Adults Only?

Should bans on gender affirming care be extended beyond minors?

The decision by the United States Supreme Court in United States v. Skrmetti held that state laws that restrict medical transition of minors do not violate the equal protection clause of the United States constitution. While many of the legal details of the case are only relevant to the United States, one issue of broader interest is whether the treatment bans can extend beyond minors. There does not seem to be any legal reason why they could not. For example, most states have laws which set the minimum age for drinking alcohol at 21.

Most of the objections to medical transition of minors apply equally to medical transition of adults. Detransitioner Michelle Alleva made this point in a series of X posts for Detrans Awareness Day:

“Pseudoscience doesn’t become evidence-based at the age of 18”

“Medical malpractice doesn’t magically stop at age 18 (or age 25) (or any age).”

“Mentally ill, developmentally delayed, and intellectually disabled adults deserve proper health care, too.”

While the weakness of the evidence base supporting gender-affirming medicine for minors has received most of the attention in the current debate, the evidence supporting adult transition is not much better. A systematic review of gender-affirming hormone therapy (Baker et al., 2021), which WPATH commissioned but then largely ignored, examined studies of both children and adults and found that the evidence that hormone therapy contributed to improvements in quality of life, depression and anxiety was low quality and that there was insufficient evidence to draw conclusions about the effect of hormone therapy on death by suicide.

A recent database study of mental health outcomes for gender affirming surgery found that patients who had undergone surgery showed higher rates of depression, anxiety, suicidal ideation and substance abuse disorders than those without surgery. There is evidence that long-term cross-sex hormone therapy is associated with a variety of health problems, including an increased risk of osteoporosis and cardiovascular disease.

The age of majority is an arbitrary number and says nothing about the actual capacity of a person to make informed long-term decisions. Many detransitioners did not start medical transition until their early twenties and still made a decision they deeply regret. Patients are often started on medical transition either with no mental health assessment whatsoever or a cursory assessment which proceeds from the assumption that self-declared gender identity is innate and detached from any other mental health problems.

None of these reasons mean that medical transition should be banned. Political interference with medical decision making is generally a bad idea for two reasons. The first is the pragmatic argument that clinical decision making is too complex to be regulated by law. It takes years of study to become a doctor and good doctors need to update their knowledge constantly. This knowledge has to be applied to the individual circumstances of every patient. Law is too blunt an instrument to regulate an area where sound decision-making depends on sensitivity to individual cases and evolving scientific knowledge.

The second reason is respect for individual autonomy. A classic statement of this principle is found in On Liberty by John Stuart Mill:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.

How is Medical Practice Regulated?

Nevertheless, many aspects of medical practice are tightly regulated by law and it is necessary to consider the how and the why of medical regulation. Some of the ways in which the practice of medicine is regulated include:

· Medical practitioners must be licensed by a professional regulator, which sets minimum education requirements and enforces standards of professional competence and ethics.

· Doctors who harm a patient through failure to meet professional standards of care may be sued for malpractice.

· Certain medical procedures may be prohibited by law (e.g. abortion or female genital mutilation).

· Drugs must be approved by a regulatory authority before doctors are permitted to prescribe them.

· Public and private health insurance plans may exercise indirect control by restricting the types of treatments they cover.

However, the primary means of regulating medical practice is through professional standards of care. Some of these standards may be set out in formal practice guidelines issued by regulators or professional associations, but they are often a matter of consensus among leading doctors in a field. While standards are generally enforced through education and persuasion, they are also used by courts and regulatory tribunals in deciding whether a doctor is guilty of professional negligence or misconduct.

Why Regulate Medical Practice?

The justifications for laws and regulations that limit patient and doctor autonomy can be grouped into five categories. The principle of autonomy assumes that patients have all of the knowledge they need to make rational decisions about their healthcare. This is not true in the vast majority of cases. Patients with no medical training have no way to judge whether their doctors are in fact providing competent medical care. Medical decisions often have to be made quickly when patients and their families are under great stress, and often have little real choice as to which doctors they see. A system of licensing and regulation helps reassure patients that any doctor they deal with is competent and trustworthy.

Similarly, individual doctors cannot evaluate whether each drug they prescribe is safe and effective. A centralized system of drug licensing is the most cost-effective way of ensuring that each drug is properly evaluated and adverse effects are tracked.

A second rationale is to protect people who are vulnerable and not capable of making informed decisions. This group includes children and people with serious mental illnesses or neurodevelopmental conditions and addictions. In these situations, a parent or guardian is generally given the power to act as a decision maker, but the state retains an oversight role to guard against abuses.

The public health rationale recognizes that some medical decisions are not simply private matters but affect the public as a whole. Infectious diseases, if not controlled, can spread rapidly, so public health authorities may impose requirements for mandatory reporting, quarantine and vaccination.

