anxiety and other serious health consequences when untreated. By denying this medically necessary treatment to minors, the State of Indiana has displaced the judgment of parents, doctors, and adolescents with that of the government. In so doing, the State has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment. This violates due process. Additionally, by singling out for prohibition the care related to “gender transition,” the law creates a facial classification based on sex and transgender status, violating the equal protection rights of transgender adolescents. It also violates their bodily integrity and is fundamentally irrational, which violates due process. And, to the extent that it prohibits the provision of essential services that would otherwise be authorized and reimbursed by Medicaid, the law violates the federal requirements of the Medicaid Act and the Affordable Care Act. It also intrudes on the First Amendment rights of doctors and other practitioners.

This law takes away critical health care from a group of Hoosiers, leaving them and their parents in dire circumstances. It is vast government overreach into the decision-making of parents and will cause untold harms to the individuals affected and the practice of medicine in Indiana. It is also unlawful and unconstitutional and should be enjoined both as to plaintiffs and the classes they seek to represent.

I particularly appreciated the discussion of gender dysphoria and the use of puberty blockers and hormone therapy. (See generally paragraphs 61 – 90). Puberty blockers delay the onset of puberty and are recommended where the minor’s transgender status “is marked and has been sustained over time” and such treatment is necessary to minimize or prevent the gender dysphoria associated with endogenous puberty. Puberty blockers are reversible. Hormone therapy is a more permanent step and is indicated where gender dysphoria persists and the patient is properly advised of the consequences.

One thing to keep in mind as children, their parents, and medical professionals navigate these situations is that it isn’t a choice between “risk” and “no risk.” Not pursuing gender affirming care where it’s needed has consequences as well including potentially severe gender dysphoria and increased incidents of suicide, self-harm, and other psychological damage. Navigating these questions can be difficult under the best of circumstances and the General Assembly taking options off the table isn’t helping anyone.

Whitney Downard, writing for the Indiana Capital Chronicle, has an article about SB 480 entitled “Bill Eliminating Parents’ Authority Over Medical Decisions Heads to Governor.” I posted about the bill following the House committee hearing a few days ago. The bill passed the House 60-35 on a mostly party line vote.  This legislation is just cruel. It helps no one and makes many people’s lives harder. I personally know at least three families this will affect negatively.

“Indiana lawmakers seem hellbent on joining the growing roster of states determined to jeopardize the health and lives of transgender youth, in direct opposition to the overwhelming body of scientific and medical evidence supporting this care as appropriate and necessary,” said Katie Blair, the advocacy and public policy director of  [ACLU-Indiana].

“The idea that these youth are being pushed into harmful medical care is an insult to their parents who are working very hard to get the best care for their children. Politicians harm us all when they ignore medical judgment and block access to standard care in favor of discriminatory fear-mongering.”

I disagree with a lot of what comes out of the Indiana General Assembly. But, mostly I can at least understand the motivations from, at the very least, a who-gains, who-loses standpoint. Tax cuts for the rich? Well, they earned it, we need to encourage productivity, and spending money on social programs is a waste. Restricting reproductive rights? The fetus is a baby and, therefore, abortion is murder. Etc.

I can usually put myself into the shoes of proponents and grok how they can view themselves as the good guys. (Like my creative writing taught me for developing characters – remember that everyone is the hero in their own story.) But it’s beyond me on this one. You have a kid in need, struggling with a difficult situation, parents who agree with the kid that puberty blockers or hormone therapy is the way to go, and physicians who agree that it’s medically appropriate. Invoking the power of the government to criminalize their efforts will make me the good guy? Maybe my powers of empathy are atrophying, but I just can’t climb inside that mind.

