Last week, for the first time, a detransitioner won a malpractice lawsuit — against both her therapist and surgeon. The court awarded her $2 million, which, according to the New York Post, includes “$400,000 for future medical expenses.”

Fox Varian, now 22, identified as non-binary and as a boy when her psychologist, Dr. Kenneth Einhorn, approved a double mastectomy and her surgeon, Dr. Simon Chin, performed it when she was 16. She later detransitioned, returning to identifying as a girl and concluding that the medical interventions had harmed her.

The jury was not asked to judge whether the interventions were safe or effective — nor to weigh in on trans children or transition itself — but only whether the clinicians had departed from the accepted “standard of care” in evaluating and treating a minor.

The complication, of course, is that there really is no established standard of care. The World Professional Association for Transgender Health (WPATH), an advocacy group made up of both activists and healthcare professionals, creates documents called “Standards of Care,” but that doesn’t mean those are the established protocols. Meanwhile, the American Academy of Pediatrics has a policy statement on “gender-affirming care,” but it’s full of factual errors.

Most official documents suggest waiting periods after diagnosis of gender dysphoria, a stable gender identity, and evaluation of the patients’ mental health — which Varian’s doctors didn’t do. Varian reportedly suffered from a slew of mental health conditions, including anorexia, body dysmorphia, and autism, which could all lead someone to believe they should transition, or could be misinterpreted as gender dysphoria.

By now, this is a well-known issue in the youth gender medicine industry, which Dr. Hilary Cass described as “diagnostic overshadowing”. Clinicians seem to be skipping the step of differential diagnosis, trying to ascertain the root cause of a patient’s issues. That is, once gender comes into the conversation, professionals ignore all other possibilities for a minor’s distress, and that distress often worsens with transition.

Indeed, Varian described how the surgery actually made her condition worse. “Shame. I felt shame,” she told the jury, adding: “It’s hard to face that you are disfigured for life.”

The verdict was delivered by an overwhelmingly Democratic jury in Westchester County, just north of New York City, in a state whose constitution forbids discrimination on the basis of gender identity. New York is also a self-described “sanctuary state,” offering legal protections to minors who travel from states where cross-sex hormones and gender surgeries are banned. Another detransitioner in the state, Cristina Hineman, currently has a lawsuit pending.

Other detransitioner suits haven’t been as open-and-shut as critics of gender-affirming care expected. Some have petered out along the way, often because they’re filed after the statute of limitations has ended. Those statutes differ by state, but are generally between one and three years after treatment. But the problem is that it can take years for someone to detransition, to realise he or she has been medically harmed or has been the victim of misdiagnosis and thus received the wrong treatment.

For those who have realised in time, some have seen their suits thrown out for technical reasons, while others are still awaiting their day in court. Some have quietly settled with their therapists and doctors. There are enough plaintiffs now that there’s an entire Texas-based law firm dedicated to them.

One possible reason the doctors didn’t settle was that they assumed they’d be safe in a blue state, where these practices are protected and where the state attorney general, Letitia James, has sued the Trump administration for “attacking access to gender-affirming healthcare for transgender and nonbinary youth.” These doctors and psychologists are clearly not as indemnifiable as they thought, and it bodes well for detransitioners in blue and red states alike.

Ultimately, the case punctures the assumption that political climate alone can shield clinicians from scrutiny. Even in jurisdictions that loudly advertise their commitment to gender-affirming care, juries remain willing to interrogate medical decision-making when harm is credibly alleged. As detransitioner cases slowly accumulate, the legal risk for providers is no longer confined to hostile red states or culture-war courts. This shows that ideological alignment offers no permanent indemnity; only medicine does.

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Lisa Selin Davis is the author of Tomboy. She writes at Broadview on Substack.

LisaSelinDavis

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