The Vanishing Legal Case for Pediatric Gender Medicine

Trans rights lawyers have been shedding troublesome arguments for years, relying more and more on the gravitas of WPATH. Oops!

In 2007, Laura Edwards-Leeper and Norman Spack opened America’s first child gender clinic, GeMS (Gender Management Service). 

Key tenets of that Boston church, as I wrote last week:

1. Transgender is a broad concept that includes all children who are “gender nonconforming.”

2. If a kid is transgender and wants to transition, they should be given puberty blockers ASAP so they can pass as the opposite sex later in life.

Those tenets still seem to guide gender doctors’ practice today. But they don’t talk about it in court. At the 2022 trial in Brandt, about Arkansas’ ban on pediatric gender medicine (PGM), gender doctors distinguished trans kids from gender-nonconformers and didn’t make a peep about passing.

I’ve long suspected that the Brandt gender doctors based their testimony on a legal strategy concocted with the ACLU, which represented the plaintiffs, rather than on their actual beliefs and practices. I now feel comfortable speculating about that sort of unethical behavior — you’ll see why in a moment.

“Gender nonconformity” and “passing” aren’t the only verses that have disappeared from the gender catechism lately. Lawyers have also quietly erased surgery, declining to contest that piece of some states’ bans for minors. This week they lost the authority of their medical guidelines, arguably the spine of their legal case. And they’re probably about to lose some people: expert witnesses, elite lawyers, and the trans allies over at the US Department of Justice.

In this post I’ll run down this week’s revelations. Then I’ll tally everything the trans rights lawyers have lost and ask: what do they even have left?

WPATH Exposed (Again)

What distinguishes a gender clinic from a tattoo parlor is medical standards. Gender doctors don’t just do whatever patients tell them to do; they obey guidelines formulated in strict accordance with scientific protocol, informed by systematic reviews of clinical research, that aim to relieve distress associated with Gender Dysphoria.

Well, that’s the theory.

The guidelines come from an organization called World Professional Association for Transgender Health (WPATH). The most recent edition is known as Standards of Care version 8 (SOC8). A month after its publication in September 2022, PGM went to trial for the first time – Brandt. The Brandt lawyers battled over whether puberty blockers, hormones, and mastectomies were “medically necessary” and safe for “gender dysphoric” minors.

The plaintiffs, represented by the ACLU and others, argued that they were. They cited SOC8. This persuaded the judge, who ruled that Arkansas’ attempt to deprive “transgender” minors of PGM violated the US Constitution.

Similar lawsuits are now proceeding in over a dozen states. To defend its law, Alabama’s attorney general subpoenaed WPATH’s internal records of how it drafted SOC8. The result became public this week: torrents of emails between the gender doctors who drafted SOC8. 

For details, check out reporting by Jesse Singal, Benjamin Ryan (more), and LGBT Courage Coalition. The upshot is, SOC8 cannot now be called scientific. The drafters plotted to use SOC8 to win lawsuits, influence policy, and score insurance coverage. They were swayed by a government official, MTF Rachel Levine. And they shut down research that reached conclusions they didn’t like.

The only pushback I’ve seen is from the GeMS doctor Amy Tischelman, who insisted to Ryan that she didn’t say something … which a video clearly shows her saying. These people have nothing. Gender clinics are tattoo parlors.

Plaintiffs fighting PGM bans now have to argue that going to a tattoo parlor is a constitutional right. For children. Well, transgender children. That adjective changes everything. Now, how to define transgender …

Transgender Kids are Kids Who Say They’re Transgender

Spack and Edwards-Leeper believe that gender-nonconforming kids are transgender. By that, they mean children who play with toys and prefer to wear clothing associated with the opposite sex. This theory is sexist and homophobic (considering that kids like this often grow up to be gay) but it’s coherent. You can think of children you’ve known and identify which ones are “transgender” under this paradigm.

Spack and Edwards-Leeper authored seminal papers from 2012 to 2016, Spack became a Ted-talking gender guru, and Edwards-Leeper chaired the committee that drafted SOC8’s adolescent chapter. They seem to be relevant. Yet expert witnesses don’t sound anything like them in court. 