Whitney Downard, writing for the Indiana Capital Chronicle (a great resource for following the legislature, I should add), has a good article about yesterday’s Senate committee hearing for HB 1568 which would give pharmacists the ability to prescribe and dispense hormonal birth control. This legislation passed the House by a vote of 86-12. It wasn’t up for a vote yesterday, just witness testimony. Amendments and a vote will apparently be considered next week. Some of the members of the Senate health committee, Sens. Liz Brown and Tyler Johnson seemed skeptical, citing concerns about maternal health and apparently questioning the proposition that physicians were less accessible in many places than pharmacies.

The point of this legislation is that hormonal birth control isn’t really such a health hazard that pharmacists can’t dispense it properly; meanwhile, it’s important and going through a physician presents what is probably an unnecessary hurdle.

Sen. Leising, not known as some sort of flaming liberal, was apparently supportive:

During their barrage of criticism, fellow Republican Sen. Jean Leising praised the bill for increasing access in her rural district – where she said just three of her seven counties had a hospital with OB-GYN services. Roughly one-third of Indiana’s counties are considered obstetrics deserts with few specialized providers.

A representative of the Indiana Academy of Family Physicians who do not oppose the bill suggested what they regard as improvements: additional requirements for pharmacists, including: mandating blood pressure checks as part of the screening process, provider referrals if health issues are identified (either in the initial screening or related to the birth control) and sharing local resources to find primary care providers.

In addition to purported health concerns, a representative of the Indiana Catholic Conference alluded to what I suspect is the main reason for opposition where it exists: people having sex.  Per this witness, “the widespread availability of contraceptives ‘further facilitated’ extramarital sexual relationships.” At this point in my life, I’ll just say: good. Sex is a very human thing. It doesn’t have to be a complicated thing. Marriage is too important to have people jumping into it just so they can have sex. Similarly, raising children is something we want people undertaking mindfully – not just stumbling into.

The Senate Committee on Education is scheduled to hold a hearing today on HB 1608 which concerns itself with instruction of human sexuality and polices kids’ names for gender conformity. (The committee hearing is likely underway as I write this.)

The first part prohibits “any instruction to a student in kindergarten through grade 3 on human sexuality.” O.k., sounds like it might be reasonable. Depends on what they mean by “human sexuality.” I’ll just go to the part of the bill that tells me what the General Assembly means by that. Whoops. No dice. They flat out offer no guidance on what’s prohibited. If you want to prohibit kindergarten teachers from running Pornhub on a loop and stepping out for a smoke, knock yourself out. It’s not happening, but can’t be too safe, I guess. On the other hand, this is so vague as to potentially prevent a first grade teacher from alluding to someone’s mommy and daddy because … that might lead to uncomfortable questions about what distinguishes a mommy or daddy from the other adults in a kid’s life.

The second part has language similar to what I discussed in connection with HB 1346 a couple of months ago. It says that an employee or a staff member of a school may only use a name, pronoun, title, or other word to identify a student that is inconsistent with the student’s sex if the student’s parent requests [the use] in writing. Even if the parent makes such a request, the school can’t discipline a teacher who chooses to be a dick about the situation and insist on using the kid’s legal name, notwithstanding everyone else’s request to use a different name.

My grandpa, Nelson, went by “Nellie” and his sister was nicknamed “Bob.” I doubt my great-grandparents would have fussed enough to send a note to the school on the subject. So, any teacher referring to them by those nicknames would be lawbreakers in modern Indiana. Progress!

And, more seriously, as I said in connection with HB 1346:

I guess if I were a better person, it wouldn’t take personal experience to help me form my opinion on this issue. But, as luck would have it, I have several friends with transgender children. I’ve known the kids and their parents for a long time now. So, it’s hard for me not to take offense at this legislation because it seems like a monstrous attack on these kids that I know and like and their families. They’re working through issues that can be challenging enough to navigate even when everyone wants good things for the kids and is tackling the issues with an open mind. Now you’ve got the Indiana General Assembly turning these kids into another front in the culture wars. Just marvelous.

