Solicitor General’s Rhetorical Retreat on Transgender Interventions Masks Persisting Distortions

To answer my question from last week: In the Biden administration’s opening merits brief in United States v. Skrmetti, Solicitor General Elizabeth Prelogar has abandoned the two propositions of “overwhelming” nonsense that she set forth in her certiorari petition—namely, that (1) “overwhelming evidence establishes that appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical and psychological wellbeing of transgender adolescents with gender dysphoria,” and (2) that “the overwhelming consensus of the medical community” supports administering puberty blockers and cross-sex hormones to minors. But while she has retreated from her outlandish rhetoric, she continues to hinge her legal claims on factual assertions that are false.

Prelogar now asserts: “Medical evidence and clinical experience demonstrate that such care [i.e., puberty blockers and cross-sex hormones], provided in appropriate cases, meaningfully improves the health and wellbeing of transgender adolescents with gender dysphoria.” She objects that Tennessee “rejected the medical consensus” on such treatments.

1. Prelogar conspicuously fails even to mention, much less grapple with, the findings of the Cass Review, the comprehensive 388-page report commissioned by England’s National Health Service. Over the course of four years, Dr. Hilary Cass commissioned nine systematic evidence reviews, assessed clinical guidelines, and reviewed data from NHS’s (now terminated) Tavistock Centre on pediatric gender care.

The Cass Review bluntly concludes that there is “remarkably weak evidence” that might weigh in favor of medical interventions on children and young people: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.” (Emphasis added.)

Among its many findings:

• “The systematic review showed no clear evidence that social transition in childhood has any positive or negative mental health outcomes, and relatively weak evidence for any effect in adolescence.”
• On puberty blockers: “[N]o changes in gender dysphoria or body satisfaction were demonstrated. There was insufficient/inconsistent evidence about the effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, cardio-metabolic risk or fertility.”
• On cross-sex hormones: “There is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence, and few studies that undertake long-term follow-up. No conclusions can be drawn about the effect on gender dysphoria, body satisfaction, psychosocial health, cognitive development, or fertility. Uncertainty remains about the outcomes for height/growth, cardiometabolic and bone health. There is suggestive evidence from mainly pre-post studies that hormone treatment may improve psychological health, although robust research with long-term follow-up is needed.” (Quoting University of York “systematic review.”)

The Cass Review vindicates the judgment of the Tennessee legislature, which (among other things) cited “health authorities in Sweden, Finland, and the United Kingdom” that “have found no evidence that the benefits of these procedures [for minors] outweigh the risks.”

2. Even more amazingly, Prelogar invokes the supposed “evidence-based guidelines” issued by WPATH (World Professional Association for Transgender Health), which she says “[t]he Nation’s leading medical and mental health organizations recognize … as reflecting the accepted standard of care for treating gender dysphoria.” She thus would try to blind the justices to the fact that WPATH has been exposed and discredited as thoroughly politicized.

As journalist Jesse Singal explains in “Unsealed Court Documents Show That Admiral Rachel Levine Pressured WPATH To Remove Age Guidelines From The Latest Standards Of Care,” there is strong evidence that WPATH eliminated its minimum age requirements for various medical interventions in response to pressure from a Biden administration official (and transgender activist). More broadly, discovery in a case in Alabama has revealed (as Alabama’s motion for summary judgment states and extensively supports) that WPATH:

• violated multiple international standards for the creation of clinical guidelines that WPATH itself claimed to follow in Standards of Care 8 (“SOC-8”);
• restricted the ability of SOC-8’s evidence review team to publish the systematic evidence reviews finding scant evidence for transitioning treatments;
• intentionally used SOC-8 as a political and legal document to increase coverage for transitioning treatments and advance WPATH’s political goals;
• caved to outside political pressure by Admiral Rachel Levine and others to remove age minimums for hormones and surgeries in SOC-8; and
• “muzzle[d]” WPATH members who tried to inform the public of their concerns over pediatric transitioning treatments.

There is no reason to believe that the positions set forth by medical associations in group amicus briefs (rather than in formal policy statements adopted after review of the evidence) reflect the considered scientific assessment of those associations rather than the bullying of political activists. But insofar as there can be said to be an American “medical consensus” that sharply departs from the international practice (see point 1 here), why should Tennessee be obligated to respect such a consensus, especially when its origins are so suspect?

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Beyond their unsound factual predicate, the Solicitor General’s legal claims are badly flawed in plenty of other ways. I look forward to addressing them.