South Dakota’s Vulnerable Child Protection Act Passes Committee

January 22, 2020

WoLF Board Chair Natasha Chart and Board member Kara Dansky testified today in support of the Vulnerable Child Protection Act, introduced in the South Dakota legislature by Rep. Fred Deutsch, to prevent medical harm to children who’ve diagnosed themselves with gender identity issues.

The measure will forbid doctors to prescribe drugs that block puberty, or cross-sex hormones, or to provide cosmetic surgery to remove healthy breasts or genitals, for children under 16.

“It’s good that legislators are finally standing up to say that it’s cruel to destroy children’s sexual function for not fitting into sex stereotypes and gendered expectations,” Chart said. “The drugs for affirming a child’s self diagnosis that something is wrong with their bodies can age the endocrine system by decades, sometimes throwing them into menopause before puberty, while the harms of botched or regretted surgeries are often irreversible.”

“The worst part of watching the acceleration of child transition has been knowing that many of the kids swept up in it would otherwise have grown up to be happy with their bodies. Yet people in authority have looked the other way as doctors have helped these children harm themselves. Many are same-sex attracted, are suffering from trauma, or have developmental disorders, but the organizations claiming to look out for the interests of lesbian, gay, and bisexual youth, or of young people on the autism spectrum, for instance, have all simply cheered as South Dakota doctors have joined the rush to profit from this,” said Dansky.

“Sterilizing children, or trying to cure psychiatric and social problems with the removal of sex organs, is a social trend that should have been left in the eugenics era,” Chart said, “and hopefully this malpractice can be put to rest once again.”

Today, WoLF released the report, “Eugenics: Then and Now,” a historical overview of parallels between procedures offered to pediatric gender clinic patients today, with procedures used in the eugenics era towards similar populations, also on the strength of medical claims that the removal of sexual function could treat mental health difficulties and broader social problems. (Report updated Jan. 26, 2020)

“The federal government started putting coverage restrictions on the unnecessary sterilization of minors following eugenics-inspired medical abuses in 1976,” said Chart. “It’s very strange that doctors are now ignoring the spirit of these restrictions in private practice, claiming they can fix mental health issues in children by means of chemical castration or genital surgery. Unsupported claims of this kind have led to tragedy in the past, and minors are no more capable of consenting to permanent sterilization than they were over 40 years ago.”

Prepared testimony of Natasha Chart, to the South Dakota legislature:

Hello, thank you for considering my testimony. I’m the board chair of the radical feminist organization, the Women’s Liberation Front, and a longtime political progressive. 

We’ve been told that gender identity issues are complicated, maybe beyond our understanding. 

This is misdirection.

I’m a bisexual woman on the autism spectrum. When I was young, I liked dinosaurs, archaeology, and science fiction. I hated my body as puberty started. I hated the way grown men started leering at my chest. Doctors and schools didn’t usually catch mild autism in girls then, either, it was hard. 

But today, I might be told that my odd interests or social unhappiness, my nonconformity to stereotypes, might mean I’d been born in the wrong body. I was depressed and had few friends. I might have diagnosed myself as transgender, as so many do now, after seeing hundreds of transition testimonials on social media.

Today, girls like me are put on Lupron and sent into premature menopause as young as 12, maybe to get mastectomies soon after. Then they may need a hysterectomy by their early 20s, from the harms of testosterone acting on female organs.

We can all be sure that humanity hasn’t suddenly developed a new type of child that needs their sexual function removed before adulthood. 

Though sadly, I’ve now seen years of press coverage of girls who sound much like I was, saying they want to be boys, and damaging their bodies to prove it. Doctors shouldn’t help kids take out their sadness and anger on the only bodies we can ever have.

Please vote yes to forbid the sterilization of these young people.

Prepared testimony of Kara Dansky, to the South Dakota legislature:

Good morning,

My name is Kara Dansky. I am an attorney and I serve on the board of the Women’s Liberation Front (WoLF). I formerly worked for the ACLU’s national office as senior counsel on criminal justice law and policy, and I am a lifelong Democrat. I am speaking today on behalf of WoLF in support of House Bill 1057, and to address the unsupported assertion that the bill is unconstitutional.  

The ACLU of South Dakota has proclaimed that “It is unconstitutional to single out one group of people and categorically ban all care, no matter how medically necessary.” But it is not at all obvious why this bill might be unconstitutional.

As a general matter, Americans do not have a Constitutional right to receive any particular medical procedure. For example, the United States Supreme Court ruled in Washington v. Glucksberg that physician-assisted suicide is not a fundamental liberty interest that is protected by the Due Process Clause of the 14th Amendment.

It is clear from Supreme Court jurisprudence that mentally competent people have a constitutionally protected liberty interest in refusing unwanted medical treatment. See, for example, Cruzan v. Missouri. But in the same case, the Supreme Court noted that this right must be balanced against legitimate state interests. And, the general constitutional right to refuse treatment does not necessarily suggest that there is a corresponding right to obtain treatment.

If this bill is enacted into law, and if it is ever challenged on constitutional grounds, one question will be whether the law is protecting a legitimate state interest. In other words, does South Dakota have a legitimate interest in protecting the integrity of the bodies of minors? And the answer must be that of course it does.

Generally speaking, U.S. courts have ruled that minors have the right to consent to medical treatment under certain circumstances. But that right is not absolute; it is subject to balancing against legitimate state interests. For example, in a case called In re E.G., the Supreme Court of Illinois ruled that “mature minors” have the right to consent or refuse medical treatment, but that this right must be considered along with four state interests: preserving life, protecting the interests of third parties such as parents, preventing suicide in cases concerning the termination of life-saving care, and maintaining the ethical integrity of the medical profession. The Court did not explicitly distinguish between 16-17 year old minors and younger minors in its ruling. Whatever else one might think about putting a child on dangerous hormones and permanently altering the integrity of a child’s body, surely such a practice implicates a state’s interests in preserving life and maintaining the integrity of the medical profession, at a minimum.

The ACLU could be suggesting that the bill is in some way in violation of the Equal Protection Clause of the 14th Amendment. But that is not true either, because self-identification as “transgender” is not a suspect class under existing Equal Protection jurisprudence.

In conclusion, I urge the members of this Committee to vote yes on House Bill 1057.