Instead, gender doctors testify that kids are transgender if they say they are the opposite sex. In Brandt, the psychiatrists Jack Turban and Dan Karasic were careful to argue that gender nonconformity did not make a kid trans.

This vision of trans is very austere and almost circular. I think the lawyers structured the case this way to protect their expert witnesses from cross-examinations that would reveal how regressive their gender theories were. (The parent-plaintiffs, on the other hand, did testify about their kids’ sex-atypicality. This was safe; Arkansas’ lawyers couldn’t grill them on gender theory because it would come off as bullying.)

The experts could back up their baffling “kids are trans if they say they’re trans” theory by citing SOC8, which was published a month before the trial began. (WPATH rushed it to press.) Though previous writing by gender doctors had routinely used the term “transgender and gender nonconforming” (TGNC), SOC8 ditched it for “transgender and gender diverse.” Emphasis added:

“The decision to use transgender and gender diverse resulted from an active process and was not without controversy. Discussions centered on avoiding over-emphasis on the term transgender, integrating nonbinary gender identities and experiences, recognizing global variations in understandings of gender, avoiding the term gender nonconforming, and recognizing the changing nature of language because what is current now may not be so in coming years.”

SOC8 continued to use GNC in some contexts, but not in the chapters on children or adolescents.

In Brandt, Arkansas deposed two local gender doctors who treated minors. When asked what condition they were treating, they each answered “gender nonconformity.” At trial, they both changed their testimony to “gender dysphoria.” If the ACLU lawyers told them how to testify, they violated attorney ethics.

OK, so transgender kids aren’t GNC. The boys aren’t feminine, the girls aren’t masculine. They’re just kids who say they are the opposite sex. If a boy says he is a girl, why do we need to block his puberty?

Passing Is Not a Goal of Blocking Puberty

Spack and Edwards-Leeper encouraged their peers to administer blockers ASAP so that their patients would resemble the opposite sex as adults. This concern is all over their writings and Spack’s Ted Talk. 

But in Brandt, as I wrote last year:

The plaintiffs never argued that trans kids should be permitted to medicalize young because it would help them disguise their sex later in life. … Instead, they argued that trans kids needed to medicalize young for the sake of their short-term mental health.

I imagine the plaintiffs eschewed talk of passing because no trans person can pass in all settings, and some trans people can’t pass in any settings. So the plaintiffs would wind up arguing that passing is important enough to justify striking down a law, but failing to pass is an OK way to live too. Trans men who are 5-foot-9 need the right to pass, but 5-foot-1 trans men should medicalize even though they can’t pass. … The topic of passing is fundamentally gritty and down to earth, where contradictions are easy to spot. The plaintiffs were better off keeping the testimony up in the clouds, floating on abstract concepts like “gender identity” and “alignment.”

SOC8, that conveniently-timed document, backed up the expert witnesses:

“In general, the goal of [blockers] in TGD adolescents is to prevent further development of the endogenous secondary sex characteristics corresponding to the sex designated at birth. Since this treatment is fully reversible, it is regarded as an extended time for adolescents to explore their gender identity by means of an early social transition. Treatment with [blockers] also has therapeutic benefit since it often results in a vast reduction in the level of distress stemming from physical changes that occur when endogenous puberty begins.”

Is there evidence that puberty blockers serve “trans” kids’ mental health? In Brandt, the gender doctors testified they worried about their patients committing suicide – but they didn’t cite formal research. Now that the 2024 Cass Review has debunked the mental health argument, the plaintiffs’ lawyers rationale for blocking children’s puberty is down to a thread.

But surgery for trans-identified minors is medically necessary, right?

Minors Do Not Need Surgery

Plaintiffs have quietly ceded the bans on youth surgery in at least two states, Florida and Alabama.

After HHS official Rachel Levine’s influence over SOC8 became public this week, the White House stated that it “does not support surgery for minors.” (I surveyed the Biden administration’s past statements in legal filings and found that it actually had always dodged the issue.) As we know from the unsealed emails, these people all huddle together.

Youth mastectomies and vaginoplasty are in fact unsavory. Erasing surgery solves that problem and is probably a good move politically. If there’s one thing that could save Joe Biden right now, it’s denouncing child castration.

