Lawsuit Over Gender Affirming Care Misrepresents The Science It Cites

Because of the nature of what I’m writing about here, there are trigger warnings for gender issues and self harm for this post.

With quite interesting timing considering what happened in Tennessee the day before, a young woman’s lawyers filed an "intent to sue" (PDF link) letter against several health care providers in California.

But even the headlines around the existing reporting about this story are highly misleading. The articles — and the intent to sue letter — misrepresent research, take quotations out of context, and present routine medical things as somehow dangerous and scary. And with the current climate around this issue being what it is, that combination comes very close to incitement.

Worst of all, this lawsuit could have massive negative implications on all pediatric care in the United States.

Since I put down a marker on this the other day, I think I owe it to you all to do the legwork and demonstrate these errors all in one place so you don’t have to.

I’m largely going to concentrate on the actual intent to sue letter and two articles from The Daily Caller (yes, the one founded by Tucker Carlson) both written by Laurel Duggan. The other "reporting" I’ve seen is even less worthy of the name, with bylines like "Anonymous Constitutionalist," to give you an idea.

Please note: While I definitely Have Opinions on this topic, the things I’m writing about here are about factual accuracy of the intent to sue and reporting, as well as the possible ramifications of this case, not my feelings about the case.

There are three sections:

  • The Actual Story And Possible Upheaval To All Pediatric Medicine
  • The Hyperbole In The Reporting
  • Not Merely Wrong — Misrepresenting The Science

The Actual Story And Possible Upheaval To All Pediatric Medicine

There is an actual story here: Chloe Cole is suing Kaiser Permanente — because Cole believes that clinicians at the hospital system "coerced Chloe and her parents to undergo what amounted to a medical experiment by propagating two lies," according to the intent to sue letter.

Medical clinicians probably sat up at that difference in wording. They are NOT suing because of the gender-affirming care itself, they are suing because they believe they were given inaccurate information. This is a critical difference from a medical and legal perspective, and a dangerous precedent.

For example, should Cole win their case, it potentially opens up every medical pediatric imaging center for a lawsuit, even if the parents have given consent.

Medical imaging, my old career, gives a great example. You need consent for some medical imaging procedures, particularly for minors, because while the amount of radiation exposure used in medical imaging is low, and minimizing risk is a high priority, the risk is non-zero, so you need parental consent for the imaging procedure.

Similarly, Cole would have had to get parental consent for at least some of the procedures addressed in the lawsuit.

Therefore, if the courts decide that Cole’s case has merit, then that could mean that every pediatric patient who turns 18 and believes they should not have gotten that procedure (e.g. a fluoroscopic study or thyroid ablation) could sue all clinicians involved, even if consent procedures were meticulously followed.

The Hyperbole In The Reporting

There’s a significant amount of exaggeration and pearl-clutching in the language of the reporting. For example, the Daily Caller says "Suppressing healthy puberty in children with gender identity issues is an off-label use of the drug that hasn’t been approved by the FDA."

Sounds scary, right? It’s not. All it means is that a doctor is prescribing a drug for a condition it is not specifically approved for, often because the medication just needs additional study and evidence to gain that specific indication. It’s common enough of a practice that some of the medications I take are "off-label," with the main issue being that I sometimes have to argue with an insurance company whether or not my doctor’s prescription is appropriate.

The Daily Caller also says "the drug can result in permanent infertility, and its side effects are still not fully known, according to Kaiser Permanente."

The inclusion of that line is amusing for two reasons.

First, that link — preserved from the original article — goes directly to the *Testosterone Consent Information Sheet for Kaiser Permanente’s Gender Pathways clinic. Which means that the information that the Daily Caller is citing about the dangerous side effects that Cole was allegedly not told about…were taken from the informational sheet from the public-facing website of the organization that supposedly did not inform Cole of the risks of that medication.

When you cite information from someone who you claim didn’t give you that information…well, it’s a bad look.

