The Lawsuits Begin

How will a $2 million verdict in New York affect gender medicine?

Photo by Tingey Injury Law Firm on Unsplash

A court case brought by a detransitioner in New York is being heralded as the beginning of the end for pediatric medical transition in the United States. While the decision is certainly significant, its long-term impact remains in doubt.

The case has received little coverage in the mainstream media, and the court records have been sealed. The main source of information is an article by Benjamin Ryan, who attended the trial. He also obtained some court documents before the records were sealed and posted them on his Substack. The facts are sadly typical of many detransition stories. The plaintiff is a young woman who cycled through multiple mental health challenges including anxiety, depression, eating disorders, autism and body image issues. At sixteen, she began to identify as male and her psychologist referred her for a double mastectomy. According to her mother, she began to experience regret as soon as the bandages came off. Her mental health worsened and she began to cut herself. At 19 she detransitioned and sued both the psychologist and the plastic surgeon. A jury found both defendants had been negligent and awarded the plantiff damages of $400,000 for future medical care and $1,600,000 for pain and suffering.

The case was decided in New York, where the state government is strongly supportive of pediatric gender medicine, in a county that is considered part of the Democrat firewall. The verdict serves as a warning to both medical professionals and politicians that public support for their approach to gender medicine is not strong. Most providers have a strong ideological commitment to their work. In many states, they can still look to political support to mitigate the risk.

According to Ryan, there are at least 30 detransitioner lawsuits pending before American courts. Many commentators have claimed that this decision is the start of a tidal wave of cases that will end pediatric gender medicine. However, there are reasons for caution. The typical medical scandal, and when faced with the threat of substantial damage awards and higher insurance premiums, most providers will back down. Gender medicine has become a moral crusade and a human rights issue. Providers, who are often trans identified themselves or have trans identified family members, will fight to continue offering treatments. In many states, they can still count on political support to protect their positions.

The prospect of a multi-million dollar damage claim will deter even the most dedicated ideologues, but the New York judgment will be hard to duplicate in other states. I discussed some of the challenges of suing gender affirming practitioners in a Substack four years ago. Statutes of limitations are normally around 2 or 3 years for medical negligence. This is a problem because detransitioners usually report a “honeymoon period” after they start medical treatment and it takes 4 or 5 years for regret to set in. A lawsuit in California against Dr. Johanna Olson-Kennedy has been dismissed based on the limitation period, but the decision is under appeal. New York has a 2.5 year limitation period but, if the plaintiff is a minor when the claim arose, the limitation period is extended until 2 years after the plaintiff turns 18. These rules will vary from state to state.

A second problem for plaintiffs is that many states have adopted “tort reform laws” which place a cap on the damages that a jury can award for pain and suffering. New York does not have a legislated damages cap, but they are found in many states that strongly favour medical transition. For example, California caps non-economic damages at $250,000 and Colorado has a cap of $550,000.00 which will increase to $1,575,000 by 2029. Massachusetts and Maryland are also pro-transition states with damage caps. Even in states without statutory caps, a trial judge or an appeals court has the power to review and reduce excessive jury verdicts.

The issue of standards of care for gender affirming treatments could pose an even larger challenge. In the New York case, the plaintiff’s lawyers accepted that the test for negligence was the Standards of Care of the World Professional Association for Transgender Health (WPATH) and argued that the psychologist and surgeon who treated the plaintiff failed to meet these standards

The plaintiff submitted an expert report from Dr. Erika Anderson, a transwoman and a psychologist who has been critical of lax standards in gender clinics. Anderson said that according to Version 7 of the WPATH Standards of Care, which were in effect at the time, the pre-conditions for top surgery were a diagnosis of gender dysphoria, receiving “reversible” or “partially reversible” puberty blockers and cross sex hormones, and living in the desired gender for at least a year.

The letter of referral that Dr. Einhorn, the psychologist treating the plaintiff, provided to Dr. Chin, the surgeon, diagnosed the plaintiff with “F40.10 Social Phobia Unspecified and F45.22 Body Dysmorphic Disorder.” The plaintiff had refused to take puberty blockers or cross-sex hormones and her identification as male was uncertain. Indeed, the counsellor at a local LGBTQ+ centre, who had met with the plaintiff, raised doubts about whether she had a sufficiently stable gender identity to justify top surgery.

The diagnosis of Body Dysmorphic Disorder was a key failing in the referral letter. Anderson explained that Body Dysmorphic Disorder is a mental health condition where the patient will “obsess over a minor or non-existent flaw in their physical appearance.” The treatment is psychotherapy and not surgery. By contrast, Anderson explained that Gender Dysphoria is “is psychological distress a person experiences due to the feeling that their gender does not comport with the sex they were assigned at birth.” Treatment is individualized but may include both hormone therapy and surgery. Dr. Loren Schechter, a plastic surgeon and the incoming president of WPATH, confirmed that Body Dysmorphia is a contraindication for plastic surgery and the appropriate treatment is psychotherapy.

While it is possible that the jury in the New York case was influenced by the fact that the plaintiff was diagnosed with Body Dysmorphia rather than Gender Dysphoria, this may be a distinction without a difference. It is arguable that gender dysphoria is simply body dysmorphia focused on sexual characteristics. This leads to the more fundamental question of whether a diagnosis of gender dysphoria is a reliable predictor of a stable transgender identity. Most detransitioners report that they did receive a diagnosis of gender dysphoria but still regret their decision to undergo medical transition.

