Historically situating malpractice lawsuits in transgender medicine

A few words on the recent detransition lawsuit in the United States.

History doesn't repeat, but it often rhymes. How should we make sense of malpractice lawsuits in transgender medicine?

Last week, a young neurodivergent detrans woman who had accessed a double mastectomy/top surgery at age 16 was awarded $2 million dollars in damages. It is thought to be the first malpractice verdict in gender-affirming care for minors. There are currently more cases like it making their way through the courts, which is likely one reason why the American Society of Plastic Surgeons has issued new guidance on surgeries in <19s. The socio-political context surrounding trans medicine has a long history of leading to expansions and contractions. We have been living through a restriction period for the last 5 years, affecting numerous jurisdictions and predominantly relating to pediatric care.

Malpractice lawsuits in transgender medicine are not new. In my 15+ years in trans communities, I have known of trans people (mostly trans men) who have experienced serious complications from surgery and subsequently brought suits against their surgeons. Since even long before my time, trans whisper networks have warned of surgeon “butchers” to avoid. The story of “Table Top Brown” who eventually received prison time for some especially atrocious practices is one exemplar of surgeons who have caused harm to vulnerable, often desperate, patients.

Author, researcher, and trans activist Dallas Denny periodically posted warnings about Brown for years. Among transsexuals he was known as “Table Top Brown” for his willingness to operate on kitchen tables (which sometimes collapsed), as well as in garages and motel rooms.

Today, you can find similar posts on Reddit in trans forums with trans people reporting poor, sometimes life-threatening, surgery experiences. (Most common with genital surgeries.)

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Detransition lawsuits are distinct, but they too are not new. A prescient example occurred in the early 2000s when a detransitioned Australian man named Alan Finch organized a support group for several detransitioners he had met. This group was called “Gender Menders.” Finch later brought forward a malpractice lawsuit, seeking damages from the Monash Medical Centre in Melbourne, stating he was misdiagnosed as a “primary transsexual” and was outraged at mental health professionals for supporting the transition. In response, Kristine Johnson, secretary for the Australian Transgender Support Association of Queensland said the process was strict, but “not foolproof.” In her interview with Melbourne’s The Age, Johnson suggested Finch’s case was a rarity and that he was avoiding taking “responsibility for the decision he made.” By 2009, the clinic was temporarily closed for an investigation after at least eight people came forward with regrets, and at least three former patients sued the clinic.

Hindsight is 20/20. Rather than learn from patients who felt let down or hurt by treatments they thought would help them (and developing formal supports for these clinical scenarios), the field of gender-affirming care went in a different direction. While there were several studies on regret/detransition/transition reversal conducted in the 1980s, 1990s, and the early 2000s, research on the subject was essentially dropped until 2018. It became unspeakable. By 2016-2017 some detrans people began connecting with each other and conducting their own online surveys. Around the time of Bell v Tavistock— the judicial review of the Gender Identity Development Service at the Tavistock in London brought by a young detransitioned woman—questions about detransition were being raised by medical societies, governments, and trans-skeptical parent advocacy groups around the world. By 2021, new original research on detransition was underway led by several different teams of researchers.

It is hard to predict at the moment the significance of detransition lawsuits brought by young people who transitioned as minors. Within discourse about trans rights or gender-affirming care, PhD student Kirsty Rackliff has written about the way that detransitioned people are viewed depending on one’s pre-conceived notions and ideology; who evokes sympathy by whom? She writes that:

[T]he legitimacy granted to detransition experiences will depend on how well they fit a particular chosen narrative. If detransition is indicative of an inherent incompetence within, or even deliberate strategic manipulation of patients by, the pharmaceutical industry, then it has to be defined by medical abuse.

Conversely, if detransition, especially with severe regret, is understood exclusively as a weapon wielded by anti-trans actors, then its very existence must proactively denounce this weaponisation. In other words, within these understandings, ideal detransitioners can either be damaged victims, or non-victimised allies to the transgender rights movement…

Detransitioners can experience rejection from previous support systems, particularly LGBTQ+ ones, by virtue of the negative connotations detransition holds (MacKinnon et al., 2022; Vandenbussche, 2022). Therefore, within progressive/leftist landscapes, acceptance of detrans people is dependent on their ongoing positive feelings about initial transition, and the vocal rejection of other detransitioners claiming victim status.

There is a lot to say about the relationships between political conditions, anti-trans sentiments in society and medicine more broadly, and clinical care conditions in the field of trans medicine is today. I hope the coming years will include a lot of careful and nuanced research, the development of LGBTQ+ support groups for people who are detransitioning or questioning their initial transitions, and resistance to polarized all-or-nothing solutions. But all of this is easier said than done given the politics that have unfolded around trans medicine over the last 10-15 years.