I knew it was coming.  A year ago, in one of its first workshops in the new administration, the FTC invited opponents of gender-affirming care to give public testimony.  The workshop, titled “The Dangers of ‘Gender-Affirming’ Care for Minors,” included “doctors, medical ethicists, whistleblowers, detransitioners, and parents of detransitioners” and invited them to “share perspectives grounded in research, expertise, and personal experience.” Not surprisingly, given the workshop’s title, the perspective shared was that such care is harmful and should be prosecuted. Speakers with opposing views of gender-affirming care were not included in the workshop.

Since then, the FTC has announced several enforcement actions involving health claims and youth.  I blogged about one and suggested that it might be setting the stage for the FTC’s real target, the doctors who provide gender-affirming care for the very small number of transgender youth whose families seek such care for them. Now, almost exactly one year following its workshop, the FTC, joined by Alaska, Iowa, Nebraska and Texas, has announced the filing of a lawsuit against the World Professional Association for Transgender Health (WPATH). The FTC’s 100+ page complaint alleges that WPATH “has provided the means for medical providers to make false and unsubstantiated claims to parents in order to sell pediatric medical transition services.”  In other words, the FTC is accusing the organization of recommending procedures such as “breast amputation” and “penis removal” to sustain a “lucrative industry” of pediatric medical transition services and “profit its members.”  

The thrust of its lengthy complaint, charging WPATH with violation of the FTC Act and the states’ own consumer protection statutes, and seeking injunctive relief, restitution, and civil penalties, is that the organization, in issuing recommendations for the ​care of transgender patients based on standards of care that WPATH asserts are based on “established scientific standards, expert consensus, and patient centered values,” misleads doctors and families regarding the risks associated with some treatments. Further, according to the complaint, WPATH, which does not provide direct care to patients, seeks to have more treatments covered by insurance so that its members can benefit financially. 

In January, when served with an investigative demand by the FTC, WPATH filed a lawsuit, alleging that the investigation constituted a “blatant and retaliatory attack on the first amendment rights of WPATH, attempting to silence and punish an organization who has worked to deliver evidence-based guidelines for care for transgender individuals.” A court agreed and blocked the investigation. WPATH’s statement says that it expects the same result here.

This may be the first enforcement action brought by the FTC to challenge clinical medical guidelines themselves under a consumer protection framework. The complaint treats the guidelines and the recommendations of a non-profit organization and the patient care provided by individual physicians for their individual patients essentially as false and unsubstantiated commercial speech causing consumer injury. And it charges WPATH, in establishing guidelines, with “furnishing of the means and instrumentalities by which its members and other clinicians deceive consumers into purchasing pediatric medical transition services.”  While the FTC and the states have always treated health claims by commercial actors causing injury as a high priority enforcement area, particularly if minors are involved, the enforcement action here seems to be of a different order entirely.

What are the implications? Certainly, if the courts are receptive to the FTC’s theories, this may open up a new front for consumer protection enforcement for regulators on all sides of the political spectrum.  Personally, not only does this particular action against WPATH trouble me, but I can’t help but worry that regulators could adopt this approach in other equally problematic contexts, arguing, for example, that abortion or contraceptives cause harm to women and that therefore providers of such treatments are deceiving their patients and violating consumer protection laws.  While false advertising laws protect against more than pocket-book issues and monetary harm, their use to challenge clinical standards and guidelines developed by health experts is novel.  Not only will significant First Amendment issues have to be addressed by the courts but one can’t help but wonder if such actions detract from regulators' “kitchen table” consumer protection work.