But in the logical arena of litigation, denouncing child castration raises difficult questions. For example, if 16-year olds can live without surgery, why can’t they live without cross-sex hormones? 

Or:

Gender doctors have argued that vaginoplasty is best performed a year before college, so that afterward the patient can dilate the wound multiple times a day in privacy rather than in a shared dorm. And gender doctors have argued that mastectomies make trans-identified girls better able to perform at school and at work. So why deny 16-year olds optimal care? You know how to identify truly trans kids, right?

But I’m going too deep in the weeds. The reality is, the plaintiffs have a buffet of distinguished psychiatrists, endocrinologists, and pediatricians testifying as experts in support of their claims. That makes a huge difference to judges.

Expert Witness Death Pool

The psychiatrist Aron Janssen, who co-authored the SOC8 chapter on children, serves as an expert witness in PGM lawsuits in Alabama, North Carolina, Tennessee, and Texas (possibly more). He submits reports that typically include a paragraph like this:

“The SOC 8 is based upon a rigorous and methodological evidence-based approach. Its recommendations are informed by a systematic review of evidence and an assessment of the benefits and harms of alternative care options ... SOC 8’s recommendations were graded using a modified GRADE (Grading of Recommendations, Assessment, Development, and Evaluations) methodology considering the available evidence supporting interventions, risks and harms, and feasibility and acceptability.”

The unsealed WPATH emails show that none of this is true. WPATH suppressed systematic reviews, abandoned GRADE, summarily rejected “alternative care options” as “conservative,” and avoided dealing with the risks and harms of gender medicine.

So Janssen lied. Why should the judge believe anything he says? 

Other gender doctors were disgraced earlier this year by leaks contained in “The WPATH Files.” For example, the psychiatrist Dan Karasic, another frequent flier on the PGM expert circuit, advised his peers on how to trans patients with multiple personalities. (Though apparently that leaked in 2017 and no one raised it at the Brandt trial.)

But the plaintiffs’ phalanx of brilliant lawyers can spin this all away, right?

Lawyer Death Pool

When the lawsuits started flying a few years ago, PGM was represented by a dream team that included major commercial law firms and elite civil rights lawyers with sterling reputations. Now a few of those players are starting to limp, and they might leave the game entirely.

1. Some plaintiffs’ lawyers are implicated in the WPATH scandal.

This week’s unsealed emails reference “social justice lawyers” and “Chase [Strangio] and the legal team.” For example, when arguing against an evidence-based approach to making recommendations:

“Our concerns, echoed by the social justice lawyers we spoke with, is that evidence-based review reveals [there is] little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.”

In Alabama’s words, “WPATH engaged a legal review team, which included one of Plaintiffs’ lead attorneys, to review SOC-8 before it was published.”

Edit July 1, 2024: Based on later-filed documents, it appears this SOC8 reviewer was Jennifer Levi of GLAD. WPATH also considered sending the draft to the ACLU, Lambda, and TLDEF; it’s unclear in the public documents whether WPATH followed through.

If the plaintiffs’ lawyers in this case – or any of the PGM ban cases – worked on SOC8 or fielded questions from SOC8’s authors about how it could be used to win lawsuits, then they knew SOC8 was not a scientific document. Any time they described it that way, or filed a report by an expert witness who did, they were engaged in unethical behavior.

Alabama discussed some WPATH emails in its recent filing. They show that the Plaintiffs filed a misleading expert report:

“Asked to endorse a critique of Alabama’s law—authored by Plaintiffs’ ‘misinformation’ expert Dr. [Meredithe] McNamara and relied on by Plaintiffs at the [preliminary injunction] hearing—WPATH initially noted its disagreement with the document’s strong implication that genital surgeries were not provided to minors. The sponsor replied: ‘After consultation with those involved in the Alabama lawsuit, the consensus appeared to be that quoting the standards of care’—and omitting facts about the actual provision of surgeries to minors—’would be most helpful for the case.’”

If “those involved in the Alabama lawsuit” included the plaintiffs’ lawyers – or if those lawyers directed the strategy that its witnesses relayed to WPATH – that means the lawyers knew they were relying on a misleading document.

