One of the unsettling aspects of the challenge to Tennessee’s bar on risky gender-transition interventions for minors in United States v. Skrmetti, the case being argued before the Supreme Court on Wednesday, is its fabrication of a scientific “consensus” that does not in fact exist. One particularly interesting amicus brief in the case comes from Alabama, submitted by its attorney general, Steve Marshall. It focuses on the evidence that was effectively buried by the World Professional Association for Transgender Health (WPATH) when it sought to eliminate age limits for sterilizing chemical treatments and surgeries. Alabama has a law similar to Tennessee’s that was subject to a court challenge, and from that litigation came some troubling revelations.
Self-appointed experts at WPATH adopted the recommendation regarding age limits, purportedly based on evidence, where none was available. They hired Johns Hopkins to examine gender-transition procedures, but the team reported to the Department of Health and Human Services in 2020 that it “found little to no evidence about children and adolescents.” The authors of WPATH’s recommendations, known as Standards of Care 8 (SOC-8) published in 2022, suppressed publication of most reviews reaching that conclusion. Some authors conducted no “evidence-based review” because, as “the social justice lawyers we spoke with” believed, it “reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.” As that quote suggests, WPATH was in regular contact with attorneys on one side of the issue, and SOC-8 acknowledged the input of a senior attorney at GLAD who now represents plaintiffs in the Alabama case. One contributor was “concerned” that “language such as ‘insufficient evidence,’ ‘limited data,’ etc.” would “empower” groups that “are trying to claim that gender-affirming interventions are experimental.” Moreover, WPATH failed to implement meaningful conflict-of-interest controls; to take a prominent example, its current president made over a million dollars from transitioning surgeries last year.
Admiral Rachel Levine, HHS’s assistant secretary for health, met on numerous occasions with WPATH leaders and was sent an embargoed copy of SOC-8 to review in advance of publication. The admiral requested the removal of all age limits for gender-transition treatments, from hormones to surgery. WPATH initially pushed back since the age recommendations had been approved by the “Delphi” consensus process and could not be removed; WPATH was willing to downgrade the recommendations to suggestions. That was not enough for Levine. The American Academy of Pediatrics (AAP) also weighed in, threatening to oppose SOC-8 if the age minimums were not removed. One of WPATH’s leaders sent an urgent email asserting that AAP is “a MAJOR organization” and that its public opposition “would be a major challenge for WPATH.” WPATH gave into the demands, notwithstanding its expressed qualms “about allowing US politics to dictate international professional clinical guidelines.” But raw politics had prompted the last-minute change. It did not go through the Delphi process, was conceded by a WPATH official to be unprompted by “any new science of which the committee was previously unaware,” and not surprisingly was treated as a “highly, highly confidential” change. When the media asked questions, WPATH covered up what really happened and internally advised that “it’s best we all get on the same exact page, and PRONTO.”
The challenge to the Alabama law commenced about a year before the Tennessee litigation. An Alabama district court preliminarily enjoined the law. It overrode the state’s legislative determination by buying into the notion that “WPATH recognizes transitioning medications as established medical treatments,” and 22 “major medical associations” including the American Medical Association “endorse these guidelines as evidence-based methods for treating gender dysphoria in minors.” That was before Alabama obtained discovery from WPATH and HHS, which revealed the foregoing acknowledgements about the lack of evidence in support of WPATH’s recommendations.
Other troubling questions follow. Why did the Department of Justice decide to seek certiorari in the Tennessee case, which arose later and had only a preliminary record without discovery? After the Supreme Court granted certiorari in Skrmetti, the government tellingly filed a motion to stay all district court proceedings that would have shut down discovery in Alabama. Fortunately, the motion was denied. And while the government already had acknowledged “that there is little/no evidence about children and adolescents” on this subject, the Biden administration’s cert petition in Skrmetti asserted that there is “overwhelming evidence” backing the use of “puberty blockers and hormones” for “transgender adolescents with gender dysphoria.” The administration interestingly would quickly drop its support for sex-change surgery for minors after the story of Levine’s pressure went public this summer. Given the lack of evidence for its position across the board, why does the administration persist when it comes to puberty blockers and hormones?
That incoherence may be the least of its problems as it prepares for oral argument. The solicitor general’s “overwhelming evidence” contention, which was always baseless, is now even more so following developments that include the release in April of Dr. Hilary Cass’ comprehensive independent review of gender identity services for children and young people commissioned by England’s National Health Service. Noting the “remarkably weak evidence” in this area, the study concluded, “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.” The report included criticism of the “circularity” of WPATH’s habit of citing for support other groups that were actually relying on WPATH’s own prior recommendations. That “may explain why there has been an apparent consensus on key areas of practice despite the evidence being poor,” Cass observed. The Justice Department, for its part, has much explaining to do at oral argument.