Regulation may also be required to allocate scarce health care resources efficiently and equitably. This may include regulating the availability of treatments covered by public or private insurance so that tax payers or premium payers are not burdened with the costs of treatments which are neither safe nor effective.

Finally, there are situations where there is some moral principle that, in the view of the legislature, overrides the principle of respect for autonomy. Prohibitions against medically assisted death and therapeutic abortion are examples.

Examples From the Past

In order to understand how various forms and rationales for medical regulation relate to gender-affirming care, it is helpful to consider various past medical scandals and how they were resolved.

The thalidomide scandal provides an example of drug regulation at work. Thalidomide was developed in Germany and approved in the United Kingdom, Canada and elsewhere for morning sickness in pregnant women. After a few years it was noted that mothers who had taken the drug were giving birth to babies with missing or stunted limbs and the drug was taken off the market. Babies in the United States were spared because the Food and Drug Administration refused to license the drug.

Gender-affirming care has not been subject to scrutiny by drug regulators because it relies on off-label use. Drugs are tested and approved for specific medical conditions which are described on the “label” or marketing materials produced by the manufacturer. However, once a drug has been licensed, doctors are free to prescribe it for any other condition where it might be helpful. So long as drug manufacturers do not explicitly promote these off-label uses, they do not have to seek regulatory approval.

Most of the drugs being used for gender affirming treatments are being used off label. Lupron, which is commonly used as a puberty blocker, is licensed for the treatment of prostate cancer, endometriosis and precocious puberty. Testosterone products prescribed to trans-identified females are approved for use in males and official labels specifically warn against use in women. There are many conditions where off-label prescribing is unavoidable since no one is prepared to incur the costs of obtaining licensing approval for using an existing drug to treat a relatively rare condition. Off-label prescribing is common in pediatric medicine since most drugs are only tested on adults before approval.

Controlling prescribing practices is more complex than simply licensing drugs. While the drug approval process is time consuming, it only needs to be done once. Prescriptions are written and filled in thousands of doctor’s offices and pharmacies on an ongoing basis. In federal states, drug licensing is generally done at the federal level while the regulation of doctors and pharmacists is done at the state or provincial level.

The opioid crisis is an example of the challenges of regulating prescribing practices. Opioid addiction has been a problem for centuries, and some of the most addictive opioids, such as heroin, are completely banned or available only in tightly restricted circumstances for conditions such as pain from terminal cancer. One of the contributors to the current crisis of opioid addiction was regulatory failure. During the 1990s, new opioids such as Oxycontin were developed which were mistakenly believed to be less addictive. The FDA licensed these drugs without adequate testing and allowed manufacturers to make unsupported claims that they were safe and effective. The result was large-scale overprescribing, which contributed to an epidemic of addiction and overdose deaths. Opioids play an essential role in managing some forms of acute and chronic pain, so simply banning them was not an option. Instead, medical and pharmaceutical boards have had to educate doctors and pharmacists on responsible prescribing practices and monitor individual doctors for potential abuse.

Lobotomy is often compared to gender affirming medicine. Lobotomy is a surgical procedure which severs the connections between the frontal lobe and other parts of the brain. It was used to treat patients with violent psychotic symptoms. At the time, the only treatment option for severely disturbed patients was physical restraint in straitjackets or padded cells. Lobotomy made many patients calmer and allowed them to be discharged from hospital and returned to their families. At the time, it seemed like a major advance and its inventor received the Nobel Prize for Medicine. Unfortunately, it also left many patients with severe mental impairments and was often performed without informed consent of the patient.

Lobotomies came to an end through shifting professional consensus. The development of anti-psychotic drugs in the nineteen fifties provided a means for psychiatrists to manage severely disturbed patients without resorting to surgery, the poor results of the procedure became harder to ignore, and by the nineteen sixties lobotomy was discredited and abandoned. States acted to restrict the use of lobotomy by adopting more stringent protections against surgery without consent or banning the procedure entirely, but legal action followed the change in professional consensus.

The Crisis in Gender Medicine

Supporters of the gender-affirming model decry the politicization of medical care, which they say has occurred over the last 5 years as Republican-controlled states in the U.S. have passed laws banning medical transition for minors. In fact, gender medicine was politicized more than a decade ago. It escaped public notice because the political pressure was exerted through the internal politics of professional associations, universities and government agencies rather than through the legislature.

The Health and Human Services literature review explained how this happened. Gender dysphoria was a rare condition and policies were referred to specialist committees. This made it easier for political activists to take over the agenda. The campaign to expand access to medical transition was presented as an extension of the campaign by lesbians and gays for depathologization of their sexual orientations and an end to conversion therapy. The issue has become one of human rights. Being a good ally to an oppressed community was more important than scientific rigour. Transgender activism paralleled the rise of Queer theory, critical race theory and intersectionality in the academic world, which were all ideologies hostile to the scientific method and free discussion.

