Lawsuits by Regretful ‘Detransitioners’ Take Aim at Medical Establishment’s Support for Gender-Transition Treatments for Minors
Two plaintiffs are suing two of the most prominent doctors in the pediatric gender-transition field, as well as the highly influential American Academy of Pediatrics.
A new front in the struggle over transgender issues has opened up. Two medical malpractice lawsuits, each levied by a plaintiff who regrets having undergone medication-based gender-transition treatment — one at age 14 — have taken aim at the American medical establishment’s support for prescribing such drugs to minors.
This litigation targets two of the most prominent and influential physicians to champion the use of puberty blockers and cross-sex hormones to treat gender-related distress in children: Dr. Jason Rafferty and Dr. Michelle Forcier.
Isabelle Ayala, now 20 and back to identifying as her female birth sex, was 14 while in the care of these physicians and their Rhode Island colleagues. Her suit against them describes an adolescent in crisis. A sexual assault survivor, Ms. Ayala had been diagnosed with ADHD, depression, and anxiety; was apparently chronically suicidal, for which she was hospitalized; and had a long history of self-harm.
Ms. Ayala had learned about gender transition on social media and, despite her mother’s objections that she had never shown signs of a transgender identity prior to adolescence, was determined to become a boy.
The suit alleges that the care team prioritized addressing this expressed desire of Ms. Ayala’s over treating her other mental health conditions. At one pivotal meeting, one of them suggested to Ms. Ayala’s mother that absent testosterone treatment, her child faced a high chance of death by suicide.
Crucially, this suit also names as a defendant the American Academy of Pediatrics, the influential industry group that shapes best practices for medical treatment of children. The suit accuses the organization of engaging in a civil conspiracy with Dr. Rafferty and Dr. Forcier to develop, promote, and ultimately profit off what has become the prevailing American medical treatment model for pediatric gender care — a model that the suit alleges is based on a fraudulent and misleading representation of scientific research.
The AAP’s support for what is known by its advocates as the gender-affirming care model has served as a beacon to which many of the more than two dozen other major medical societies that support pediatric gender-transition practices have looked when crafting their own endorsements.
LGBTQ advocacy groups routinely point to this unified front when characterizing such medicine as uncontroversial standard practice and asserting, as the LGBTQ press monitoring organization GLAAD has, that “the science is settled” on the question.
Ms. Ayala’s suit against the AAP could shed light on the opaque process by which the organization first came to endorse this care model. And it could show how AAP leadership has remained steadfast in this support even in the face of scathing criticism and after health authorities in multiple European nations concluded that pediatric gender medicine is based on uncertain evidence. Sweden, for one, has gone so far as to conclude that for minors the risks outweigh the benefits.
“To the extent that one of these pillars starts to crumble, that makes it more likely that the roof will collapse,” a fellow at the Manhattan Institute, Leor Sapir, said referring to the potential repercussions should the AAP sustain serious damage to its reputation on this issue.
The Legal Landscape
These lawsuits arrive at a time when Americans have become divided over the question of medical gender transitions for minors, often split along red-blue lines. Amid this raging culture war, Republican-controlled legislatures in more than 20 states have passed bans on such treatment for minors.
In a marked contrast to the rancorous political divide, the U.S. medical establishment has stood unified in asserting that gender-transition treatments are beneficial, even life-saving, to transgender youth — a vulnerable population with a high rate of suicidal thoughts and behaviors. Yet the core of that unity now faces a major challenge.
The two lawsuits that pose the biggest threat to the AAP in particular were filed in October by a Dallas law firm that promotes itself as fighting for “justice for the detransitioner community,” Campbell Miller Payne. These “detransitioners” are people who regret medically transitioning and have reverted to identifying and presenting as their biological sex.
These two cases are part of a burgeoning litigation movement that to date includes at least nine other detransitioner suits against care providers, all filed since August 2022. Campbell Miller Payne has filed five such suits all told, has one additional case close to filing and more in development, according to firm partner Jordan Campbell.
