Court Ruling Gets Right What Corporate News Often Gets Wrong About Gender-Affirming Care

A federal judge issued a temporary injunction this month that partially blocked enforcement of Florida’s ban on gender-affirming care for minors. In a 44-page opinion, Judge Robert Hinkle offered a lengthy rebuke of the arguments presented by the state of Florida to medically justify banning gender-affirming care—which happen to be many of the same arguments that corporate media have uncritically parroted.

In the ruling, Hinkle wrote:

In support of their position, the defendants have proffered a laundry list of purported justifications for the statute and rules. The purported justifications are largely pretextual and, in any event, do not call for a different result.

To bolster their legal case, Florida Gov. Ron DeSantis’ administration hired consultants and expert witnesses from anti-trans organizations, including the American College of Pediatricians (ACPeds), which has been designated a hate group by the Southern Poverty Law Center, to make false and misleading claims about the science behind gender-affirming care. Right-wing media outlets regularly give such sources a platform to make those claims (e.g., Fox News 3/30/23; New York Post, 1/30/23; Federalist, 2/1/23), but centrist outlets, too, often credulously air such claims, laundering them for a mainstream audience.

Claim #1: The evidence for gender-affirming care is “low quality”

This does not mean that doctors cannot confidently make recommendations based on “low-quality” evidence. Pediatricians firmly recommend not giving aspirin to children for fevers, even though its association with Reye’s syndrome is not based on randomized trials, because such experiments would be unethical. As the guidelines make clear:

A particular level of quality does not imply a particular strength of recommendation. Sometimes, low- or very low–quality evidence can lead to a strong recommendation.

Hinkle’s opinion dispenses with the state’s “low quality” argument, pointing out that it omits the important context about how often treatments with such evidence are commonly accepted:

It is commonplace for medical treatments to be provided even when supported only by research producing evidence classified as “low” or “very low” on this scale. The record includes unrebutted testimony that only about 13.5% of accepted medical treatments across all disciplines are supported by “high”-quality evidence on the GRADE scale.

The Economist didn’t see any need for such nuance, though. A lengthy article titled “The Evidence to Support Medicalised Gender Transitions in Adolescents Is Worryingly Weak” (4/5/23) justified its headline by citing “low-quality” evidence, absent any context about how common that is. For instance: “WPATH, for its part, did look at the psychological effects of blockers and hormones. It found scant, low-quality evidence.” And: “For both classes of drug, NICE assessed the quality of the papers it analyzed as ‘very low,’ its poorest rating.” The piece closed on the same note: “It is impossible to justify the current recommendations about gender-affirming care based on the existing data.”

Reuters (10/6/22) similarly published a “special report” about gender-affirming care for youth that emphasized the “uncertain ground” of “[going] the medical route,” with a subhead announcing that families “must make decisions about life-altering treatments that have little scientific evidence of their long-term safety and efficacy.”

The same kinds of misleading claims about quality of evidence have appeared in columns at the Washington Post (5/2/23) and Newsweek (2/22/22).

Claim #2: Puberty blockers “lock in” kids’ gender identities

The New York Times, which has become notorious for its bad coverage of trans issues, has at least twice (6/9/23, 11/14/22) uncritically presented the speculative claim that puberty blockers “lock in” kids on a pathway toward subsequent treatment with cross-sex hormones. Both articles cited a portion of a report by Dr. Hillary Cass, commissioned by the English National Health Service to review its gender-identity services:

“The most difficult question is whether puberty blockers do indeed provide valuable time for children and young people to consider their options, or whether they effectively ‘lock in’ children and young people to a treatment pathway,” Dr. Hilary Cass, the pediatrician overseeing the independent review of the NHS gender service, wrote last year.

The Cass review provided no studies indicating that blockers “lock in” children toward a treatment pathway. Instead, it cited two small studies showing that nearly all participants who start blockers (96.5% and 98%) proceed to cross-sex hormones.

