‘Damning’ Information About Trans Medical Group Expected To Reach Supreme Court, as Justices Consider Challenge to Ban on Gender Treatments for Minors

Unsealed internal communications from the trans medical organization WPATH will likely undermine pediatric gender-transition treatment in litigation, including a Supreme Court case.

Paul Morigi/Getty Images for PFLAG National
A report by the psychologist James Cantor finds that Admiral Rachel Levine, center, the assistant secretary for health at the Department of Health and Human Services, pressured the World Professional Association for Transgender Health to remove age restrictions on pediatric gender-transition treatment. Paul Morigi/Getty Images for PFLAG National

The World Professional Association for Transgender Health, a 44-year old medical group, has for years been at the forefront of promoting and defending access to gender-transition treatment for minors. Amid a burgeoning storm of litigation over these controversial and politicized medical practices, though, the organization’s leaders now find that their own words threaten to undermine this mission.

Last month, a federal court began unsealing an abundance of subpoenaed internal communications among top members of the group, known as Wpath.  The documents concern Wpath’s recent revision of the chapters in its trans-medical-care guidelines concerning pediatrics, or medical care for children and teens. At stake is the credibility of these widely observed protocols for treating gender-related distress in minors with puberty blockers, cross-sex hormones, and sex-trait modification surgeries.

The unsealed documents indicate Wpath leadership caved to political pressure from outside groups and quietly crafted its pediatric guidelines with the intent of influencing public policy. Wpath leadership also balked at the potential publication of research findings the organization had commissioned that its leadership believed might negatively impact access to gender-transition treatment. 

Wpath’s once-secret maneuverings, now laid bare, have only just begun to backfire. The explosive contents of the unsealed communications are expected to impact the ongoing – and future –  litigation that will determine the future of pediatric gender medicine in the United States, including a ruling from the Supreme Court during its next term.

Dr. Erica Anderson. YouTube

Erica Anderson, a psychologist, transgender woman, and former head of Wpath’s American branch, characterized the recent disclosures as “damaging” to the organization. “The backroom discussions cement the picture of ideological and political capture,” she told the Sun of how she saw her former colleagues as woefully compromised. She said their exposed communications “hardly” portrayed them as “scientists using evidence to develop best practices.” Many Wpath leaders, she added, “clearly have lost their way.”

“I’m already hearing from litigants in many matters who will use this damning information in malpractice and other cases,” Dr. Anderson said, which is keeping with what several attorneys told the Sun.

“It will be a field day.”

The Damaging Disclosures 

The unsealed documents include a vast quantity subpoenaed from Wpath by the Alabama attorney general, Steve Marshall, a Republican. Alabama passed a law in 2022 making it a felony, punishable by up to ten years in prison, to prescribe hormones or puberty blockers to treat gender dysphoria to anyone under 19. The Biden Justice Department is suing to block the law’s enforcement. Mr. Marshall sought the documents to buttress his defense of the state’s ban.  

Alabama Attorney General Steve Marshall. X / Twitter

Excerpts of some of the most damaging Wpath communications are detailed in a now-unsealed report that was based on the subpoenaed documents and prepared for the court by Canadian psychologist and sex researcher James Cantor. Dr. Cantor has served as a paid expert testifying in favor of bans of pediatric gender-transition treatment being enacted by many American state legislatures. 

To date, 24 states have passed bans of gender-transition treatment and surgeries for minors and one additional state has banned only surgeries. Many of these laws are now snarled in litigation in both state and federal courts. On June 24, the Supreme Court agreed to hear a challenge to Tennessee’s ban. Last week, the judge overseeing the lawsuit seeking to  block Alabama’s ban accordingly put the suit on hold.

In late 2021, Wpath issued a draft of the treatment guidelines. In the section on pediatric gender-transition treatment, it set a typical recommended minimum age of 14 for cross-hormones and, for most surgeries, of 15 to 17 years old, depending on the type of operation.