Five of the suits have been brought by plaintiffs who were first treated with medication and in some cases surgery starting when they were minors, as young as 12 years old. The six other suits concern such treatment that commenced during young adulthood, when the plaintiffs were as old as 29. So this wave of litigation, while apparently inspired by the backlash against pediatric gender-transition treatment, may pose a threat to the medical care of transgender adults as well.
Supporters of pediatric gender medicine accuse the firms behind these suits of egregious fear-mongering and of misrepresenting the typical experience of transgender adolescents in particular by broadcasting what they say are exceptional cases. The Human Rights Campaign, which is the nation’s largest LGBTQ advocacy organization, claims on its website that pediatric gender-transition treatment is “life-saving” and “medically necessary, safe health care” that is based on “clear, well-established, evidence-based standards.”
Yet with respect to this article, the major LGBTQ advocacy organizations have remained uncharacteristically silent. GLAAD and Lambda Legal did not respond to requests for comment; an HRC representative said no one was available to comment. The ACLU also did not respond to requests to comment. A slew of other smaller LGBTQ nonprofits were similarly unresponsive.
The likelihood that those who medically transition as minors will ultimately detransition, which for some means adopting a nonbinary identity, remains unclear due to limited, hazy research. Detransitioning has become a matter of fierce contention amid debates over what factors motivate it — regret, stigma, health concerns, finances, or otherwise. Many trans advocates point to studies suggesting detransition rates are as low as 1 to 2 percent; some skeptics, however, claim figures as high as 30 percent.
Legal scholars have said that the growing threat of detransitioner lawsuits could, at a minimum, steer the nation’s pediatric gender clinics toward more cautious practices. “The whole point of tort law is to encourage people to adjust their behavior,” a medical doctor who teaches tort law at the University of Baltimore School of Law, Dr. Gregory Dolin, said.
Dr. Julia Mason, who is a pediatrician at Gresham, Oregon, said she believes many pediatric gender clinics treat vulnerable children recklessly. She pointed to a 2022 Reuters investigation that found many pediatric gender specialists will often prescribe puberty blockers and hormones without, as the transgender-medicine organization WPATH recommends, first conducting a comprehensive, long-term psychological assessment of a child identifying as transgender.
When asked what motivated her to serve as an expert witness on behalf of Campbell Miller Payne, Dr. Mason said, “I’d like to inspire a bit of concern on the part of practitioners. They need the fear of lawsuits.”
Kathleen Dooley is a South Carolina attorney and board member of the newly formed ad hoc legal advocacy group, Themis, which is raising money to back detransitioner suits. She anticipates that should the recently filed suits reap considerable settlements or damages awards, a snowball effect would likely spur a surge in further litigation while driving up malpractice insurance premiums for pediatric gender clinics and possibly also for the related treatment of adults.
Mr. Campbell’s firm filed in October two suits against a child psychiatrist and pediatrician, Dr. Rafferty, and Dr. Forcier, who is also a pediatrician. They accuse the Rhode Island doctors of medical malpractice and a lack of informed consent through their work at the Thundermist Health Center and the Lifespan Physician Group at the Hasbro Children’s Hospital. Dr. Rafferty is also accused of fraud in the pediatric case, and the clinics are accused of negligence and what’s called vicarious liability, which holds clinics responsible for the actions of their employees and agents.
Both the plaintiffs are biological women who while in Dr. Rafferty and Dr. Forcier’s care were prescribed testosterone — one at age 14, the other at age 25 — for gender dysphoria, which is a psychiatric diagnosis involving marked distress over a conflict between an individual’s sex and gender identity. The suits accuse the physicians, plus other colleagues, of failing to adhere to the applicable standard of care.
The team allegedly ignored “red flags,” suggesting that the young people’s gender-related distress was driven by their poor mental health, not vice versa. Each plaintiff had multiple serious psychiatric conditions. Both presented as suicidal and were sexual assault survivors. The young adult was diagnosed with dissociative identity disorder and had survived a cult and gay conversion therapy.