Hinkle’s ruling points out two problems with this claim that the Times doesn’t. First, this is correlation, not causation. Second, there’s a more plausible explanation, backed by research, that most kids proceed to cross-sex hormones because they had persistent transgender identities before starting blockers:

The defendants note that 98% or more of adolescents treated with GnRH agonists progress to cross-sex hormones. That is hardly an indictment of the treatment; it is instead consistent with the view that in 98% or more of the cases, the patient’s gender identity did not align with natal sex, this was accurately determined, and the patient was appropriately treated first with GnRH agonists and later with cross-sex hormones.

Other centrist outlets, such as NPR (10/26/22) and the Daily Beast (10/22/22), came to the same conclusion as Hinkle, that 98% of kids going on to cross-sex hormones suggests they were properly treated with blockers. As the Daily Beast wrote:

These results run contrary to one of the major political talking points against gender-affirming care for transgender youth: that kids, when given time and space, largely move past gender dysphoria. This false narrative has been used to justify bans for gender-affirming care, despite this study confirming past research about transgender youth who seek medical transitions for gender dysphoria.

The Times, however, went with a kinder and gentler version of the Heritage Foundation’s take on this phenomenon, as spelled out in the Daily Signal (6/17/22):

By encouraging minors to “pause” puberty, physicians and transgender activists are inevitably forcing those children to take cross-sex hormones and permanently mutilate their bodies, which only furthers gender dysphoria, hopelessness and suicidal thoughts, the very things they claim to be working against.

Claim #3: Europe is banning gender-affirming care

England, Sweden and Finland’s restrictions on gender-affirming care have become fodder for Republicans seeking to ban that care in states across the US. What they don’t mention is that care remains available under these countries’ national health systems in certain circumstances, and adolescents who can’t get gender-affirming care under the new guidelines can still freely obtain it from private clinics.

Hinkle called out the fallacy of comparing Florida’s total ban on care to what is happening in Europe:

A heading in the defendants’ response to the current motions is typical: “Florida Joins the International Consensus.” The assertion is false. And no matter how many times the defendants say it, it will still be false. No country in Europe—or so far as shown by this record, anywhere in the world—entirely bans these treatments.

Freida Klotz writing for the Atlantic (4/28/23) doesn’t ignore this distinction entirely. She just buries it deep within a story headlined “A Teen Gender-Care Debate Is Spreading Across Europe.” The lead asserts a direct comparison between what is happening in certain European countries and in red states in the US:

As Republicans across the US intensify their efforts to legislate against transgender rights, they are finding aid and comfort in an unlikely place: Western Europe, where governments and medical authorities in at least five countries that once led the way on gender-affirming treatments for children and adolescents are now reversing course, arguing that the science undergirding these treatments is unproven, and their benefits unclear.

Four paragraphs into the article, we get a very brief mention in passing that Europe has not banned these treatments: “But doctors do not agree, particularly in Europe, where no treatments have been banned, but a genuine debate is unfurling in this field.”

Klotz waits until 2,500 words into the article to really spell out the critical distinction that doctors are not being criminalized in Europe, and can even prescribe these treatments against the guidelines:

Indeed, doctors in the Netherlands are still free to provide gender-affirming care as they see fit. The same is true of their colleagues in Finland, Sweden, France, Norway and the UK, where new official guidelines and recommendations are not binding. No legal prohibitions have been put in place in Europe, as they have been in more than a dozen US states, where physicians risk losing their medical license or facing criminal sanctions for prescribing certain forms of gender-affirming care.

Forbes (6/6/23) also buried this information at the end of a more than 1,400-word commentary about gender-affirming care restrictions in Europe. But to Forbes and the Atlantic‘s credit, at least they get to it eventually.

Jonathan Chait, on the other hand, didn’t even bother mentioning the distinction in his New York column (2/17/23) that cites European restrictions as a justification for corporate media’s endless coverage of the supposed “scientific debate” around gender-affirming care.

Claim #4: US medical associations can’t be trusted

Gender-affirming care for adolescents is endorsed by all major US medical associations, including the American Academy of Pediatrics (AAP), American Medical Association, American Psychological Association and the Endocrine Society. Republicans have a ready-made explanation for this: These organizations have been captured by activists, and are following “wokeness” rather than science.

