The Liberty Daily 
(The Daily Signal)—Democrats, activist groups, and medical associations have long cited the World Professional Association for Transgender Health’s Standards of Care as the ultimate authority on a scientific “consensus” for sex-rejecting procedures, but WPATH just made an admission in court that threatens to undermine that exalted authority.
The Federal Trade Commission and four state attorneys general sued WPATH in June, alleging that the association engaged in deceptive practices by promoting “gender-affirming care” that causes harm to patients, particularly minors who cannot provide informed consent. Late last month, WPATH urged the court to dismiss the lawsuit, claiming that the government was retaliating because it disagreed with the association’s protected speech.
The association defended its Standards of Care as “opinion” protected by the First Amendment on subjects considering “medical and scientific uncertainty” in a debate with more than one reasonable position. The group also cited a Supreme Court ruling that upheld state laws forbidding “gender-affirming care“—a decision WPATH itself has loudly condemned in the past.
Admitting WPATH’s ‘Opinion’
In its case against WPATH, the Federal Trade Commission presented “core deceptive statements” based on the eighth edition of WPATH’s Standards of Care, claiming that these statements mislead consumers into self-harm. The association claims that those statements “are non-actionable opinions about subjects on which there is ‘medical and scientific uncertainty.’”
The association claims that the statements are not the kind of claims that the FTC is designed to regulate. The motion cites appellate precedent stating that “a challenged statement must make a specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.”
Yet, if the newest edition of the standards of care is not “reasonably interpreted as a statement of objective fact,” that should undercut the medical groups—such as the American Academy of Pediatrics and the American Medical Association—that treat the standards as gospel when it comes to transgender “care.”
‘Medical and Scientific Uncertainty’
Last year, the Supreme Court ruled that states had the right to ban sex-rejecting procedures for minors in the case U.S. v. Skrmetti. WPATH loudly condemned the decision, calling it “a dangerous setback for transgender health and human rights in the United States.”
Yet WPATH repeatedly cited the Skrmetti decision in its motion to dismiss the FTC complaint.
“The Supreme Court has recently addressed the ‘medical and scientific uncertainty’ regarding transgender health care for minors and concluded that it ‘underscore[s] the need’ for states to have ‘legislative flexibility,’” the motion states, citing Skrmetti. “The FTC cannot erase that ‘flexibility’ by declaring deceptive certain statements about care that states not only permit but deem necessary.”
WPATH opposed state restrictions on sex-rejecting procedures when Republican legislatures enacted them. Now, citing Skrmetti, it is arguing that states do have the right to make their own laws on these procedures. Whatever the legal merits of this argument, it marks a significant rhetorical shift.
Acknowledging the Other Side
The transgender movement has been notorious for demonizing its opposition. Groups like the Human Rights Campaign have suggested that disagreement with transgender ideology contributes to suicide, and social media companies have silenced critics for similar reasons.
Now, the transgender movement’s sainted authority on medical issues is effectively admitting that there is more than one position on the issue—and telling a court that preserving open debate on transgender “health care” is a public good.
The FTC and state attorneys general “acknowledge that there are parties on both sides of this medical debate,” WPATH wrote in the filing. “WPATH is on one side of that debate and provides guidelines on how to best provide transgender health care. Others, such as Dr. Hilary Cass, fall on the other side of the debate and disagree with how to, or if one should, provide transgender health care to adolescents.”
The government agencies are “now improperly attempting to insert themselves into the middle of this medical debate and silence those with whom they disagree,” the association stated.
WPATH even begrudgingly admits the validity of the Department of Health and Human Services’ 400-page peer-reviewed report finding “extremely weak evidence” of any benefit for “gender-affirming care” for minors. “The federal government has thus already alerted doctors and the public to what it views as the problems with WPATH’s speech,” the association wrote. “That is the exact remedy the First Amendment envisions: ‘the free marketplace of ideas as the best means for discovering truth.’”
Ramifications for WPATH
WPATH has presented cogent arguments here, but it remains to be seen whether the court will dismiss the case. Regardless, the transgender group may have significantly weakened its credibility.
Its argument may help it defeat the FTC lawsuit. Yet, in making that argument, the organization has weakened one of its most powerful rhetorical claims: that its Standards of Care represent an unquestionable scientific consensus.