Dr. Cantor’s scathing report disclosed that beginning in the spring of 2022, Admiral Rachel Levine, the assistant secretary for health at the Department of Health and Human Services, pressured Wpath to remove age restrictions on pediatric gender-transition treatment. Dr. Levine, a pediatrician and psychiatrist, particularly emphasized surgeries. At least part of Dr. Levine’s motivation was explicitly political. According to an internal Wpath email, Dr. Levine’s chief of staff, Sarah Boetang, told Wpath that keeping the age restrictions in the treatment guidelines “will result in devastating legislation for trans care.”  

The psychologist and sex researcher James Cantor. X / Twitter

The Biden Administration officials’ concern appeared to be that raising the issue of age at all would provoke more outright bans on any gender treatments for minors. The Biden Justice and Health and Human Services Departments are locked in multiple legal disputes with conservative state houses over policies related to gender identity.

Dr. Levine, 66, who transitioned from male to female in 2011, is the nation’s highest ranking openly transgender public official and has publicly asserted that pediatric gender-transition treatment is “medically necessary, age-appropriate and a critical tool for health care providers.” She told NPR in April 2022 that an “evidence-based standard of care” is “set by” Wpath and that associated “negative and discriminatory actions and laws are politically based.”

The same age limits from the draft of Wpath’s guidelines were in the final document when it was published on September 15, 2022. Then the organization stunned — and baffled — stakeholders by dropping all age restrictions in a revision issued later the same day.

So what happened? In the wake of Dr. Levine’s pressure campaign, the American Academy of Pediatrics had threatened to withhold support for Wpath’s new treatment guidelines, and even come out against them, if the organization didn’t remove the recommended age minimums for surgery. Following a September 10, 2022, call with AAP leadership, Wpath agreed to this demand. The week prior, a policy advocate at the Trevor Project, an LGBTQ-youth suicide-prevention nonprofit, had also urged Wpath to strike the age minimums.

The president of the World Professional Association for Transgender Health, Dr. Marci Bowers, is at the center of a firestorm over leaked internal communications from her organization. Marcibowers.com

Among the Trevor Project’s board members is Dr. Marci Bowers, a transgender woman who is Wpath’s current president and a gender-affirming surgeon who stated in a deposition in the Alabama case that her recent annual surgical income exceeded $1 million. 

According to Dr. Cantor’s report, Wpath leaders devised a cover story rationalizing why they had made the sudden change in the guidelines without engaging in their standard scientific process of seeking internal consensus.

Last week, a district court judge in Florida displayed an early instance of litigation incorporating the Alabama case’s unsealed documents. This reference appeared in a stay and preliminary injunction over a suit concerning objections by Governor DeSantis’ administration to a newly updated Biden Administration rule barring health care discrimination on the basis of gender identity. William F. Jung, a Trump appointee, pointed to Dr. Levine’s pressure campaign and asserted that “at times the HHS position about ‘gender affirming care’ seems to be political.”

According to unsealed internal communications, Wpath also wielded a heavy hand after it in 2018 commissioned from evidence-based medicine experts at Johns Hopkins University a series of systematic literature reviews—the gold standard of scientific evidence—regarding various facets of trans medical care. After some of the Hopkins teams’ findings raised concerns among Wpath leadership that they might “negatively affect the provision of transgender health care,” Wpath compromised the independence of the Hopkins researchers. This included asserting the final say-so on the publication of any systematic reviews. To date, just two reviews have been published.

The chairwoman of PFLAG’s National Board of Directors, Susan Thronson, greets Admiral Rachel Levine, the Assistant Secretary for Health for the Department of Health and Human Services in 2023 at Washington, DC. Paul Morigi/Getty Images for PFLAG National

Meanwhile, one Wpath leader acknowledged to colleagues that “we are painfully aware of the gaps in the literature and the kinds of research that are needed to support our recommendations.” Yet in the wake of a British report, called the Cass Review and published in April, finding that the justification for pediatric gender medicine is based on “remarkably weak evidence,” Wpath in public vehemently refuted such a characterization of the evidence base.

The Cantor report further found that Wpath leaders crafted the language of its medical guidelines for the express purpose of influencing insurance coverage, policy and litigation – which according to Dr. Cantor, in at least some points came “even at the expense of scientific accuracy.” He also found that Wpath coordinated on the draft with the ACLU, which is behind many of the suits against state bans of such treatment. 