Concern over politicization of the debate over medical transition is not new. In 2002 psychiatrist Stephen Levine, who had worked on the early standards of care for gender medicine, resigned from the Harry Benjamin International Gender Dysphoria Association (later WPATH) because of his concern that the group had become dominated by politics and ideology. In In 2015 psychologist Kenneth Zucker was fired from his position as head of the Child, Youth and Family Gender Identity Clinic in Toronto as a result of pressure from activists who disagreed with his cautious approach. In 2017, Zucker was invited to speak at a WPATH conference but was shouted down by transgender activists. Conversion therapy laws, which originally applied only to sexual orientation, were extended to include gender identity and used to intimidate health care providers who disagreed with the activist driven affirming model.

The framing of gender-affirming care as a human rights issue explains why the scandal has been so hard to unravel. Typical medical scandals are sustained by self-interest; gender medicine is sustained by self-righteousness. Big pharma and influential surgeons can wield a great deal of power, but they have never been able to count on the support of mobs of outraged undergraduates.

Working within the system to get change is hard. Professional associations are nominally accountable to their members but, in practice, the incumbent leadership exerts tight control over who and what the members can vote on. Pediatrician Julia Mason discovered this when her attempts to introduce a resolution calling for the American Academy of Pediatrics to conduct a systematic review of the evidence supporting pediatric medical transition were blocked.

The campaign for legislation to restrict medical transition of minors, which began around 2019, did not politicize the debate but simply moved what was already a political debate into another forum. Legislative involvement is justified because the leaders of the medical profession owe their positions of power to the legislation which requires doctors and other health care providers to be licensed. If the profession misuses this power, the legislature has a responsibility to intervene. Politics should be kept out of the medical consulting room, but when doctors prioritize the agenda of a pressure group over science and clinical judgment informed by debate, they are acting like politicians without the accountability through elections.

In the case of medical transition for children and adolescents, there is a compelling need for legislative intervention. Children and adolescents are being permanently harmed by treatments that are supported only by low-quality evidence of benefit and have substantial risks of harm. The medical establishment shows no signs of self-correcting. With adults, the political case is weaker. Many of the conservative politicians who have supported pediatric treatment bans remain strong supporters of the principle of respect for individual autonomy and are distrustful of government intervention in general. The evidence on adult transition is not quite strong enough to overcome these objections.

What Can Be Done?

While there is little political will to ban medical transition for adults, there are things that can be done to improve the overall situation. One is to cut off public and insurance funding for medical transitions. Respect for individual autonomy is a strong argument for not banning medical transition. However, there is no case, based on liberal principles, for requiring taxpayers or premium payers to fund treatments which do not meet the test of medical necessity. Public health insurance plans are intended to ensure equal access to health care, but treatments that are intended to fulfill self-determined embodiment goals and gender euphoria do not meet the ordinary definitions of health. The Trump administration seems to be moving in this direction. It would cut off funding for gender transitions for adults in federal prisons and the military. Congress has just voted to ban the use of Medicaid funds for hormones and surgeries.

Meanwhile, Texas has passed a law that requires insurance companies which fund gender affirming surgeries to also cover the procedures associated with complications and the desire to detransition. The theory is that requiring insurance companies to pay all of the ongoing costs associated with medical transition will encourage them to be more careful about approving coverage in the first place.

Other states have passed laws that extend the statute of limitations or otherwise make it easier to sue gender clinics for negligence. Once again, the hope is that fear of lawsuits will encourage doctors and their insurers to be more cautious.

However, banning or discouraging harmful and ineffective medical transition does not solve the basic problem of what to do for people experiencing gender related distress. There are three major obstacles to providing better mental health support for gender dysphoria.

One is conversion therapy legislation, which has been used to discourage therapists who do not support the gender affirming model from working with gender dysphoria at all. The legislation is often reinforced by internal policies of professional associations and hospitals.

The cost of psychotherapy is another obstacle. Prescriptions for hormones, and the associated lab tests, are not cheap, but they are considerably less expensive than weekly psychotherapy sessions. If health insurance provides coverage for prescriptions but limited or no support for psychotherapy, there may be a strong financial incentive to try medical transition.

The third and largest problem is the lack of qualified therapists. Most therapists fall into one of two categories: those who trained more than 10 years ago when gender dysphoria was extremely rare, and those trained in the last 10 years who have been indoctrinated in the affirmation-only approach. This is part of a larger problem of the education of therapists being taken over by critical theory which is an ideological project which sees all human relationships in terms of power dynamics. These changes took place over many years and it will take years to roll them back. There is very little that legislative action can do here.

If the leaders of the medical mental health profession are serious about getting politics out of medicine, they need to start by ending influence of political ideology in medical education. Meanwhile, the very limited restrictions that some states are placing on medical transition of minors are fully justified.