Moving the Goalposts on Gender Medicine

Florence Ashley on Gender-Affirming Care as a Medical Right

First, let me introduce myself. I have decided to drop the handle I pulled out of the air nearly five years ago when I set up a new X/Twitter account and publish under my real name. I recently co-authored an article along with Dr.  Joanne Sinai on the effect of conversion therapy legislation on psychotherapy which has now been published in the Journal of the Canadian Academy of Child and Adolescent Psychiatry. You can read the full article here. Since the article was published under my real name, I decided it was time to publish all of my related writing under my name so people can connect them.

The article discusses the intersection between psychodynamic psychotherapy for gender dysphoria and conversion therapy legislation. Canada has poorly drafted criminal legislation against “conversion therapy” for gender identity which creates a high degree of uncertainty for medical and mental health professionals working with gender related distress. This uncertainty is exacerbated by activists like Florence Ashley who promote definitions of conversion therapy which go well beyond the ordinary meaning of the legislation and would effectively preclude any form of talk therapy that seeks to help patients understand their feelings about sex and gender. Our article argues that professional associations need to reject this over broad definition of conversion therapy and support the right of psychotherapists to offer patients with gender dysphoria a full range of therapeutic techniques.

Ashley has not responded to our article but, by coincidence, the Canadian Medical Association Journal has just published an opinion article by Ashley entitled Gender self-determination as a medical right which exposes the current state of Ashley’s thinking and its underlying flaws.

Transgender Exceptionalism

While many gender-affirming medical professionals are desperately trying to defend gender affirming care as lifesaving, medically necessary evidence-based care in the face of the conclusions of the Cass Review, Ashley takes a different approach and argues that gender affirming care constitutes an exception to the ordinary principles of medical ethics.

Ashley attempts to distinguish between medical autonomy and what Ashley calls “everyday autonomy.”  The principle of medical autonomy, Ashley concedes, gives patients the right to accept or reject a course of treatment proposed by a medical professional but does not give them the right to demand a particular type of treatment. However, Ashley says that the right gender-affirming care is related to “everyday” autonomy which Ashley defines as “a person’s right to decide the shape of the life they want to live.”

This distinction cannot be justified. There is nothing exceptional about medical autonomy. It is simply an application of the general right of individuals to have their bodies protected from outside interference without their consent. The right to security of person is strongly protected by law and may be infringed upon only by due process of law. It is a negative right which makes only minimal demands on other people.

However, the right to “decide the shape” of one’s life is highly contingent. It is constrained, for example, by the limits of one’s body, financial means, place of residence, family circumstances and the expectations of society. In the case of transgender people, their chosen way of life may require large sums of money to pay for medical and surgical procedures and significant accommodations from other people to see and accept them the way they want to be seen.

The four principles of medical ethics developed by Beauchamp and Childress include, in addition to autonomy, non-malificence (do no harm), beneficence (do good) and justice but Ashley disregards the last three principles. Beneficence and non-malificence require doctors to weigh the evidence to decide whether treatments do more harm than good, but there is no place for evidence-based medicine in Ashley’s view of gender-affirming care.

To Ashley, the Cass Review and the various systematic reviews which have found the evidence that gender-affirming care does not lead to improved mental health are irrelevant because Ashley does not regard improved mental health as the goal of gender-affirming care. Gender identity, Ashley claims, is not pathological and the sole objective of gender-affirming care is to enable individuals to achieve self-determined embodiment goals. Ashley also attempts to compare gender affirming care to abortion and contraception on the basis that they also promote goals other than better health.

These arguments have been developed by Ashley in other articles and they are comprehensively refuted in a recent paper by Moti Gorin. Ashley insists that gender incongruence is not, in itself, a pathology. The problem Gorin points out is that if gender incongruence is not a pathology, then medical doctors have no business intervening with the bodies of transgender people. The approach to gender-affirming procedures, which groups such as WPATH have traditionally promoted,  agrees that gender incongruence is not a pathology but that it is associated with psychological conditions such as dysphoria, depression and suicidality. Gender-affirming treatments are promoted as a means of relieving these conditions.

However, in order to be ethically justified in offering these treatments, doctors must first establish a  differential diagnosis and satisfy themselves that the course of treatment is likely to improve the health of the patient and that the benefits outweigh the potential harms. The practices that Ashley decries as gatekeeping and barriers to care are, in fact, an essential part of competent and ethical care for gender-diverse people.

Gorin also shows that Ashley’s analogy between gender-affirming care and contraception or abortion is based on a false premise. Carrying a pregnancy to term and giving birth carries substantial risks, particularly for very young women, Therefore contraception and abortion can be justified under a conventional definition of health.

 By contrast, gender-affirming care, absent pathological distress, is more closely analogous to cosmetic procedures. Ashley does not shy away from this comparison and has written about gender-affirming care as the pursuit of “embodiment goals” and the body as a “gendered art piece.” If gender-affirming procedures are acknowledged to be essentially cosmetic, two further difficulties arise. The first is that unlike ordinary cosmetic procedures, gender-affirming treatments remove functioning organs and can lead to sterility and loss of sexual function. The other is that cosmetic procedures are generally not covered by public or private health insurance. Ashley does not make a convincing case as to why, if you exclude any element of pathology or distress, the principle of justice would permit special treatment for gender-affirming care.