No one from Wpath, the AAP, the Trevor Project, the ACLU, HHS or Dr. Levine’s office responded to requests from the Sun for comment. 

However, on July 1, a former Wpath president, Eli Coleman, who chaired the guidelines steering committee, submitted a sworn declaration to the Alabama district court that amounted to a sweeping denial. This included his assertion that Wpath’s guidelines revision had not “turned on any ideological or political considerations,” including those of outside parties. Dr. Coleman also denied that Wpath suppressed publication of any systematic reviews.

The Supreme Court Case

The stay that the Alabama district court judge issued last week for the case over the state’s ban on gender-transition treatment for minors might limit at least some further unsealing of documents that could shed greater light on Wpath’s inner workings until after the Supreme Court rules, as late as next June. 

“I believe it would very much be in the public interest for the full set of WPATH’s materials to be made available to the public,” said Dr. Cantor.

Tennessee’s attorney general, Jonathan Skrmetti. State of Tennessee

The redacted documents from the Alabama case that have been unsealed thus far, while unadjudicated in court, are a matter of public record. Which raises the question of how they might impact the Tennessee case when it reaches the nation’s highest court. 

The Supreme Court opted only to hear the petition seeking to block the Tennessee ban that was filed by the Biden Justice Department. And so the case, L.W. v Skrmetti, will focus narrowly on whether the ban violates the Equal Protection clause of the 14th Amendment. 

The justices opted not to hear the petition filed by the ACLU and other legal groups that further alleged Tennessee’s ban violates due process rights. Such a case might have been more directly concerned with the reliability of Wpath as a pillar supporting what the ACLU’s petition characterized as a broad consensus among medical experts that pediatric gender-transition treatment is based on quality evidence. 

Legal experts told the Sun that by focusing only on the equal protection question, conservatives on the court are likely seeking to clarify the application and analysis of the landmark 2020 Bostock v. Clayton County decision. The court found in Bostock that Title VII of the Civil Rights Act prohibits employment-based discrimination on the basis of both sexual orientation and gender identity. 

FILE - The Supreme Court building is seen on June 28, 2024, in Washington. Two blockbuster opinions are coming on the Supreme Court term's final day, Monday, July 1: whether Donald Trump is immune from federal criminal prosecution as a former president and whether state laws limiting how social media platforms regulate content posted by their users violate the Constitution.
The Supreme Court has agreed to hear a challenge to Tennessee’s ban on medical gender care for minors. AP/Mark Schiefelbein, file

Tennessee’s attorney general, Jonathan Skrmetti, who will defend the state’s ban before the highest court, said in an interview: “We’ve never heard from the Supreme Court what they think about how gender identity ties into the Equal Protection clause. This is going to inject some much-needed clarity, because [the amount of] litigation is extremely high. There are numerous cases in numerous states where courts are being asked to figure out what the Constitution says about gender identity issues.”

Mr. Skrmetti, who is a Republican, continued: “I think the narrowness of the grant reflects the court’s recognition that these are big issues and that it does not want to make any hasty pronouncement in an environment where the facts are still unclear where there are many different practices, laws across the country.”

However the Supreme Court rules in the case, the justices will likely leave lower federal courts to hammer out still unresolved legal questions. This will probably include, for example, determining whether states can legally pre-empt the rights of parents to decide whether their children should receive gender-transition treatment. 

A professor of constitutional law at the South Texas College of Law Houston, Josh Blackman, said that in such lower-court cases, the documents unsealed in Alabama could support the defense of state bans by indicating, he said, “that the state is reacting rationally” to scientific uncertainty.

Lawyers Jordan Campbell, Ron Miller, Josh Payne, and Daniel Sepulveda of law firm Campbell Miller Payne, PLLC. They say they established their firm to represent ‘individuals who were misled and abused – many as children – into psychological and physical harm through a false promise of “gender-affirming care.”’ Campbell Miller Payne, PLLC.

“The government doesn’t have to wait for 100 percent proof that something is harmful,” Mr. Blackman said of his reading of constitutional questions at stake. “It’s enough for the government to say that we just don’t know the cost and the benefits here.” 