Second, let me give you a more complete side effects list:

Headache, hoarseness, lower back or side pain, pain or tenderness around the eyes and cheekbones, painful or difficult urination, stuffy or runny nose, back pain, belching or excessive gas and constipation, lack or loss of strength, change of appetite, nausea, shivering, stomach pain, sweating, trouble sleeping, vomiting, black tarry stools, bloody nose, bloody or cloudy urine, blurred vision, continuing ringing or buzzing or other unexplained noise in the ears, difficult, burning, or painful urination, difficulty seeing at night, excessive muscle tone or tension, fruit-like breath odor, groin or scrotum pain, inability to have or keep an erection, increased body movements, increased sensitivity of the eyes to light, increased sensitivity to touch or pain, increased thirst, increased urination, loss of bladder control, loss of sexual ability, drive, or desire, menstrual bleeding occurring earlier or lasting longer than usual, mental depression, nervousness, nightmares, pale skin, paranoia, pinpoint red spots on the skin, slurred speech, swollen or tender lymph glands in the neck, armpit, or groin, unable to move or feel face, unusual bleeding or bruising, and weight loss.

Which, I admit, sounds terrifying, and doctors should go over those possible side effects…for Lipitor, the most-prescribed medication in the United States.

Lists of side effects cover every possible side effect that has been seen in a study or reported, no matter how rare. Presenting that list without discussing how often those side effects occur is simply irresponsible and deliberately misleading on the part of those who report on stories involving pharmaceuticals.

Not Merely Wrong — Misrepresenting The Science

There’s two big scientific claims that Cole, the lawyers, and the Daily Caller make that are misleading at best. Both are summed up in this paragraph from the intent to sue letter:

Defendants falsely informed Chloe and her parents that Chloe’s gender dysphoria would not resolve unless Chloe socially and medical transitioned to appear more like a male. Second, Defendants also falsely informed Chloe and her parents that Chloe was at a high risk for suicide, unless she socially and medically transitioned to appear more like a male. Chloe has been informed by her parents that Defendants even gave them the ultimatum: ‘would you rather have a dead daughter or a live son?’ Both of these statements were false."

The first claim is doubled down on by the Daily Caller like so:

Without transitioning, about 80% of children with gender identity issues will outgrow them by the time they reach adulthood.

That link goes to an article featuring Dr. Stephen Levine (who is…controversial, to put it mildly) but does not link directly to the research they are citing. I managed to find it, though; they are referring to this 2011 paper, which uses data from 1973 through 2003. From it, they also draw the term "desistance" to refer to those who "grow out" of dysphoria.

Once again, the reporting is not merely wrong, but utterly misrepresents the study. As this KQED article notes, the methodology was very flawed, as any patient that did not follow up with the researchers was counted as someone whose gender dysphoria spontaneously resolved. That is as jaw-droppingly bad science as claiming COVID-19 is over because you stopped counting infection rates.

Further, almost a third — 38 of 127 participants — did not actually meet the criteria for a diagnosis of gender dysphoria. Imagine trying to draw conclusions about any medical condition when a third of the people you’re studying don’t actually have the symptoms to get an official diagnosis.

But it gets worse. Because the lead author of that study, Thomas Steensma says that the study should not be used the way that Cole’s lawyers or the Daily Caller are as a measure of "desistance." Steensma said "Providing these [desistance] numbers will only lead to wrong conclusions." What the researchers were trying to find was a predictor of persistence, and they did find that. Quoting the KQED article:

Steensma and colleagues also culled one very specific indicator of future persistence: When asked when they were children, “Are you a boy or a girl?” those who answered the opposite of their birth sex were found more likely to have retained their gender identity in adolescence. The desistors, on the other hand, tended to merely wish they were the opposite sex.

Amusingly, that sounds a lot like what I said last week:

It’s quite simple, really. I’m willing to bet that if you asked each of those lawmakers when they "decided" to be "male" or "female," they’d say that they always knew. In which case, they just made a great case that transpeople also know what gender they are at the same ages.

In fact, if Cole, their lawyers, or the Daily Caller even read the abstract of the study they were citing, it says exactly that:

We found a link between the intensity of [gender dysphoria, or] GD in childhood and persistence of GD, as well as a higher probability of persistence among natal girls. Psychological functioning and the quality of peer relations did not predict the persistence of childhood GD…Intensity of early GD appears to be an important predictor of persistence of GD.

The other claim that’s made has two parts. Again, from the intent to sue:

Defendants also falsely informed Chloe and her parents that Chloe was at a high risk for suicide, unless she socially and medically transitioned to appear more like a male

Well, yes. Calling that "false" is pretty clearly willful ignorance on their part. Aside from the resources at the Trevor Project, a pretty standard Google Scholar search [1] turns up a number of peer-reviewed articles showing that gender-affirming care has a strong and significant reduction in suicide rates among those with gender dysphoria, including:

Well-being and suicidality among transgender youth after gender-affirming hormones.