Each of the plaintiffs ultimately detransitioned and, according to the suits, now grapples with various harmful effects of their time on testosterone, including: in the pediatric case, vaginal atrophy and excess facial and body hair; and in the adult case, genital pain and “body disfigurement,” including, according to her attorney, Ron Miller, a deep voice, broad shoulders, “bone density and other osteo disorders and issues, and other issues related to her female anatomy and body hair growth.”
Mr. Campbell said that all his firm’s clients are primarily motivated to sue “so what happened to them doesn’t happen to another individual.” He continued: “That’s really what motivated our firm as well.”
Dr. Forcier has been a leader in the movement to promote a U.S. version of pediatric-gender-medicine practices that were developed by Dutch researchers starting in the mid-1990s and first imported to the United States in 2007. A professor at the Warren Alpert Medical School of Brown University, Dr. Forcier mentored Dr. Rafferty during his medical residency at Brown, where he is now a clinical assistant professor.
Almost immediately after finishing his residency in 2017, Dr. Rafferty, who has three Harvard degrees, became a leading figure in the by-then fast-growing field of pediatric gender medicine. His early-career status notwithstanding, he was the sole author of a broadly influential policy statement the AAP published in October 2018 that endorses the affirming care model for treating gender dysphoria in children.
The pediatric suit against Dr. Rafferty and Dr. Forcier alleges that the pair, along with other providers, engaged in a civil conspiracy with the AAP to develop the policy statement, which the suit alleges “fraudulently and misleadingly misrepresents” the relevant scientific evidence. It further alleges that the two doctors “implemented and tested the new, experimental” treatment model in private practice during a period overlapping the time — early 2017 to the middle of 2018 — when the plaintiff, Isabelle Ayala, was in their clinic’s care.
The AAP policy statement takes a more liberal approach to treating gender dysphoric children than what’s known as the traditional “Dutch protocol.” The crux of the statement is Dr. Rafferty’s assertion that children reliably know their gender identity. Pediatric providers, he states, should follow children’s lead by affirming that identity, which includes the option of facilitating a medical transition with puberty blockers and hormones and in some cases surgery.
Along with pediatric-gender-medicine guidelines issued by the Endocrine Society and WPATH, the AAP policy statement is part of a crucial trifecta to which many other medical associations have looked when establishing their own public support for treating gender dysphoric minors.
Over the past five years in particular, the gender-affirmation principle has garnered support nationwide, both across the medical and mental health fields and within schools. And it has inspired a fierce cultural and political backlash. Opponents of medical gender transitions for minors often argue that children are not mature enough to make an informed decision about receiving irreversible medical treatments that pose a risk, most notably, of infertility and sexual dysfunction; and that amid an epidemic of poor mental health among young people, social media drives many adolescents to misattribute their psychological struggles to gender dysphoria.
A Suicide Slogan
Ms. Ayala’s suit also alleges that Dr. Rafferty and his colleagues “coerced” her wary mother into consenting to the testosterone prescription by exaggerating her risk of suicide and presenting hormonal therapy as, the suit states, the “accepted and sole course of action in the medical community and backed by the current body of scientific research.” The suit states that during a March 2017 meeting with the care team, a team member asked Ms. Ayala’s parents whether they would, as the suit paraphrased, “prefer to have a dead daughter or a living son.”
This is widely reported to be a common question that gender-clinic providers pose to parents facing such a decision, including those of Chloe Cole, who has become the most prominent and publicly outspoken of the detransitioners who have filed suit against their care providers.
The suit attests that every systematic review of the scientific evidence behind gender-transition treatment has “contradicted the claims that non-medical intervention for gender diverse youth leads to increased suicides.”
Eight months after beginning testosterone, Ms. Ayala attempted suicide and was once again hospitalized.
The only defendant of the two suits involving Dr. Rafferty to respond to multiple requests for comment was the AAP. A spokeswoman for the organization, Susan Martin, wrote in an email to the Sun that the AAP was “unable to comment on ongoing litigation.”
