On June 11, a U.S. district court judge ruled as unconstitutional Florida’s law barring doctors from treating minors with puberty-blockers and cross-sex hormones for gender dysphoria issues. The judge determined that the Florida law interfered with a minor’s right to be treated in accordance with the World Professional Association for Transgender Health (WPATH)’s Standards of Care Version 8 (SOC-8). Unfortunately, SOC-8 are neither standards of care nor a consensus of standards of care. Let’s explore why.
Distinction Between Standards and Guidelines
Medical standards of care are determined as follows:
There are a variety of factors that can evidence the applicable standard of care in any clinical situation. In descending order of relevance, these factors are:
- Statutes: federal and state, such as prescribing laws
- Regulations: federal and state, such as confidentiality regulations
- Court opinions: such as duty to warn of dangerous patient case decisions
- Other regulatory statements: federal and state, such as guidelines from licensing boards
- Authoritative clinical guidelines: in and of themselves, guidelines are not the standard of care, but are a factor that will be sued to determine the standard of care. Just as following guidelines does not preclude negligence, deviating from guidelines does not equal negligence. If authoritative clinical guidelines (not utilization review guidelines) are not followed, the reason and clinical judgment should be documented.
- Policies and guidelines from professional organizations, such as from the APA or AACAP
- Journal/research articles
- Accreditation standards
- Facility policies and procedures
Note that highest priority in determining standards of care is reserved for federal and state laws and regulations, not so-called “guidelines from professional organizations.” The American Psychological Association concurs as to the distinction between standards and guidelines for treatment of transgenders and gender-non-conforming people:
Standards are mandates to which all psychologists must adhere (e.g., the Ethical Principles of Psychologists and Code of Conduct … whereas guidelines are aspirational. … Psychologists … should be aware that state and federal laws may override these Guidelines.
Readers of SOC-8 (including judges) are immediately misled and deceived because SOC-8 is titled “Standards of Care.” Patients and their parents (and medical professionals and the public) are led to believe that WPATH provides the legal and ethical standards for what services gender-care professionals provide and the conditions upon which the services will be provided. But they are, at best, merely “guidelines.” In fact, SOC-8 itself specifically admits (pp. 3 and 5) that its recommendations are merely clinical guidelines. When SOC-8 is duly relegated to its subordinate position relative to federal and state laws and regulations, it is impossible to announce a consensus standard for “gender care” treatment because existing laws and regulations applicable to minors vary widely across the United States and Europe.
Then comes the whopper. All WPATH guidelines are “flexible,” and professionals are authorized and encouraged to modify the guidelines in consultation with the transgender and/or gender-diverse person. Since WPATH guidelines can be modified at will by the professional provider, protection for the patient is purely illusory. To make matters worse, WPATH, recognizing that ethics is relevant, submitted and published a draft version of SOC-8 for public comment containing an entire chapter titled “Ethics.” Then, without any apparent concern for patient and government reliance on professionals to serve with the highest of ethical standards, WPATH not only totally deleted the proposed chapter on Ethics from the final version, but also, after WPATH reportedly succumbed to political pressure from the Biden administration, also deleted all age restrictions on medicalization of minors.
Why did WPATH do that? The best answer is revealed in Peter Jenkins’s article. The article includes a video presentation by the author of the key SOC-8 chapter on “Children.” She admits that because proscriptive standards can potentially impeach the credibility of clinicians who deviate from standards, WPATH did not want to create a chapter that would make it more likely that practitioners would be sued because they weren’t following exactly what WPATH said. It appears that WPATH has purposefully structured SOC-8 so that it cannot be used as a benchmark for determining if a professional has acted wrongfully (negligently or intentionally). In doing so, WPATH has destroyed the ability of patients and their families to rely on SOC-8 for the protections they sorely need.
Illusory Animus
Nonetheless, the judge attempts to circumvent the consensus issue by declaring that Florida’s laws were motivated by legislator animus (hatred toward transgenders).
The Texas Supreme Court, in a similar case, provided several appropriate responses that defeat the animus claim. The Texas court held that the allegation that a law is “rooted” in anti-transgender animus is not valid because the Legislature has legitimate interests in both regulatory medical procedures and protecting the health and well-being of children. Accordingly, the Texas law was upheld because the law was deemed rationally related to a legitimate government interest.
The Texas Court further held that a state is permitted to weigh and balance risks and benefits for a procedure used for different treatments — e.g., on the one hand for precocious puberty and, on the other hand, for other conditions like gender dysphoria, for which other options exist.
Although the Florida judge asserted that one or more legislators made comments that raised concerns as to animus, none of those comments was inconsistent with the legislators’ obligation to protect children. Further, the judge fails to provide evidence of improper motivation because none of his examples of allegedly improper legislator comments indicated unlawful motivation at the time of voting. The court does not seem to be aware that committee hearings are held on such bills, with testimony being given by witnesses with many opposing viewpoints. It is only after such hearings, after legislators have the opportunity to review the reports of caucus counsel and caucus position statements, and after discussion with other legislators that a legislator, taking all of that into account, casts his vote.
The court also does not appear to have considered that when medical adjustments to the human body are not necessitated by disease or injury, government and professional organizations often prohibit or restrict such procedures for minors, even if parents’ consent is obtained, as is the case with tattoos, breast enlargement and reduction procedures, and female genital mutilation. These prohibitions are grounded not in discrimination, but in protection of minors in light of the patient’s lack of maturity and ability to comprehend lifelong irreversible risks and consequences.
The Florida judge further reveals the weakness of his animus argument by using the word “animus” 67 times in his Order and by arguing the “likelihood” rather than the “fact” of animus. The Judge apparently had no factual evidence of unlawful motivation in connection with actual final voting.
The judge has failed to comprehend the extreme and lifelong consequences of “gender transition” and the role of government as the protector of last resort for minors and adults. Consider, for example, that one CDC study discloses (a) a stunning 61.9% HIV infection rate for Black/African American trans women, (b) a 41.7 % “homeless” rate for trans women, (c) a 62.7% “below poverty” household income rate for trans women, (d) over 17% of trans women had been incarcerated within the prior 12-month period, and (e) approximately 20% of trans women had used cocaine within the last 30 days and over 50% of trans women had used marijuana in the last 30 days. Another discloses the estimated lifetime average cost of HIV health care to be $510,000. Further, another review estimated that 31.0% of transgenders are engaged in the sex trade, and a 2018 study found that almost all the heterosexual participants would not even consider a dating relationship with a transgender.
For the above and other reasons, the judge should reverse his decision and permit the reinstatement of the Florida law. Failure to do so facilitates and encourages decisions that can and often do result in participation in unlawful activities and materially adverse health, social, and economic consequences.
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