 

 

SB 480, prohibiting gender affirming care passed out of the Senate Health Committee on an 8-5 vote. It prohibits doctors from providing necessary medical assistance to transgender kids who need their help. I suppose its proponents fancy that they are taking bold action to stop a rash of doctors recklessly cutting off penises and otherwise mutilating the genitals of momentarily confused children while their approving parents look on. But: a) that’s not what is happening in the real world (surgeries on minors aren’t happening in Indiana); and b) this legislation prohibits a lot more, including puberty blockers and hormone therapy.

I’m no expert, but I trust the General Assembly even less than I do myself with these decisions. I’m told puberty blockers are generally reversible and, while hormone therapy might be less so, whatever risks there are have to be weighed against the benefits of action and the risks of inaction. The mental health problems and suicidal ideation rates among transgender youth are appalling. Preventing these kids from getting medical help is cruel. The kids, their parents, and physicians need to navigate the costs and benefits of action and inaction. Getting the General Assembly involved and tying the hands of physicians isn’t going to help anyone.

This is cut and paste legislation being promoted by national groups. Why? Some of it is surely cynical. Divide the country with easily understood culture war issues that provoke an emotional response and profit. Liberals are emasculating our boys and making our girls masculine! Well, shit. That’s horrifying. Better vote for the real Americans who will put a stop to this hippie-dippy nonsense. Some of the politicians and a lot of their supporters likely believe in their cause. Men are men. Women are women. And “science” which says otherwise is against God and Nature. I think it’s also partly another manifestation of the nostalgia-sickness from which we suffer. Through the lens of nostalgia, the past was a simpler time where, among other things, gender roles were clear and the world was better.

Only they weren’t, really; and it wasn’t. In the past, there were still gay people and transgender people. Mostly, I think they just hid and suffered. And, in so many ways, the world was objectively worse in the past for almost everyone. But, it was especially worse for people who didn’t conform to the cultural defaults. We should aspire to make the world a place where people can take joy in their lives. This legislation is decidedly not that.

Edited to add link to a good article by Whitney Downard, writing for the Indiana Capital Chronicle. She notes that this is part of a nationwide effort to dictate how parents raise their transgender children. However, the number of children pursuing this treatment is small – 0.001% according to one measure.”  Supporters mostly did not justify their committee votes; though Dennis Zent, R-Angola, shared his thoughts, “saying testimony about changing ideals in Europe influenced his affirmative vote.” Changing ideals in Europe?

Meanwhile the potential harm from this bill is very real:

“My child is 16 and I can tell you before he started in hormone therapy he was withdrawn, he didn’t have friends… there was a point when he didn’t leave the house,” Westville parent Alisha Hunter told the committee. “This (ban) will be life altering for my child… He’s happy and that will all change.”

Hunter shared her son’s multi-year journey, saying that her family was considering leaving the state — a sentiment shared by multiple other families who testified against the proposal.

Senate Bill 12 –in the form it passed the Senate – has two parts which share a theme but which aren’t legally connected: 1) it removes a defense to criminal prosecution for distributing “material harmful to a minor” that is available under current law for educational purposes and for school libraries; and 2) it creates a bureaucratic process for people to complain about “inappropriate material” in school libraries.

CRIME OF DISTRIBUTING MATERIAL HARMFUL TO MINORS

Under current law, it is a level 6 felony to disseminate, provide, perform, etc. “material harmful to minors.” (IC 35-49-3-3). Material is considered “harmful to minors” if: “(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse; (2) considered as a whole, it appeals to the prurient interest in sex of minors; (3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and (4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.”(IC 35-49-2-2).

This largely tracks the definition of “obscenity” as laid out by the Supreme Court for material that doesn’t enjoy First Amendment protection except that it considers what is appropriate for minors rather than what is appropriate to the adult community as the standard. This part is not new and it isn’t being changed by SB 12.

