Legal action may change transgender care in America

FEW ISSUES divide Americans, and their politicians, as much as medical care for children with gender dysphoria. Governors in six Republican states have signed bills that restrict or ban such care, which some see as “child abuse”. In response, some of these states are being sued, and governors in several Democratic states are putting protections in place for a treatment that they see as “life-saving”. Do not expect the politicians to try to settle their differences—they have too much hay to make in whipping up outrage among their supporters. Instead the serious action is likely to play out in the courts.

On February 22nd a lawsuit was filed that could mark the start. Chloe Cole, an 18-year-old who has become a voice for detransitioners in America, is suing Kaiser Permanente, a large American medical provider, for medical negligence. Ms Cole decided at the age of 12 that she was a boy, was put on puberty blockers and testosterone at 13 and underwent a double mastectomy at 15, before changing her mind and detransitioning at 16.

The complaint, filed in California by the Centre for American Liberty, a conservative non-profit that supports Ms Cole, accuses Kaiser of performing a “mutilating, mimicry sex change experiment” on a vulnerable girl instead of focusing on her complex mental health. Her lawyer, Harmeet Dhillon, said medical professionals “permanently disfigured her for profit”.

Kaiser’s broad statement, in response to a request to comment on the allegations, says it “provides patient centred gender-affirming care that is consistent with the standards of medical care and excellence”. It emphasises that it respects “the patients and their families’ informed decisions about their personal health”. But a crucial part of the claim is that Ms Cole says she and her parents were not informed of alternative, less invasive treatments, such as psychiatric care. According to the complaint, physicians suggested that her gender dysphoria would “never resolve unless she chemically/surgically transitioned”.

Proponents of adolescent medical transition say detransition is very rare. Opponents point to two recent studies that suggest 20-30% of patients may discontinue hormone treatment within a few years.

So far there has been little litigation from “detransitioners”, people who received care for gender dysphoria but then decided to stop or reverse the treatment. The medical procedures they underwent are relatively new; it can take years for people to change their minds or to start experiencing negative effects. Moreover, many states have short statutes of limitations, says Candice Jackson, a West Coast lawyer. Some state politicians have promised to change those restrictions.

Another complication is that, in contrast to botched surgery, claiming and measuring harm is more difficult when a doctor has provided exactly what was promised. Muddying matters further still is the belief that medical practitioners are shielded from litigation by the fact that they can say they were following their medical bodies’ guidelines on gender-affirming care, a little-tested assumption.

Few law firms want to risk being labelled transphobic, face being “cancelled” and losing clients. Ms Jackson co-founded her own firm after she realised how hard it was for detransitioners to find legal representation. There has been little money in this business, at least up to now. And, adds one paediatrician, many detransitioners have a history of mental illness. They may make poor witnesses, who can be easy to discredit. But a credible, likeable star witness could break the mould. This may turn out to be Ms Cole.

Cases such as this will take time to be heard and ruled on; some may be settled behind closed doors. Ms Jackson says she is preparing for an arduous battle, much like the one fought against Big Tobacco. Legal victories for detransitioners could have knock-on consequences, by making insurers come to regard gender-transition treatments as a liability. That would push up the costs of providing the treatment, and make providers more careful about advertising.

Most Americans favour protecting trans people from discrimination, but they sharply disagree on medically transitioning children. Whereas 72% of Republicans believe it should be illegal to provide a minor with medical care for gender transition, just 26% of Democrats agree, according to the Pew Research Centre, a think-tank. Activists who believe such care saves lives have tried to discredit Ms Cole, by focusing on the support she receives from firebrands on the right. But the facts of this case—if they are as claimed—could give at least some of them pause for thought.