The Tennessee case has a much more limited evidence base than Alabama’s. And given that new evidence is not typically presented before the Supreme Court, Mr. Skirmetti said that he expects that in the oral arguments that the Tennessee solicitor general, Matt Rice, will present, he will focus more narrowly on constitutional issues and won’t spend much time questioning the integrity of pediatric gender medicine.

The senior counsel at the conservative legal group Alliance Defending Freedom, Roger G. Brooks, said he expected Mr. Skrmetti’s team would nevertheless find a way to draw court’s attention to the Alabama documents, to question the scientific underpinning of this medical field. “People stuff all sorts of things in footnotes in Supreme Court briefs,” Mr. Brooks said.

Mr. Skrmetti did, however, say he expected the documents from the Alabama case will play a major role in amicus briefs to the Supreme Court, be they from supporters of the bans or opponents seeking to get out in front of efforts to undermine Wpath’s credibility.

The ‘Detransitioner’ Suits

Since 2022, about 20 so-called detransitioners have filed medical malpractice suits against their health and mental health providers. The plaintiffs medically transitioned as minors or young adults and later stopped treatment and reverted to identifying and presenting as their biological sex; they claim they were harmed by the treatment. Their suits are largely structured to argue that the providers did not even follow Wpath guidelines, such as by not completing a thorough psychosocial evaluation prior to beginning the plaintiff on a medical transition. 

Consequently, litigators behind these suits said the trove of documents damaging Wpath’s reputation will not fundamentally impact their legal strategy. However, these attorneys said that they might still leverage the documents to argue that even the Wpath guidelines are not based on sound science.

The headquarters of the American Academy of Pediatrics. AAP

Also, judges tend to permit litigators latitude in cross-examining expert witnesses regarding the influences of their opinions. This could provide an avenue for attorneys to refer to the Alabama case’s documents in court. And should expert witnesses reference Wpath and its treatment guidelines during detransitioner trials, litigators will likely be ready to pounce. 

“I think it helps our arguments, 100 percent,” said a legal fellow at the Center for American Liberty, Eric Sell, of the Alabama case’s documents. The center represents multiple detransitioner plaintiffs. He added that “It provides context, it allows the court to look at: There’s this very contentious debate within the medical community happening; and it’s resulted in some very devastating consequences for young people, including our clients.”

“We certainly plan to use that information,” a founding partner at the California firm LiMandri and Jonna, Charles LiMandri, who represents three detransitioners, said of the unsealed documents. “It’s all very helpful because it shows that this is ideological and political and not based on science or medicine.” 

That said, most of the current detransitioner suits concern medical care that predates the publication of Wpath’s current guidelines. And yet, Mr. LiMandri pointed out that many of the guidelines’ authors worked on the previous edition, published in 2012, as well as on the Endocrine Society’s own guidelines, which were published in 2009 and updated in 2017.

One detransitioner suit, waged by the Texas firm Campbell Miller Payne, names the American Academy of Pediatrics as a defendant. It accuses the AAP of engaging in a conspiracy with the author of the organization’s 2018 policy statement regarding the gender-affirming care method.

A firm partner, Ron Miller, said his team could use AAP’s presence in the unsealed documents to buttress the case against the medical society. A September 9, 2022, email from a Wpath leader, Jon Arcelus, an emeritus professor of mental health and well-being at the University of Nottingham, revealed that he held in low regard both the AAP policy statement and the team behind it. He said the statement had “a very weak methodology” and “has a one sided narrative, extremely biased.” 

Mr. Miller also said the unsealed documents could provide a roadmap for their discovery efforts against the AAP.

Roger Brooks of the Alliance Defending Freedom said he expected the Alabama documents would have an even greater impact on future detransitioner lawsuits, by undermining physicians’ arguments that they were acting in good faith by following WPATH’s guidelines. 

Psychologist Erica Anderson, who positioned herself as WPATH’s Cassandra some years ago, having sought to warn her colleagues that they were steering the organization in a perilous direction, reflected over what it has meant to have, as she sees it, been proved right.

“Many who know of my historic efforts to stem the tide of ideology have proclaimed that I should feel vindicated, but I cannot be consoled,” Dr. Anderson said. 

“I am heartsick.”  

The New York Sun

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