Otherwise, Ms. Martin denied that Dr. Rafferty was the sole author of the 2018 policy statement. She pointed to a document outlining the apparent group-effort process by which such statements, which the AAP states are “evidence driven” and “nonpartisan,” are edited, revised, and “rigorously reviewed.”
However, in the PDF of the published policy statement, Dr. Rafferty’s is the sole name below the title.
Additionally, the document includes the following note: “Dr. Rafferty conceptualized the statement, drafted the initial manuscript, reviewed and revised the manuscript, approved the final manuscript as submitted, and agrees to be accountable for all aspects of the work.”
What Discovery Could Yield
The AAP policy statement dismisses as “outdated” a philosophy central to the Dutch protocol known as “watchful waiting.” This refers to providers effectively remaining neutral and hands off regarding a prepubescent gender-dysphoric child’s desire to transition. Only if this desire persists from early childhood through puberty’s onset should care providers consider advocating a social and medical transition, per the Dutch protocol.
As the suit against the AAP notes, the policy statement was met with scathing criticism in a peer-reviewed paper published in 2019 by Canadian sex researcher and psychologist James Cantor. Dr. Cantor found that many of Dr. Rafferty’s citations either did not back his support for a more liberalized treatment approach or contradicted his claims.
Neither Dr. Rafferty nor the AAP has ever responded to Dr. Cantor’s criticisms.
“Not a word. It’s truly extraordinary,” said Dr. Cantor, who has served as an expert witness in support of U.S. state legislatures’ bans on pediatric gender-transition treatment.
In recent years, investigators in England, Sweden, and Finland have conducted systematic literature reviews — the gold standard for assessing evidence — of the research behind pediatric gender medicine. Between them, these reviews have found that the scientific evidence informing gender-transition practices among minors is of low or very low certainty.
Accordingly, those nations, along with Denmark, France, and Norway, have each recently at least proposed — and in some cases implemented — policies that sharply dial back or otherwise restrict the prescription of pediatric gender-transition treatment. They typically establish psychotherapy as the first-line treatment for childhood gender dysphoria.
If the AAP’s attorneys don’t win a dismissal of the suit against the organization, the discovery phase could potentially divulge internal documentation detailing how its leadership cultivated and edited Dr. Rafferty’s policy statement. Discovery might shed further light on any internal response to challenges to the statement’s scientific validity.
However, a judge might limit access to any such documentation, at least initially shielding it from public view.
Who Are the Heroes of This Story?
Beginning in 2020, a small but vocal group of AAP members led by Dr. Mason began pressuring the organization to conduct its own systematic literature review and to revise Dr. Rafferty’s policy statement accordingly.
The AAP leadership resisted these calls. And in August, the organization reaffirmed its support of Dr. Rafferty’s position statement, making no changes to the document. However, the organization also announced it would commission an independent systematic literature review of the relevant evidence.
Dr. Mason said she expected that the review’s findings would be similar to those of the European reviews. Its release could dovetail with discovery from the suit against the AAP and damage the organization’s reputation, she said.
Not that Dr. Mason ascribes ill intent to the AAP leadership. “Everyone assumes that they’re doing the right thing,” she said. “You’re generally the hero of your own story.”
In January, well before the systematic review will be completed, the AAP is slated to publish a 320-page book offering physicians “practical guidance and overview on access” to pediatric gender-transition treatment. Dr. Mason said she believed the book’s publication represents a new effort on the part of the AAP to expand such treatment out of specialized gender clinics and into everyday primary care practices.
The book includes commentaries from four physician authors.
Dr. Rafferty is listed as the first author.
UPDATE: On Wednesday, December 6, the morning after this article was published, the American Academy of Pediatrics sent an email to those who had pre-ordered the organization’s forthcoming book on pediatric gender-transition treatment, stating: “Due to an upcoming policy review on this topic, the publication of this book has been placed on hold.”