To bolster their claims, they point to a small minority of anti-trans activist doctors who claim that their voices have been stifled within these organizations. Hinkle didn’t buy that argument:

It is fanciful to believe that all the many medical associations who have endorsed gender-affirming care, or who have spoken out or joined an amicus brief supporting the plaintiffs in this litigation, have so readily sold their patients down the river. The great weight of medical authority supports these treatments.

The Economist (7/28/22) buys it, though. An article headlined “Questioning America’s Approach to Transgender Healthcare” centered on a letter from the organization Genspect that called on the American Academy of Pediatrics to review its policies on gender-affirming care:

Genspect, an international group of clinicians and parents, wrote to the AAP calling for a “nonpartisan and systematic review of evidence,” saying: “Many of our children have received this care and are anything but thriving.”

“An international group of clinicians and parents” is a generous way of describing Genspect, making it seem like a broad coalition of experts questioning the AAP’s guidelines. The Economist leaves out the fact that the organization opposes medical transition for anyone under the age of 25, and supports conversion therapy.

Helen Lewis, in an “Ideas” piece for the Atlantic (5/4/23), argues similarly that US medical organizations have caved to pressure from activists rather than following evidence-based practices:

To skeptics, the American medical guidelines appear less evidence-based than consensus-based. A sharper way to put that would be that medical associations, under political pressure from activists, may have succumbed to well-intentioned groupthink.

Lewis cites a BMJ article (2/23/23) by Jennifer Block, headlined “Gender Dysphoria in Young People Is Rising—and So Is Professional Disagreement,” as “accurately describ[ing] the flimsiness of the current evidence” on which American medical organizations are basing their guidelines. That BMJ article opened with an anecdote giving the impression that gender-affirming care was a hotly debated topic at the AAP’s 2022 convention:

Last October the American Academy of Pediatrics (AAP) gathered inside the Anaheim Convention Center in California for its annual conference. Outside, several dozen people rallied to hear speakers including Abigail Martinez, a mother whose child began hormone treatment at age 16 and died by suicide at age 19. Supporters chanted the teen’s given name, Yaeli; counter protesters chanted, “Protect trans youth!” For viewers on a livestream, the feed was interrupted as the two groups fought for the camera.

Block failed to mention that for all of the theatrics, supporters of a resolution to reconsider the AAP’s stance on gender-affirming care could not even get the necessary co-sponsors to bring it to a vote.

The BMJ article is filled with a number of other misleading claims and references, including the mention of detransitioner Chloe Cole, saying she “had a double mastectomy at age 15 and spoke at the AAP rally.” It leaves out that Cole works with right-wing politicians to ban gender-affirming care.

It says a major NIH study on gender-affirming care “doesn’t include a concurrent no-treatment control group,” without mentioning that such a group would be unethical by World Medical Association standards. And it relies on the misleading claim of “low-quality” evidence, absent any context about how common this is with other treatments.

Block’s BMJ article has also been cited by ACPeds in a lawsuit against the United States Department of Health and Human Services (HHS) over a rule prohibiting discrimination on the basis of gender identity in federally funded health services. Missouri Attorney General Andrew Bailey pointed to it in a letter to Kansas City police officers urging them to enforce his ban on gender-affirming treatments, and it was used by an expert witness for the state of Florida in defense of denying Medicaid coverage for gender-affirming treatments.

The Economist’s coverage was also cited in the ACPeds lawsuit, and the New York Times’ coverage of gender-affirming care has been routinely cited by Republicans seeking to roll back trans peoples’ rights to access gender-affirming treatments.

Block has deflected criticism by saying it’s “bad faith” not to discuss the issue just because Republicans have anti-trans motivations for banning gender-affirming care. Discussion, though, is not the problem; it’s that the coverage by these publications is highly misleading. Republicans are citing these articles from centrist sources, not because they discuss the issue, but because they uncritically repeat their talking points.