What is being changed has to do with defenses to prosecution. Under current law, there are a number of defenses to prosecution for this crime. Among others, it is a defense if the material was made available for legitimate educational purposes and also if it was made available by a “bona fide school, museum, or public library” (and their employees.) This legislation eliminates the defense in existing law that the material was made available for educational purposes. It also strikes the defense that the material was made available by a school and, instead, limits the defense to colleges, universities, and college & university libraries.

Advocates might argue that the legislation doesn’t create a new crime. That doesn’t make schools or educators uniquely subject to this prohibition of the criminal law. If this law passes, K-12 schools would be on the same footing as the rest of the public. However, it can’t be disputed that this particular legislation does increase the criminal exposure of educators and K-12 employees by removing a defense that is currently available to them. And my personal opinion is that this is utterly unnecessary because there is no evidence that schools are actually disseminating what amounts to obscene material for which they deserve prosecution; and certainly no evidence that they are evading prosecution by asserting the defenses currently available under the law. By “fixing” a problem that doesn’t exist, the General Assembly is, in a sense, defaming educators and schools by creating the impression that schools and teachers are, in fact, disseminating obscenity. There are circumstances in which “the question is an accusation.” Legislation isn’t a question, but it’s the same dynamic.

LIBRARY BOOK LIST & PROCESS FOR COMPLAINING ABOUT BOOKS

The other provision in SB 12 is a new Chapter in the School Law title of the Indiana Code. It requires the school to create a list of all of the books in its school libraries. The list has to contain the title, author name, edition, publisher, and year of publication. This list has to be on the school website and be available in hard copy.

The new law would also require the school to adopt a procedure by which a parent or guardian of a student in the school could complain that a book in the possession of the school library is “inappropriate to students.” The legislation does not contain any guidance on what might qualify as “inappropriate to students.”

STEP ONE: Parent submits a complaint. The book is reviewed by a certified librarian. If the librarian decides to remove the book, the process stops. There does not be a process for anyone else to second guess or protest the removal. If the librarian denies the complaint, then he or she is to provide a written response to the person making the complaint. (There is a middle option where the librarian could decide to put the book in an “age-appropriate” section of the library. I don’t think the legislation does a good job of laying out how that option fits into the process — I think the librarian is not required to provide a written response to the complaint in that situation but the parent could appeal the decision. But, it’s tough to be sure. For the rest of this description, I’m just going to focus on “remove the book” or “deny the complaint.)

STEP TWO: If the librarian denies the parent’s complaint, the parent can escalate the complaint to an “appeal committee.” This committee consists of the principal, the librarian, and a parent or guardian. (I think the parent or guardian can be anyone, but it’s possible they intend that the parent making the complaint is part of the committee. It also doesn’t say whether this parent or guardian has to have a kid in the school or have anything to do with the school.) The appeal committee can uphold, modify, or overturn the recommendation of the librarian and is required to issue a written decision. The parent can further elevate the complaint if he or she disagrees. (Again, there is no process for anyone else to second guess the matter if the appeal committee sides with the parent.)

STEP THREE: The parent can appeal the decision of the appeal committee to the school board. If the school board denies the parent’s complaint, it must issue a written decision. (If it accommodates the complaint, it apparently does not need to make a written decision.)

I have several complaints about this part of the legislation:

1. The list making seems cumbersome – though maybe this is a report that can be generated easily with a library’s current indexing system.
2. It contains no guidance as to what the General Assembly considers “inappropriate to students.” Anything at all can trigger this bureaucratic requirement.
3. It singles out books for a complaint process. Surely there are other aspects of school life that parents grumble about, and those get resolved without taking it to the school board.
4. The school board has enough to do. Our school district’s last meeting took something like 3 hours and it was routine business. Adding book reviewer to board member’s job description will be tough on anyone who has a day job.
5. It’s biased in favor of removal. At every step, if the school removes the book, the process ends. Nobody seems to have the right to appeal that decision. If the General Assembly is going to insist on this process, why not notify the rest of the school community which will be deprived of a book, that the book is being removed at the request of Parent X and give anyone else the option of appealing the removal decision?
6. It’s unnecessary. Parents can already take the issue up with librarians and school administrators and school board members. These people should be considerate of complaints, but at the same time, they should have the option to decide that a book should remain available without being subjected to a process designed to increase pressure on them to remove books.

