Recently, a couple of articles passed through my in-box that gave me pause whether gender transition lawsuits could be the next tidal wave of litigation affecting health care providers. As physicians in this new specialty care for more and more of these patients, being able to demonstrate documented evidence of a thorough informed consent will be essential to ensure they cannot only defend potential lawsuits but also win them.
The first article was a recent Medical School Insiders Commentary outlining the 46 medical specialties and subspecialties that medical students might consider pursuing. Among the list was one I had not seen before: gender surgery.
Regardless of cultural views or which side of the political ideology you align with, anyone with an eye on the news media knows this is a controversial topic that is receiving considerable attention. The demand for gender dysphoria treatment and access to gender affirming surgery are growing rapidly. The writer outlined the definition of Gender Surgery:
“Gender surgery is the controversial field of medicine concerned with alleviating gender dysphoria through surgical procedures. Any surgical procedure designed to help alleviate gender dysphoria can be considered gender surgery, including masculinization and feminization of the face and chest, tracheal shaves, voice modification, and even limb lengthening and shortening procedures.”
The rapid growth in demand for gender dysphoria treatment is confirmed in the following illustration from Komodo Health:
The second article, a recent opinion commentary from author Merrill Matthews references the rise in minors aged 6-17 seeking gender care. Matthews also noted the serious, potentially permanent adverse consequences from this care and the growing number of de-transitioner lawsuits filed. This will likely test potential liability of physicians and clinics who treat patients with a gender dysphoria diagnosis and/or practice gender surgery.
According to Matthews, nearly half of the states have passed legislation restricting or banning “gender affirming care” for minors. Many of these laws have been challenged in court, with some judges upholding the bans, while others have blocked them. Regardless of where the courts, including the U.S. Supreme Court, may end up, the real check on gender-affirming care for minors may come from the multi-million-dollar lawsuits now being filed against the physicians and healthcare centers that provide the care.
Curious about whether there had been any studies on detransition in the United States, I began a little research. The only authoritative study I could find is a little dated but still insightful.
In June 2022, the National Library of Medicine (NLM) published an article discussing Detransition Among Transgender and Gender-Diverse People—An Increasing and Increasingly Complex Phenomenon. The 2022 article discusses the Continuation of Gender-affirming Hormones Among Transgender Adolescents and Adults particularly in the endocrinology practice and references a 2015 US Transgender Survey performed by the National Center for Transgender Equality.
The NLM article suggests the survey found that 8% of 27,715 adult respondents had de-transitioned temporarily or permanently at some point and that the majority did so only temporarily. Rates of detransition were higher in transgender women (11%) than transgender men (4%).
The most common reasons cited were:
What was not captured with any specificity in the article was any statistics around minors, who transitioned as young adolescents and then wanted to de-transition as adults.
In September 2023, Luka Hein filed a lawsuit in Nebraska against her healthcare providers. University of Nebraska Medical Center doctors allegedly began gender transition therapy for her at the age of 16. Therapy included a double mastectomy surgery, while treating her for mental illness.
In October 2023, Isabelle Ayala, now in her early 20s, filed a lawsuit in Rhode Island. She alleged physicians who treated her for suicidal thoughts, depression, and anxiety committed medical malpractice. At age 13, they had led her through gender transition therapy and hormonal treatment.
Both of these lawsuits claim there was a lack of informed consent given to the patients before gender transition therapy began. Jordan Campbell of Campbell, Miller, Payne in Dallas represents Ayala. Campbell says he foresees a “wave” of similar lawsuits being filed around the country.
“We’ve already brought four of these cases, and we have a lot more in the pipeline,” Campbell says. Including the four filed by his firm, he’s identified another six cases filed by other attorneys and firms.
With the increasing number of lawsuits being filed, the fluid and evolving nature of the subject matter and the wide variety of state laws on gender care, I believe there is a vital take-away for any and all healthcare professionals and clinics who provide gender care services. Make sure the patient is fully informed of the risks of particular gender care services and/or procedures, consent is clearly documented and (in the case of minors) parental or guardian consent is obtained.
The following recommendation from the ACOS (American College of Surgery) is a good example of a thorough informed consent process for all kinds of medical treatment but particularly surgery.
Whether or not informed consent was obtained will be at the center of these lawsuits. Except in limited circumstances, minors cannot provide informed consent to most medical procedures or treatment under law. Instead, their parents or guardians must provide informed consent.A successful defense will be one where the healthcare provider(s) are able to demonstrate that the patient and its parent or guardian was properly advised and the parent or guardian made a fully informed decision before beginning treatment.
In my opinion, a complete informed consent for gender care must include the following:
While of course, the psychiatrist must be competent, if the provider is selected by the patient, then that limits any claim of negligent referral or any suggestion that the gender treater and the psychiatrist consulted, or even conspired, together, regardless of the merits of such claims.
The opinions and recommendations of the psychiatrist should be an essential part of the evaluation of the patient for treatment and any informed consent discussion. No gender treatment should begin without it.
If the psychiatrist says no, then don’t do it. If the psychiatrist says wait, then wait, making sure to complete any follow up evaluations, if appropriate. Only with the unreserved support of the psychiatrist should gender treatment begin.
Although it’s unclear to what extent parental consent is required for a minor in every state, any minor coming in without the knowledge and consent of a parent or guardian should also be a huge red flag.
It's too early of course to predict the outcomes of these lawsuits but juries are likely to be quite sympathetic to these claims, and damages could potentially be substantial. To quote an old Latin proverb, “to be prepared is to be forewarned” and “to be forewarned is to be forearmed.”
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Image by gorodnkof from iStock.
