Traditionally, the best respected gender care for youth was provided under the “Dutch Protocol.” The Dutch protocol uses a diagnostic model, whereby a clinician’s job is to decide what care is appropriate. The protocol requires heavy psychological testing and psychotherapy, then perhaps puberty blockers, hormones, or surgeries, depending on what the clinician considers appropriate.
For a long time pretty much everyone in this space was comfortable with the Dutch protocol.
But in the last few years, four things have rocked that consensus:
- The population of children seeking gender-care changed. Numbers have exploded, many more are female-to-male transitioners, and many more have (possibly unrelated) medical disorders.
- Several northern European countries pulled back on what care they provide. They’ve shifted to using more psychotherapy, rather than hormones and puberty blockers, than under the Dutch Protocol. Why? For one thing, medical authorities in these countries cite the change in the treatment-seeking population (which might leave old research outdated) and new data showing that the effects of hormones and puberty blockers are less reversible than previously thought. Perhaps more important, a British attempt to replicate the study that justified the Dutch protocol failed.
- US Republicans proposed bills severely restricting gender-treatment for minors or banning it altogether. Generally, these laws are far more restrictive than restrictions in Europe. At the state level, several have passed.
- In contrast, gender-care organizations and physicians have become much less restrictive in their recommendations for treatment – new WPATH Standards of Care depart from the Dutch protocol with faster application of hormones and blockers. Broadly, WPATH has moved to an informed consent model, where clinicians inform patients of treatments’ expected consequences, rather than determine what treatments are appropriate.
To me it is unclear whether the Americans or the Europeans have the better of the argument. I see two biases that should counter-act.
- The general small-c conservatism of the medical profession, codified in the “do no harm” principle.
- The tendency in medicine to obfuscate about trans issues in support of progressive agendas.
These are both pretty well documented biases of medicine.
That means doctors might be under-treating: when they don’t have much evidence either way on whether a procedure is good, they default to doing nothing (especially in Europe), even though a priori there’s little reason to think that abstaining from treatment is better. There’s the classic joke that doctors would need an RCT to say that parachutes prevent injuries when jumping out of planes.
But they might be over-treating: they tend to see the evidence for gender-related care as much stronger than it really is. Honestly, the standards for publishing in this field really do seem to be out of step with the rest of medicine, and there is a broad tendency to overstate conclusions.
So I personally have no strong opinion on who is right.
Well, the Republicans are wacky. But anyone else might be right.
Jesse Singal thinks the Americans are wrong and that this is a big problem. Obviously, the Republicans agree with him on that point, and go far beyond agreeing with him on other points.
The only thing I will add to the conversation is that this is something that the medical malpractice bar is well-suited to resolve. Any possible negligence has an identified actor, identifiable actions, and concentrated harms that make natural plaintiff parties (de-transitioners).
So, this is debate doesn’t need to happen in public.
Basically, a bunch of de-transitioners are going to sue the doctors who administered their transitions. As long as these claims reach juries, a bunch of these suits will succeed (juries are random). So, doctors will get punishing lawsuits (and punishing insurance premia) if Singal is right and they’re prescribing blockers/hormones/surgeries too aggressively. They will change their behavior accordingly. These suits are already happening, and people think it might change doctors’ behavior.
It’s not that courts will do a good job sorting out which doctors were too aggressive. It’s just that overly aggressive treatment will create a lot of de-transitioners, who are the people with grounds to sue. So, more aggressive care means more suits. Regardless of how smart the courts are, overeager practices won’t be commercially feasible in the long term
So the important question is whether plaintiffs can reach juries in medical malpractice suits.
That means, the key question is whether plaintiffs can argue that physiciams failed to meet the standard of ordinary care. The standard for medical malpractice is the same as the standard for ordinary negligence, and applies when defendants were using specialized knowledge or acting in a medical capacity.
Usually, that means plaintiffs must show clinicians didn’t meet “standards of care.” That means that doctors are fine if they exercise the usual judgment for a normal doctor with their qualifications. If plaintiffs can substantiate a claim that that a clinician didn’t follow the standard of care and this caused them harm, then they can get in front of a jury (and win some random percentage of the time).
But doesn’t that leave doctors immune to suit if they follow the WPATH standards of care? Not necessarily. Standards of care only provide immunity to defendants when they represent medical consensus. WPATH standards might be too contentious to meet that bar. However, defendants do have some protection when their behavior has majority support, or that of a respectable minority.
So an important question for plaintiffs is how courts treat the WPATH standards of care.
Courts have differed. Some consider it to largely reflect medical consensus. Others treat it as essentially just advocacy. As WPATH standards depart from older standards and from the European consensus, it’s probably become harder to use them defensively in court.
So it seems that plaintiffs should be able to state a claim, especially when doctors depart from the Dutch Protocol. Depends on the judge.
In general this is all very murky, and that means more claims will go to juries. It’s hard to establish “ordinary care” standards in gender care, because we don’t even know what the clinics are doing. Clinics are incredibly cagey about revealing their practices. That’s understandable given Republican pressures, but it means claims are less likely to be shut down by a judge – they don’t have the grounds to keep things from juries.
The upshot is that the debate over appropriate care for gender dysphoric minors need not happen in the court of public opinion. It will be resolved in the actual courts. The only reason to listen to Singal and the Europeans is if you’re concerned that the courts will move too slowly and and there’ll be collateral damage in the meantime. Eh.