Results: After gender-affirming hormones, a significant increase in levels of general well-being and a significant decrease in levels of suicidality were observed. Conclusion: These findings suggest that gender-affirming hormones are a valuable medical intervention with promising psychosocial outcomes for transgender youth.

Mental Health Outcomes in Transgender and Nonbinary Youths Receiving Gender-Affirming Care

This study found that access to gender-affirming care was associated with mitigation of mental health disparities among TNB youths over 1 year; given this population’s high rates of adverse mental health outcomes, these data suggest that access to pharmacological interventions may be associated with improved mental health among TNB youths over a short period.

Association of Gender-Affirming Hormone Therapy With Depression, Thoughts of Suicide, and Attempted Suicide Among Transgender and Nonbinary Youth

Use of GAHT was associated with lower odds of recent depression (adjusted odds ratio [aOR] = .73, p < .001) and seriously considering suicide (aOR = .74, p < .001) compared to those who wanted GAHT but did not receive it. For youth under age 18, GAHT was associated with lower odds of recent depression (aOR = .61, p < .01) and of a past-year suicide attempt (aOR = .62, p < .05)… [the f]indings support a relationship between access to GAHT and lower rates of depression and suicidality among transgender and nonbinary youth.

The second part of this claim is, again, not merely wrong. Again from the intent to sue letter:

…a long-term follow-up population-based study (cited below) found that gender dysphoric individuals who undergo sex reassignment continue to have considerably higher risks for mortality, suicidal behavior, and psychiatric morbidity as compared with the general population. In other words, in a large number of cases, suicidality and psychiatric issues are not resolved by sex reassignment.

The study they are citing is the 2011 paper Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden, which uses data from 1973 through 2003.

Right off the bat, you may notice an initial problem: The world in 2003 was more than a little different than the world as we enter 2023, and that was the end of the study. The year that study began was the same year the American Psychiatric Association first changed the classification of homosexuality as a mental disorder (though it wasn’t removed from their list of mental disorders until 1987). It includes the beginning of the AIDS epidemic, including the absolute refusal of Reagan to even address HIV/AIDS, let alone act. It covers the assassination of Harvey Milk. It covers the brutal murder of Matt Shepard. During the time period of that study, "Don’t Ask Don’t Tell" was the controversial and "progressive" rule in the US military (not repealed until 2010). It was only in the last year of that study (2003), with marriage equality a dozen years in the future, that SCOTUS struck down a Kansas law criminalizing consensual homosexual sex

So YEAH, small wonder that when you could literally be thrown in jail for being with your lover, when discrimination against you was enshrined in law, that you’d have some issues even after getting gender affirming care.

But again, Cole, their lawyers, and the Daily Caller failed to actually look at even the abstract of the research they’re writing (emphasis mine):

Our findings suggest that sex reassignment, although alleviating gender dysphoria, may not suffice as treatment for transsexualism, and should inspire improved psychiatric and somatic care after sex reassignment for this patient group.

The authors of that study were not concluding that gender affirming care was ineffective — they actually say it does alleviate gender dysphoria. The authors were saying that gender affirming care was not enough by itself, and that clinicians needed to ensure there was sufficient support and care for people who needed such care.

Conclusion

Look, I empathize with Cole’s predicament and pain growing up. I wish her the best of luck in her personal life, and hope that she gets the counseling and aid needed to heal.

I’ll even agree that there should be a great deal of preliminary clinical work done before anyone — regardless of age — undergoes any major surgery. Patients should be aware of risks, benefits, and possible outcomes before any procedure or series of procedures.

However, this lawsuit would, if successful, set a horrific precedent crippling all pediatric care while denying gender-affirming care to those who will significantly benefit from it.

Further, both the intent to sue letter and the surrounding coverage [2] blatantly misrepresent the very scientific papers they cite so badly that simply reading the abstract is enough to see how wrong they are.

With hospitals receiving threats for simply providing gender-affirming care (to anyone!), there is a credible argument that such sensationalized blatant falsehoods and misrepresentations — particularly with the very convenient timing — comes perilously close to meeting the criteria for incitement.

Featured Image by Filmbetrachter from Pixabay

[1] Of course you first only look at results in the last five years, have you not taken a research methods class? I’ve taught one, so…
[2] As of when I’m writing this, the Daily Caller is perhaps the most "reputable" site covering it, which is… not good?

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