It’s a Scam

Andrew Ferguson, Chairman of the US Federal Trade Commission speaks on the fraud that is “gender-affirming care”

“Would you rather have a living son or a dead daughter?” This arm-twisting ultimatum is all too familiar to many parents of gender-distressed children and adolescents. Based on the myth of suicidality, it suggests in the strongest possible terms that if parents don’t affirm their child’s transgender identity, they will almost certainly kill themselves. The message is clear: We, the experts, are telling you that “untreated gender dysphoria leads to an extreme suicide risk, and the benefits of offering medical transition on demand outweigh the expected likelihood of medical risks (like damaged health or regret)”.

Are the professionals purveying this advice to parents really helping their children, or are they making them an offer they can’t refuse? Is “gender-affirming care” an effective and proven treatment for gender dysphoria that meets the highest professional standards of health care? Or does it, as Andrew Ferguson, Chairman of the Federal Trade Commission (FTC), suggested at Genspect’s Detrans Awareness Day event in Washington, represent the “downright criminality of preying upon the sick as well as the consuming public”? The FTC is investigating.

Legal Challenges to Gender Ideology in the U.S.

The FTC’s action on fraud and consumer protection is not the first brush with the law for purveyors of trans ideology in the U.S. Issues of free speech, parents’ right to opt their children out of LGBTQ-related classes, school sports, family law, and foster care are all being contested in the courts. More than 25 states have so far passed laws prohibiting “gender-affirming” medical procedures on children. The U.S. transgender healthcare rights movement suffered a major setback when it lost its challenge to the constitutionality of state bans before the Supreme Court in the Skrmetti case. How these struggles play out at the state level, however, may well depend on the composition of the judiciary in the states where cases are brought.

Detransitioners, too, are taking their physicians and therapists to court on the grounds of medical malpractice. A jury in New York awarded Fox Varian, a detransitioner who underwent a double mastectomy at age 16, 2 million dollars in damages because her therapist and surgeon did not follow accepted standards of care in treating her gender dysphoria. Shortly after the trial, the American Society of Plastic Surgeons recommended that such procedures should not be performed before age 19, and the American Medical Association agreed that surgical interventions for minors should be generally deferred to adulthood. Both organizations cited the lack of evidence to support such procedures. Nonetheless, there are many barriers to this kind of litigation, including costs, the statute of limitations, and the sheer difficulty, length, and potential trauma for litigants.

However difficult they may be, these lawsuits are important because they send a clear message to surgeons and mental health professionals that their actions will have consequences. But they are also, in some ways, a reflection of the light-touch regulation of the medical industry and the reliance on medical malpractice laws in the United States. There’s very little regulation on what doctors can’t do.

Protecting Consumers from Fraudulent Claims

This is why the FTC’s investigation is so important. Where resources are so thinly spread, it is hugely significant that a government agency is now stepping up. Although the present U.S. administration has taken steps to restrict the funding of hospitals providing puberty blockers, cross-sex hormones, and surgical “gender-affirming” treatments through Medicare and Medicaid via executive order, such EOs may be challenged in court or revoked by a new administration. The FTC’s use of consumer protection law could well be more promising.

Since 1938, the FTC has had the power to target unfair or deceptive acts and practices that harm consumers, and to take action against false or misleading health claims. This includes the kind of claims made by snake oil salesmen advertising herbs and spices as cures for cancer, as well as those made by powerful pharmaceutical companies. This, as Andrew Ferguson explains in his talk here, is a bipartisan view of the FTC’s mandate. In order to be successful, FTC investigators must demonstrate that a deceptive act or practice is likely to mislead consumers, either through commission (for example, by making false or misleading claims) or by omission (such as failing to disclose certain information).

In the case of “gender-affirming” care, this would be the case if a child or parent would not have chosen puberty blockers had they been aware of the risks associated with those drugs. Specifically, in Ferguson’s words, “if medical providers or other third parties present children and their parents with claims about the effects of puberty blockers, cross-sex hormones or surgical operations, these medical providers have a legal duty to ensure that their claims are substantiated and not false or misleading.” History shows that the more vulnerable the population, the more likely they are to be targeted with deception. Health care scams take advantage of people’s desperation by promising a cure that is claimed to be scientifically proven, and that will succeed where all conventional medical treatments have failed.

Language that Deceives and Misleads

The aim of the FTC is not to pursue partisan or ideological concerns, but to ensure that those who make claims about the treatment of vulnerable children are held to the same standards as other sorts of healthcare, particularly healthcare for children and young adults. This means that the claims made by providers and advocates of “gender-affirming” care must be based on evidence. And the evidence – or the lack of it – must be communicated to those weighing up the choice of making life-altering changes to their body. Andrew Ferguson is “committed to the principle that every person ought to be able to make an informed choice about their own path to healing without fear of being deceived by those who stand to profit from certain medical interventions”.

Evidence for the effectiveness of medical interventions for gender dysphoria is not there. This is one of the reasons why advocates of medical interventions have shifted their focus towards autonomy and embodiment goals rather than health benefits. These are the shifting sands of gender ideology that play havoc with language itself. As Glenna Goldis, the FTC’s head litigator, points out, the language of gender has become utterly confused. Deliberately so. Those who advocate for the affirmation of transgender identities in all contexts, and following on from that, the necessity of medicalizing on demand, have turned the meaning of words on their head. They press their arguments using terms that rely on circular definitions or that are so vague as to mean almost anything.

Dishonest Gangsterism and Honest Debate

But words and language are central to law. As Lawrence Solan, in his influential work on the language of judges, has argued, when the legal interpretation of words and language is unclear or disputed, judges – even Supreme Court judges – tend to covertly revert to their political convictions to decide cases. Ultimately, the courts are unlikely to be the forum at which legitimate conflicts about competing value judgments will be settled. According to the philosopher John Gray, issues such as these must be debated openly and decided in the political realm. Moral arguments and disagreements cannot be avoided and left to judges whose conceptions are “inherently and unalterably political” and whose political opinions have no more authority or value than anyone else’s.

There is no substitute for open debate in the political realm and the media. As Andrew Ferguson says in this speech, this also means listening to the voices of those who have been ignored for far too long: the detransitioners whose “suffering has been leveraged for profit by unscrupulous surgeons and therapists”. There is no substitute for honesty. There must be a reckoning for those who advocate for medical interventions with no regard for the truth of whether they are safe or work as intended. Holding a gun to a vulnerable person’s head and making a gangster’s offer that cannot be refused not only violates the law, it is also morally delinquent. A scam is a scam. The FTC is working to shut down the fraudulent practice of “gender-affirming” care.

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