This post is part of a series on the law and political economy of trans healthcare. Read the rest of the posts here.
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In recent years, opponents of trans medicine have increasingly presented themselves not as oppressors—intent on denying care to individuals whose gender identity they reject—but rather as the righteous critics of a corrupt “gender identity industry.” Big Pharma and Big Tech are to blame, they allege, for warping the fragile psyches of vulnerable youth via social media platforms and then selling them expensive, “experimental” puberty-suppressing medications, hormone replacement therapies, and surgeries as salves. This populist-in-form critique has spread rapidly, along with state bans on trans health for minors that now cover over half of the country. Criticisms of this so-called “transgender treatment industry” can be found in conservative states’ litigation defending their bans, as well as in a recent executive order that questioned whether such care might constitute consumer “deception” or “fraud.”
In a forthcoming essay in Signs, I have sought to understand the origins and ideological power of this anti-industry narrative. The fear of a predatory “transgender-industrial complex” clearly draws from due skepticism of industries that many understandably abhor. Pharmaceutical and social media companies do indeed hold dominion over our wallets, health, and attention spans. From there though, the narrative spirals into baseless paranoid suspicions about the perverse motivations of gender identity clinicians and their professional associations, complicit bureaucrats in the Department of Health and Human Services (HHS), and trans subjectivity itself, which in this account is a blend of psychic pathology and a shopping disorder. Perhaps that it why this conspiratorial idea was at first confined to the fringes of the blogosphere—mainly in the writings of gender-critical, anti-transhumanist, and Catholic and Christian fundamentalist authors from around 2018-2021—before right-wing politicians, media outlets, and think tanks adopted a version of the idea to ground their anti-trans scapegoating policies.
Here, I want to focus on one voice in the anti-gender identity industry chorus, the ostensibly libertarian Manhattan Institute, and ask what its leaders and donors might gain from fomenting distrust of healthcare professional associations and bureaucrats. Unlike the Heritage Foundation, which was co-founded by right-wing Catholic strategist Paul Weyrich and has a long history of promoting anti-trans and many other socially conservative political campaigns, Manhattan’s fixation on trans medicine is less obviously aligned with their mission. While the think tank has infrequently published pieces critical of LGBTQ+ rights in its City Journal magazine, it has historically focused on matters of neoliberal governance, specifically criticisms of social welfare programs, labor unions and pensions, policing, and housing policy. That agenda reflects the priorities of its co-founders, William J. Casey, a venture capitalist who later became the Reagan administration’s Iran-Contra era Director of the CIA, and the British mining executive Antony Fisher, a staunch Hayekian who traveled in the same political circles as the U.S. oil tycoons Charles and David Koch.
That history and ideological orientation might come as a surprise to anyone who has come across Manhattan’s recent obsessions with trans medicine. Each week, the institute publishes a newsletter titled “Gender Debrief,” which covers trans rights and healthcare policy and legal developments. Its senior fellows like Christopher Rufo routinely publish takedowns, like the one in “The Business of Transgenderism,” detailing a cabal of trans studies scholars, Marxist activists, and pharmaceutical billionaires who have “employed or subsidized” gender-affirming doctors, counselors, and teachers. Other City Journal stories feature “whistleblowers” who claim to have “exposed” clinics flouting gender-affirming care bans or who have previously worked at clinics before turning against “gender ideology.”
Much of this writing on trans medicine and other “woke” medical practices has blamed “corrupt” professional healthcare associations like the American Medical Association (AMA) for championing, among other things, gender-affirming care and DEI medical school curricular reforms. HHS leaders and programs have also come under Manhattan’s fire. Senior fellow and “Gender Debrief” collaborator Leor Sapir recently rebuked the Centers for Medicare & Medicaid Services for “systematically downplaying” the evidence against gender-affirming care, which he believed could either be explained by intentional obfuscation, regulators’ incompetence, or perhaps the “standard bureaucratic pathologies, from excessive red tape to deficiencies in intra-agency communication and coordination.”
