Things are going poorly for the World Professional Association for Transgender Health. Documents unsealed in Boe v. Marshall, a lawsuit challenging Alabama’s ban on hormonal and surgical transgender procedures for minors, reveal that WPATH manipulated the evidence review process when drafting its recommendations for treating youth and adults. It then misled the public and colleagues in the medical profession, claiming that its eighth version of “standards of care” (SOC-8) was “developed using an evidence-based approach.” Eli Coleman, SOC-8’s committee chair and lead author, claimed that the SOC-8’s developers employed “the most rigorous protocol in the world to ensure these standards reflect scientific evidence and meet the needs of transgender patients.”
The documents also reveal that Rachel Levine, a top official at the U.S. Department of Health and Human Services, used an aide to pressure WPATH to eliminate age minimums for procedures including double mastectomy and genital surgery. Additionally, they showed that members of WPATH’s guideline-development group privately denounced the American Academy of Pediatrics’s 2018 policy statement on “gender-affirming care” as non-evidence based and as having “a very weak methodology.” When the American Medical Association declined to endorse SOC-8, the incoming president of WPATH dismissed AMA leaders as “probably some white cisgender heterosexual hillbillies from nowhere.”
Now, supporters of pediatric sex-trait modification are grappling with the fallout from the Alabama disclosures. Federal administrative agencies have molded their policies and legal advocacy around WPATH and SOC-8; HHS’s Levine has said that “the standard” for health-care decisions in this area is “set” by WPATH. Hospitals around the country use SOC-8 as the authoritative guideline for their providers, in some cases using it to pressure providers to set aside any doubts about the propriety of approving vulnerable teenagers for hormones.
The White House is apparently trying to deal with the fallout in two ways. First, it is sending mixed messages about its continued support for gender surgeries for kids, awkwardly balancing the demands of Democrats’ activist base with the public’s growing suspicion of a medical scandal. Second, the Department of Justice has initiated a clever legal maneuver, the effect and perhaps also intent of which is to suppress further publication of materials subpoenaed by Alabama in the Boe litigation. These materials may include internal WPATH communications, as well as communications between WPATH and other medical groups and between the organization and other federal officials.
By the end of 2023, the discovery process in Boe was wrapping up. The state had received some subpoenaed information from HHS, and almost all of what it had requested from WPATH. Meantime, U.S. District Courts in Kentucky and Tennessee, considering related litigation, had issued preliminary injunctions blocking enforcement of those states’ age-restriction laws, but the Sixth Circuit overturned these injunctions on appeal.
A preliminary injunction is an emergency-relief measure sought by plaintiffs. In effect, a court temporarily blocks enforcement of a law being challenged until a full trial can be held on the merits, which includes development of the factual record in the case. Such a trial can take years to complete. Because preliminary injunctions are temporary, plaintiffs seeking them are required only to show “likelihood” of success on the merits of their claim.
In response to the Sixth Circuit overturning the preliminary injunctions in the lower courts, the DOJ, which has been party to most of the lawsuits over state age-restriction laws, filed a petition for a writ of certiorari from the Supreme Court—meaning it asked the Court to review the Sixth Circuit’s reversal of the district court injunction decisions. If the Court rules that age limit laws are subject to rational basis review rather than strict scrutiny, it is almost certain that the lower courts will allow such laws to stand. This raises an obvious question. Why would the Justice Department ask a Supreme Court with a 6-3 conservative majority to take up this case?
The potential answer is Alabama. In December 2023, before the Supreme Court justices had even conferred about whether to grant certiorari, the DOJ petitioned the district court in Alabama—which is in the Eleventh Circuit, and in which the subpoenas against WPATH and HHS had been granted—to stop all further proceedings in that case. Typically, such requests are only made after the Supreme Court grants certiorari. The DOJ argued that it would be improper for the Alabama court to keep going if there’s even a chance that the Supreme Court will grant certiorari and rule on the appeal from the Sixth Circuit. Alabama countered that the Court should wait until there is a full factual record to rule on.
Why did the DOJ do this? Let’s start with a charitable interpretation. The more relaxed burden of proof for plaintiffs in preliminary injunction cases means that, even under a conservative-leaning Supreme Court, there is a chance that the DOJ will prevail there. Moreover, and relatedly, the sooner the Court hears the appeal from the Sixth Circuit, the less time there is for Alabama (in the Eleventh) to develop a factual record in its own lawsuit, where evidence (as we’ve seen) would almost certainly weaken the plaintiffs’ position.
There’s another interpretation, though: that the DOJ is trying to protect HHS and other federal agencies from more scandalous revelations. As revealed in the documents published in the North Carolina case, in August 2020, the Agency for Healthcare Research and Quality, an entity within HHS charged with conducting systematic reviews, learned that researchers at Johns Hopkins University were already conducting (WPATH-commissioned) systematic reviews of evidence for gender transition. The Johns Hopkins research team lead, Karen Robinson, informed AHRQ in an email that her team “found little to no evidence about children and adolescents.”
Nevertheless, in the years that followed, HHS informed the public in official statements that “gender-affirming care” for minors was an evidence-based practice. In a document published by the HHS Office for Population Affairs in 2022, for instance, the agency wrote that “For transgender and nonbinary children and adolescents, early gender-affirming care is crucial to overall health and well-being as it allows the child or adolescent to focus on social transitions and can increase their confidence while navigating the healthcare system.” It emphasized that “Research demonstrates that gender-affirming care improves the mental health and overall well-being of gender diverse children and adolescents.” Either OPA didn’t know about the exchange between its sister subagency AHRQ and Johns Hopkins, or it was lying. That same year, HHS’s Levine, whose pressure campaign on WPATH was already underway, told NPR that “there is an evidence-based standard of care” for youth and that “That standard is set by the World Professional Association for Transgender Health.”
HHS also passed rules to expand and protect the practice. And the DOJ has intervened in numerous age-restriction lawsuits, arguing in its legal briefs that WPATH’s “standards of care” regarding minors are evidence-based.
In other words, the DOJ is likely trying to get the Court to hear the case with the less complete evidentiary record. It may also be using the appeal to try to halt release of more information in the Alabama case, as that material could further expose WPATH and shed more light on how HHS and other executive-branch officials misled the American public about youth gender transition. And the DOJ is trying to do all this while prosecuting and intimidating medical professionals who have blown the whistle on these practices.
On June 24, 2024, the Supreme Court granted the DOJ’s motion to hear the appeal from United States v. Skrmetti, the Sixth Circuit case dealing with the preliminary injunction in Tennessee. One week later, on July 2, the district court in Alabama (Boe v. Marshall) cited the Supreme Court’s decision to grant cert in Skrmetti as a justification to put its own proceedings on hold, making some exceptions for technical legal matters. Though the lower court may still grant motions to unseal further documents, its decision to delay the trial until after the Skrmetti ruling next year makes it less likely that this will happen.
If the DOJ’s legal maneuver was really a thinly veiled effort to delay further release of potentially damning communications, that bid seems to have worked, at least for the time being.
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