Who Will Underwrite the Legal Liability for Puberty Blocker Harms?

Spoiler alert: it'll probably be Canadian taxpayers

NOTE: the voiceover version of this post was generated using OpenAI

Gonadotropin-releasing hormone agonists (GnRHa).

I bet you didn’t think you’d have to face that mouthful this early in the article. GnRH agonists effectively "pause" puberty, giving individuals experiencing gender dysphoria time to explore their gender identity without the added pressure of ongoing physical changes. Their use is strongly recommended by the Canadian Paediatric Society (CPS).

Well buckle up, because things are going to get awkward.

The Cass Review for the National Health Service (NHS England) was finally released a few days ago. The review’s mandate was to provide:

“Recommendations on how to improve NHS gender identity services, and ensure that children and young people who are questioning their gender identity or experiencing gender dysphoria receive a high standard of care, that meets their needs, is safe, holistic and effective.”

Among the report’s findings, it was shown that:

• We don’t yet understand the “effects of puberty suppression on psychological or psychosocial wellbeing, cognitive development, and other health aspects like cardio-metabolic risk or fertility.”

• Puberty blockers may have long term impacts on neurocognitive development, psychosexual development, and bone health.

• Considering how nearly all puberty blocking tracks lead to gender-affirming hormone treatments, the “give-children-more-time-to-think" rationale for blockers made little sense.

The report recommended that medicating children with puberty blockers take place only within research settings and only under strict protocols.

Meanwhile, back in Canada, the CPS released their own position paper. “An affirming approach to caring for transgender and gender-diverse youth” first saw the light of day on June 20, 2023. The document promotes an affirmative approach to caring for transgender and gender-diverse youth. It emphasizes the use of gender-affirming care, early social transition when chosen by the child, and supports the use of puberty blockers and hormone therapy under careful medical supervision. The paper also makes the categorical claim that “hormone blockers do not permanently impact fertility”.

In fact, the value of the studies quoted by the CPS paper has been hotly contested in the academic world on both methodological and clinical grounds. Since I’m manifestly unqualified in these matters, I won’t share my own “scientific” opinion. But being aware of the significant controversies will be important for understanding what comes next.

Seeking comment in response to the Cass Review’s release, the CBC quoted a “family physician in Calgary who treats transgender patients”. The doctor suggested that not prescribing puberty blockers and hormone therapy to gender dysphoric children due top lack of clinical evidence would be like "saying for a pregnant woman, since we lacked randomized clinical trials for the care of people in pregnancy, we're not going to provide care for you.… It's completely unethical."

However, if you’d ask me, I’d say the good doctor is creating a bit of a straw man argument. There’s nothing in the Cass review that demands randomized clinical trials. And his analogy ignores the many (and growing) legitimate concerns about the risks of puberty blockers. Would he treat “people in pregnancy” with unproven drugs that had been strongly associated with deeply harmful, life-changing outcomes? I certainly hope not.

What really worries me though, is how things will play out over the next decade or two. What if the many worries expressed by Dr. Cass and other researchers turn out to be correct? What if thousands of former patients experience harms like permanent infertility, cognitive dysfunction, or cardio-metabolic problems?

Besides the individual tragedies themselves, the legal liabilities will be frightening. And especially now that the Cass review is on the official record, practitioners can’t claim they had no idea there would be problems or that they were relying on the research consensus.

So who’s going to pick up the bill for the malpractice lawsuits once they start hitting the courts?

When a doctor messes up - after, say, showing up for surgery while high as a kite - then he’ll be on the hook to cover damages. But what about when the doctor was faithfully following the policies and standards of his governing college or society?

Assuming a patient can establish a direct causal link between the policy and the harm suffered, then the Canadian Paediatric Society could possibly be held liable for their policies. If, for instance, the CPS failed to adequately review the available evidence, ignored warnings from medical research, or did not update their guidelines in response to new information, this could be viewed as negligence. If the CPS administrators should have been able to predict the potential harm based on available information, then the harm could also be considered foreseeable.

In Canada, where healthcare is primarily funded and regulated by provincial governments, the government could also potentially be held liable for harms caused by healthcare policies, including those influenced or mandated by governmental directives.

In other words, once the class actions get rolling, there will be an awful lot of blame to share, and there’s the real potential that taxpayers could be shouldering a great deal of the cost.