The focus on organized healthcare professionals and bureaucrats here is instructive. Manhattan’s leaders, donors, and allied groups like the American Legislative Exchange Council (ALEC) have inherited libertarian economist Milton Friedman’s notorious opposition to what he called “the monopoly power of the American Medical Association.” Friedman blamed the high costs of medical care on state occupational licensing schemes, which restricted the practice of medicine to a small number of highly credentialed and well-remunerated healthcare professionals. One need not exonerate the AMA for its complicity in the deficiencies of the U.S.’s privatized healthcare sector—although its role in soaring healthcare costs has often been exaggerated—to see the failures of Friedman’s explanation and who stands to benefit from removing such licensing requirements. Indeed, one of Manhattan’s earliest published reports from 1982 featured a roundtable discussion on George Mason University professor Walter Williams’s book, The State Against Blacks, which claimed that racial disparities in wealth and wages could be resolved through the elimination of strictures to the free market, including guilds, licensure schemes, labor unions, and social welfare programs. The following year, Manhattan published a report in which the economist Mancur Olson criticized both the AMA and major labor internationals as inefficient “lobbying and cartelistic organizations.” In other words, any organization of workers—professional or otherwise—or regulations of the healthcare workforce tend to disturb an otherwise free and rational market.
Manhattan and City Journal writers have continued to question the wisdom of healthcare licensure policies, pushing incremental policy changes that all point in a Friedmanite direction. Just in the past few years, their writers have criticized licensure requirements for healthcare workers, including emergency medical technicians as, well as policies that mandate that physician supervisors oversee standalone clinics for procedures like dialysis. Another City Journal piece recently encouraged states to open their licensing bureaucracies to market competition so that alternative COVID-19 treatment protocols—in contrast to “drugs pushed by the medical establishment”—might flourish. And what if these free market reforms wind up degrading the quality of healthcare? Trust the consumer to pick out a competent doctor from a basket of otherwise rotten apples! According to Manhattan’s health-policy project manager, consumer review platforms like “Yelp, ZocDoc, and HealthGrades” have already rendered archaic AMA practices, such as the accreditation of medical schools, useless at best and harmful at worst.
Ongoing challenges to state-level “conversion therapy” bans offer significant firepower to licensure’s opponents, which is perhaps why Manhattan has been cheering for federal courts to throw out these laws. In early March, the Supreme Court decided to hear the Alliance Defending Freedom’s (ADF) challenge to a Colorado ban in Chiles v. Salazar, which it filed on behalf of licensed counselor Kaley Chiles. Stressing the “talk” in “talk therapy,” the ADF has argued that “professional speech,” such as the conversations that occur between a healthcare provider and patient, cannot be categorically carved out from broader First Amendment free speech protections. This argument relies heavily on the Court’s 2018 decision in National Institute of Family and Life Advocates v. Becerra, a case concerning California regulations requiring that anti-abortion crisis pregnancy centers and other clinics advertise the availability of state-funded reproductive health resources. Although NIFLA was indeed an anti-abortion victory, its doctrinal impact extends far beyond abortion by exposing many other healthcare regulations—including those pertaining to licensure—to heightened judicial scrutiny.
Another libertarian Koch-funded organization, the Institute for Justice (IJ), enthusiastically supported NIFLA as a means of undermining licensure policies. After the Court ruled in NIFLA that professional speech did not necessarily deserve fewer First Amendment protections than other forms of speech, the IJ quickly turned around and applied NIFLA to the complaints of its own clients, including an unlicensed “health coach” who flouted Florida occupational licensure requirements for dieticians and nutritionists and a licensed therapist who has challenged New York’s teletherapy regulations. In its related legal work on commercial speech, the IJ has also aimed to overturn Williamson v. Lee Optical (1955), a cornerstone of New Deal era jurisprudence that prohibited anyone other than a licensed optometrist or ophthalmologist from fitting lenses for eyeglasses or duplicating lenses without written prescriptions. It’s not hard to see then why otherwise “free market” focused think tanks and litigation outfits have latched onto defenses of anti-abortion clinics and, in Manhattan’s case, those accused of practicing discredited, dangerous, and unethical “conversion therapies.”
Such convergences accord with Melinda Cooper’s work drawing out the ideological connections and policy preferences that have long united organized neoliberals and social conservatives. To be clear, for institutions like Manhattan and the Institute for Justice, their flirtations with ideologically social conservative causes like abortion and LGBTQ+ health rights and protections appear to be basically just that: their primary aim is to use these causes to knock out healthcare professionals’ guild power and to undermine HHS.
The Manhattan Institute, in particular, seems willing to ride the wave of paranoia that has brought the Trump administration and the likes of HHS Secretary and wellness huckster RFK Jr.—who also has it out for both the AMA and gender-affirming care—into power. That is not least because Rufo himself laid out the blueprint back during the initial critical race theory panic when he openly declared that, “To get to universal school choice, you really need to operate from a premise of universal public school distrust,” a strategy that Manhattan has repurposed for the health bureaucracy and organized professions. It remains to be seen just how successful this regime will be in its ongoing assault on the healthcare regulations, professional expertise, and labor power, but at least for now we can see the attack on trans medicine as just one part of that larger agenda.