This legislation doesn’t address actual problems. In fact, it causes a few. But it pokes at the emotional centers of our brains. “Children are being corrupted!” Ultimately, it is another skirmish in the culture wars.

Sheila Kennedy has a good blog post on the latest effort by the Indiana General Assembly to gut public education: universal “scholarship” found in SB 305. Worth just going and reading the whole post, but here’s a bit:

As numerous observers point out, there’s a lot wrong. For one thing, the bill lacks any public oversight or measures ensuring accountability. The state would simply give tax dollars to parents who would be trusted to spend it on their children’s education (there doesn’t seem to be any mechanism to ensure that the dollars would actually be used for education) at any school of their choice, or for home schooling and/or educational materials.

Apparently, all a parent needs to do to get some $7500 per student is fill out an online application promising to spend “part of the money” for the study of “reading, grammar, mathematics, social studies or science.” No standards. No requirements for art, music, foreign language or–perish the thought–civics. Not even those pesky criminal background checks required of public school teachers and volunteers.

Interestingly, the program would be managed by the state’s treasurer–not the Department of Education.

As I’ve repeated ad nauseam, Indiana’s education policy over the last 20 years makes more sense if one understands it as being in pursuit of these goals: subsidize religious education, weaken teacher’s unions, and re-direct public dollars to friends and well-wishers of pro-privatization policymakers. It does not make sense if the goal was to improve educational outcomes for Hoosiers.

HB 1346, introduced by Rep. Teshka, forbids a school from encouraging its employees to use a student’s preferred pronouns or nicknames. Specifically,  School corporations are forbidden from encouraging employees to use:

1) a pronoun, title, or other word to identify a student … that is inconsistent with the student’s sex; or
(2) a name or nickname to identify a student that is inconsistent with the student’s name on the student’s birth certificate.

That second one is written so that my son’s nickname is presumably off limits even though it has nothing to do with sex or gender. My son’s given name is “Lincoln.” That’s kind of a big walking around name for a little guy, so we nicknamed him “Cole.” We ginned it up based on the “col” in the middle of “Lincoln.” But there’s a good case to be made that “Cole” is inconsistent with the name “Lincoln” on his birth certificate; so West Side would have been breaking the law if it encouraged its teachers to use his nickname because he likes it better. Presumably the intent is to go after boys using “girl” names and vice versa. (We might have to outlaw names like “Pat” and “Jan” for those crafty s.o.b.’s looking for a loophole.) But that’s not how it’s written.

In fact, as written, a teacher is only permitted to use the preferred nickname or pronoun if the parent makes a written request and provides a medical note that the student has a “sincere, persistent, and consistent” belief that the student’s gender differs from their sex. So, if our nickname was deemed inconsistent with our kid’s birth certificate name, we’d be out of luck. We could make the request, but we’d be unable to get a doctor’s note that complies with the requirement. 

Additionally, the bill defines “gender fluidity” as any “theory or ideology” that adopts views such as one that it’s possible for an individual’s gender to be based on the individual’s preferences or that an individual’s (biological) sex can be changed to align with the individual’s gender if the biological sex and gender are inconsistent. Schools are forbidden from requiring teachers to be supportive of gender fluidity.

I guess if I were a better person, it wouldn’t take personal experience to help me form my opinion on this issue. But, as luck would have it, I have several friends with transgender children. I’ve known the kids and their parents for a long time now. So, it’s hard for me not to take offense at this legislation because it seems like a monstrous attack on these kids that I know and like and their families. They’re working through issues that can be challenging enough to navigate even when everyone wants good things for the kids and is tackling the issues with an open mind. Now you’ve got the Indiana General Assembly turning these kids into another front in the culture wars.  Just marvelous.