Gender Self-Determination As a Right

Ashley cites the Yogyakarta Principles as the basis for the right to gender-self determination. This is a statement created by an international conference of human rights experts in 2007. A supplemental Yogyakarta Plus 10 statement was issued in 2017. The principles are simply a statement of opinion and do not form part of international human rights law. The group that created the principles had no official status and the principles have never been approved by the United Nations General Assembly. 

The principle of gender-self determination set out in the Yogyakarta principles has been widely criticized by advocates for women’s rights. Professor Robert Wintemute, one of the signers of the original principles, has since spoken out against the principle of gender self-identification. These concerns are shared by Reem Asalem, the United Nations Special Rapporteur on violence against women and girls.

Furthermore, the Yogyakarta principles are addressed to states and are not helpful on questions of clinical judgment. They propose a definition of gender identity which raises as many questions as it answers:

Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The definition combines purely subjective feelings with superficial social stereotypes. The term gender is not defined. It is of no assistance to a clinician who needs to decide whether the desire of an adolescent with multiple neurodevelopmental and mental health issues for medication which will permanently impair their fertility, sexual function and general health is in fact “internal and deeply felt.” Medical decisions need to be guided by clincial judgment and scientific evidence, not ill-defined concepts of rights.

Unwarranted Presumptions

Ashley argues that gender-self determination, and therefore the right to gender-affirming care, is a “presumptive right.”  In law, a presumption is something that is assumed to exist unless it is displaced by other evidence. Ashley argues that the burden of justifying barriers to care should fall on health care providers who erect them.

The presumption Ashley refers to does not exist. Good medical practice requires that the proponents of a new therapy prove that it is safe and effective. This has never been done in the field of pediatric gender medicine for gender affirming care. The whole gender-affirming treatment model for children and adolescents is based on a single low-quality study from the Amsterdam clinic. Subsequent studies have not improved the evidence base. The systematic reviews commissioned by the Cass Review as well as all earlier reviews consistently found that the evidence of the benefits of medical transition in children and adolescents was low or very low certainty. This is not simply a matter of the absence of randomized control trials. Even the existing observational studies are low quality.

Medical transition occupied the field of treating gender-related distress in young people, to paraphrase James Cantor, without evidence and even despite existing evidence. It is not necessary to produce evidence to justify extreme caution in providing treatments with known risks and unproven benefits.

Unfortunate Examples

The two examples that Ashley cites for unwarranted  barriers to gender-affirming care are “the requirement that adolescents prove several years of gender incongruence and rigid age requirements.”

The requirement for adolescents to experience several years of gender incongruence is found in WPATH SOC8 and Ashley says that this requirement “is not grounded in evidence.” This article was completed before the recent revelations from the Alabama litigation which make it clear that absolutely nothing in the WPATH SOC8 is grounded in evidence and that the WPATH guideline development team blocked publication of systematic reviews they had commissioned when the results did not support their preferred views.

Ashley does not cite a specific source for the “rigid age requirements.” WPATH removed the age requirements for hormones and all surgeries except phalloplasty from SOC8 as a result of pressure from United States assistant secretary of health Rachel Levine and others. Ashley argues that age requirements lack “empirical evidence and does not take into consideration differences in youths’ cognitive and emotional maturation.”

In fact, empirical evidence has found that cognitive and emotional maturation continues well into the twenties. Even young adults may lack the capacity for risk assessment and long-term thinking necessary to appreciate the lifelong consequences of gender affirming care.

The mature minor doctrine which Ashley refers to does not assist their position. It was developed in the context of a conventional medical model in which a doctor makes a diagnosis and recommends a treatment. In the supplemental materials to the article Ashley refers to the Supreme Court of Canada decision in A.C. v. Manitoba (Director of Child and Family Services) as the basis for the mature minor doctrine in Canadian law. The facts of this case concerned providing blood transfusions to a child experiencing severe gastrointestinal bleeding as a result of Crohn’s disease. The principles of law applicable to this type of fact situation cannot reasonably be extended to permit children to chose treatments with serious life-long consequences solely to fulfill self determined embodiment goals.

Sarah Jorgensen and Céline Masson argue that medical decision making for minors need to respect the child’s right to an open future. This means preserving the maximum possible range of options for a child when he or she becomes an autonomous adult. Puberty suppression and cross-sex hormones foreclose the possibility of having biological children and a satisfactory sexual relationship at an age when a child is incapable of understanding the significance of these choices. 

Conclusion

The medical model of gender-affirming care supported by Ashley is quickly unravelling. It should have been clear from the beginning that undertaking radical and invasive treatment on vulnerable children and adolescents, with little supporting evidence, would not end well. It is not ending well for growing numbers of detransitioners. Canadian medical leaders need to pay less attention to activists like Ashley and more to experienced clinicians like Hilary Cass and the growing numbers of professionals who are prepared to risk sanctions and censure to speak out against a growing medical scandal.