Anderson also said that even if Einhorn had provided a diagnosis of Gender Dysphoria, he had failed to meet the standard of care regarding informed consent. Informed consent requires that the patient be informed of all the risks of the procedure “including but not limited to the risk that surgery may not alleviate the patient’s feelings of gender dysphoria.” He also failed to discuss alternatives to surgery such as hormone therapy with the plaintiff, inform her that Gender Dysphoria may not continue into adulthood, or inform her of the likelihood of regret.

The evidence also highlights how the fear of suicide has been abused by gender doctors. The plaintiff’s mother testified that Einhorn warned her that her daughter might take her own life if she did not consent to the surgery. Anderson said that Einhorn had inserted himself into the informed consent process with these warnings of suicide. At trial, Shcehter testified that top surgery is not a suicide prevention measure.

It is not surprising that the jury found that both Einhorn and Chin failed to meet the appropriate standard of care. There is a huge gap between what advocates for gender affirming medicine have claimed to be their standards of care and the actual practice in gender clinics. The experience of the plaintiff is typical of practices described by many whistleblowers, detransitioners and concerned parents.

The response WPATH has been to revise its standards of care. Version 8 of the WPATH Standards of Care, which was introduced in 2022, makes the requirements for surgery on adolescents considerably more elastic:

a. Gender diversity/incongruence is marked and sustained over time;

b. Meets the diagnostic criteria of gender incongruence in situations where a diagnosis is necessary to access health care;

c. Demonstrates the emotional and cognitive maturity required to provide informed consent/assent for the treatment;

d. Mental health concerns (if any) that may interfere with diagnostic clarity, capacity to consent, and gender-affirming medical treatments have been addressed; sufficiently so that gender-affirming medical treatment can be provided optimally.

e. Informed of the reproductive effects, including the potential loss of fertility and the available options to preserve fertility;

f. At least 12 months of gender-affirming hormone therapy or longer, if required, to achieve the desired surgical result for gender-affirming procedures, including breast augmentation, orchiectomy, vaginoplasty, hysterectomy, phalloplasty, metoidioplasty, and facial surgery as part of gender-affirming treatment unless hormone therapy is either not desired or is medically contraindicated.

The requirement for a formal diagnosis has been replaced with gender diversity / incongruence which is “marked and sustained over time.” Where a diagnosis is required for insurance purposes, it should be the ICD-11 diagnosis of Gender Incongruence, which has considerably broader criteria than the diagnosis of Gender Dysphoria. There is still a recommendation for 12 months of gender affirming hormone therapy prior to surgery, but this can be omitted if it is not desired by the patient. (This could have covered the defendants in the New York case.)

Version 8 of the WPATH Standards of Care makes it much harder to argue that a doctor or psychologist was negligent in referring any patient for surgery. There is good reason to believe this was intentional. The internal WPATH documents disclosed in the Boe v. Marshall case reveal that WPATH consulted with “social justice lawyers” who wanted the standards of care worded in a way that would assist in litigation. While the main concern at the time was constitutional challenges to treatment bans, it is unlikely that the WPATH leadership was unaware of the impending risk of malpractice claims.

The problem with pediatric gender medicine is not that inadequately trained doctors and psychologists are harming patients by not applying the standard of care. The so-called standards of care are flawed and lack any scientific basis. The inadequacy of the guidelines established by WPATH, the Endocrine Society and the American Academy of Pediatrics have been pointed out by the Cass Review, the Department of Health and Human Services Review and numerous peer reviewed articles.

The law of professional negligence is not designed to fix bad science. Medicine depends on a chain of trust. Practicing doctors need to trust the reliability of the standards of care established by leading professional bodies and academic research. In professional negligence claims, courts rely on the same chain of trust to determine the standard of care a professional is required to meet. Unfortunately, this means that when the chain of trust breaks, as it has in gender medicine, injured patients may not have a legal remedy.

However, other cases are targeting the standards of care in pediatric gender medicine directly. There are at least two lawsuits where detransitioners have named the American Academy of Pediatrics as a defendant on the grounds that its position statement was fraudulent. The Federal Trade Commission and at least 21 states have begun investigations into WPATH and the Endocrine Society. This is new legal ground and it will be interesting to see what the courts make of these claims.

Meanwhile, the consensus in professional associations is starting to shift. The American Society of Plastic Surgeons has issued a position statement recommending against any gender-related surgeries on patients before the age of 19. The statement was not a direct response to the New York case. The ASPS has been reconsidering its position since at least August 2024. It will also have no impact on existing litigation, which depends on the standards of care in effect at the time the treatment was provided.

While the specific recommendations in the position statement are modest, the analysis goes deeper. It explicitly endorses the findings of the Cass Review and adopts the ethical principles proposed by the Department of Health and Human Services Review. It emphasizes that plastic surgery is part of a multi-disciplinary care pathway that includes social transition, puberty suppression and cross-sex hormones. Each step of the pathway is supported by only low or very low certainty evidence and has risks of harm and complications.

The professionals involved in every step of the transition process – teachers, school counsellors, social workers, psychiatrists, psychologists, pediatricians, endocrinologists – all need to reject the ideologically based affirmation model and adopt and evidence based and ethical approach. This will be a slow process. While the American Medical Association has offered a cautious endorsement of the ASPS position, other major medical groups like the American Academy of Pediatrics are not shifting their position. Lawsuits will not change minds but a few more large verdicts will send the message that suppressing dissent carries a cost.