Sometimes being wrong would feel easier. It would be so much more comforting to believe the distressed children who claimed to be the opposite sex. That the clinicians who medicated them were abiding by the golden rule of medicine: first, do no harm. That the politicians and celebrities who championed ‘trans kids’ had done their homework. That they all knew something the rest of us did not. But, with $2million awarded to a young American woman who had a double mastectomy at 16, because she believed she was a boy, it seems the so-called transphobes and bigots were, depressingly, right.
Earlier this week, 22-year-old Fox Varian won a case against her former psychologist, Dr Kenneth Einhorn, and the plastic surgeon, Dr Simon Chin. At 16, she had her healthy breasts removed on the recommendation of the former and under the scalpel of the latter. A jury in New York state found that basic safeguards were skipped, informed consent was not obtained and accepted standards of care were ignored. Einhorn and Chin were found liable for medical malpractice. The $2million payout may sound substantial, but no amount of money restores amputated body parts, particularly when they were removed from a psychologically unwell teenager by professionals tasked with protecting her.
Varian’s backstory is a full bingo card of ‘trans kid’ red flags. At seven, her parents separated acrimoniously, leading to a custody battle and estrangement from her father. By 15, she believed she was a boy, bound her breasts and changed her name to Rowan. She carried a dossier of mental-health problems: autism, depression, anxiety and an eating disorder. Yet instead of helping her, Einhorn affirmed her belief that she was really a boy and, within months, she was on a pathway to surgery.
Varian’s lawyer, Adam Deutsch, stressed that Einhorn had no experience treating patients ‘questioning their gender identity’. That she was not referred to an ‘LGBTQ specialist’ counsellor counted against Einhorn, as did the fact he had labelled her distress ‘body dysmorphia’ and not ‘gender dysphoria’.
This argument reveals something uncomfortable. The problem here is not merely that the wrong box was ticked – as the jury appears to have concluded. The verdict leaves open the possibility that, had Varian been funnelled to the ‘right’ specialist using the preferred diagnostic language, where she would still have likely been affirmed and medicalised, there would be no legal consequences.
Nonetheless, the verdict is still a hammerblow for trans activists. For years, American medical bodies moved in step with activist demands. Now, with at least 28 similar lawsuits looming across the US, the tone is changing. This week, the American Society of Plastic Surgeons has advised against transition surgeries for anyone under the age of 19. The American Medical Association has this week also acknowledged the evidence base for such interventions in children is weak and that they should be deferred to adulthood. These are cautious but nonetheless pronounced shifts, and mark a retreat from the certainty that prevailed even five years ago. The consensus is fraying under legal and financial pressure.
Britain should be watching carefully, because America is not an outlier but a warning. We have seen the same surge in referrals, the same cohort of vulnerable girls, the same overlap with autism, same-sex attraction and poor mental health, the same social contagion. The Cass Review already showed how flimsy the evidence is for treating children confused about their sex. Yet even now, the Pathways Trial of puberty-blocking drugs is being rolled out, under the auspices of the NHS. As Sex Matters co-founder Maya Forstater has warned, the study places no limit on how many children could ultimately be recruited, raising obvious ethical questions about scale and risk.
Forstater has also pointed out that the ethics committee of England’s Health Research Authority (HRA) did not probe the core rationale for the supposed ‘treatment’ these children are to be subjected to. The minutes show members failed to ask whether a child’s hope of living as the opposite sex is realistic, did not examine whether children and parents could properly weigh the harms, and failed to clarify what ‘sex’ or ‘gender’ meant. How can children be ‘affirmed’ in their correct gender if the specialists treating them don’t even know what these definitions mean?
Back in 2019, I wrote that this would become a medical scandal with dire consequences, and that the only clear beneficiaries would be lawyers. I didn’t want to be right. But litigation now looks more likely to stay the hands of counsellors and surgeons than ethical reflection ever did.
At present, despite claiming to be ‘uncomfortable’ about the trial, health secretary Wes Streeting is hiding behind the experts at the HRA. But British clinicians are not immune from negligence law. NHS indemnity is not infinite. And the families of harmed children in the UK are already watching events in the US.
It is now inevitable that dim-witted politicians will have to face the harms of gender medicine. There will be no moral atonement, but there will at least be a financial reckoning. These treatments will end not because politicians will find their courage, but because they will become too risky and too expensive to defend.
Jo Bartosch is co-author of Pornocracy. Order it here.