2. Some plaintiffs’ lawyers are already under investigation.

Last year a panel of federal judges found that 11 PGM plaintiffs’ lawyers had “purposefully attempted to circumvent the random case assignment procedures” of two federal districts of Alabama. Many of them are leading figures in the movement, like the ACLU’s James Esseks, GLAD’s Jennifer Levi, and NCLR’s Shannon Minter.

Another judge is now deciding sanctions. He found evidence suggesting several of them (including Esseks) may have orchestrated a cover-up of that original misconduct, so he’s currently investigating that. A 12th attorney is facing perjury charges stemming from the investigation; she now works at the US Department of Justice’s Civil Rights Division (last time any reporters tried to confirm), which is another hotbed of trans advocacy.

It’s highly unlikely the lawyers will be suspended from practice. But the stench of the charges could lead other attorneys to distance themselves. Such as …

3. Biglaw attorneys are probably starting the slow fade.

Trans litigation is buoyed by major commercial law firms high on the opportunity to perform glamorous “pro bono” work that doesn’t jeopardize the interests of their paying clients. The partners at these firms are probably recoiling at the drama in Alabama. Expect to see them low-key dial back their investment in the campaign to block gay kids’ puberty.

4. The Department of Justice is about to transition.

The Supreme Court takes the US Solicitor General so seriously that the lawyer occupying that office is known as “the tenth justice.” Even justices who don’t like the president tend to respect the SG, who is usually a former Supreme Court clerk.

The SG works in the Department of Justice and is appointed by the president. These days the DOJ is aligned with the ACLU on gender. Not only has it filed a million amicus briefs in PGM lawsuits, but it has intervened and made the US a party to the action in Alabama and Tennessee.

The Supreme Court announced this week it will hear oral argument regarding an early-stage motion in the Tennessee case. The SG will argue on the side of the plaintiffs – unless oral argument is scheduled after January 20, 2025, in which case DOJ will almost certainly be run by a Republican.

What’s Left?

The tagline of this newsletter is “How does a movement win in court when the facts are against it?” If I had to give a one-word answer after all these posts, it’s “‘science.’” In scare quotes, of course. Many judges cling to expert authority in confusing cases, discarding their own common sense and logical reasoning skills. Where the experts disagree, the judge takes the one who seems to represent the view more popular among scientists.

So the demise of WPATH’s image as a scientific authority is huge. But the PGM plaintiffs aren’t totally bereft.

The lawyers seem to be loaded. Lambda Legal just announced a plan to “grow its legal team by 42%.” The ACLU is bankrolled by the notorious Jon L. Stryker, who donated $15 million in 2021. That means they’ll keep going to trial rather than quietly settling, and appealing instead of slinking away from losses.

Two federal appeals courts — the 4th Circuit and the 9th Circuit — have held that “transgender status” is a “quasi-suspect classification.” This basically makes it hard for states to pass laws related to trans-identified people, like PGM bans. But the Supreme Court will likely review that question in the Tennessee case, and I predict it will overrule those courts.

Some gender doctors will continue to testify. They hold genuine medical credentials. But they will face harsher cross-examinations and more skepticism when they riff about all the anonymous patients they’ve supposedly worked miracles on.

WPATH is not the only source of trans medical guidance. Plaintiffs will lean more on the Endocrine Society’s 2017 Guideline. But it cites WPATH. As for the American Academy of Pediatrics, it was also disgraced in this week’s unsealing.

Gender dysphoria is listed as a condition in the American Psychiatric Association’s DSM-5. That makes it hard to argue that gender identity theory is total bullshit. But the DSM-5 doesn’t recommend treatments.

Trans-identified kids and their parents won’t snap out of it because of unsealed WPATH emails in Alabama. They’ll keep testifying. The spectacle will become more and more awkward.

Liberal judges will #resist for a few years, as we saw in Arkansas and Florida, meaning that PGM bans might make a few trips to the Supreme Court.

I’m feeling confident that the PGM bans will stand in the 25 states that passed them (by my count, only six of those are currently enjoined). The question is how we’ll root it out in the blue states.

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