The Federal Trade Commission (FTC) is suing the World Professional Association for Transgender Health (WPATH) in a case that could end most insurance coverage for transition healthcare in most states.
While the agency claims that this lawsuit is about minor’s medical transitions, the fine print shows that the requested restrictions would also apply to adults. By targeting WPATH’s guidelines for trans care, the FTC is undercutting the medical justification for health insurance to cover any form of trans healthcare.
Since WPATH plays a unique role in promoting this care as medically necessary to insurers, barring them from making claims about the effectiveness of this care cuts off the primary means by which trans people can have this care insured.
The lawsuit, filed last month, asserts that WPATH is making misleading statements by promoting transition medicine, and that the FTC is authorized to regulate their speech as it pertains to trans care. The FTC has never regulated a medical organization in this way.
If the FTC gets its way, we could see a future where the only states where one could reliably access trans care are those with medical shield laws.
1: What WPATH Does
The World Professional Association for Transgender Health (WPATH) is the primary association for doctors administering trans healthcare. They are best known for issuing the Standards of Care (SOC-8), the document which governs the medical profession’s consensus on how best to treat trans patients. When trans advocates say that transition medicine is supported by the best medical standards, they are largely referring to this document and organization that made it.
These standards are controversial both among trans people and among transphobes. Trans people widely believe that these standards are too restrictive of the patient’s autonomy, and transphobes have argued for decades that medical transition is too easy to access.
Nonetheless, WPATH’s guidance sets the standard for all doctor-administered trans care in the United States. Currently, this is done through SOC-8, where the organization gathers all relevant advice into a single document, and distributes it to medical practitioners.
1.1: Billing Codes
While WPATH is not the only medical organization to promote transition medicine, they are the primary organization setting the standards by which that care is approved by insurance. This is done through billing codes, which doctors use to tell insurance why a patient needs a given procedure, medicine, etc. With few exceptions, all trans care in the US is coded through ICD-10-CM 64: Gender Identity Disorders. It is only through the use of these codes that most trans patients are able to have their hormones and related surgeries covered.
WPATH is able to increase coverage of these and other forms of trans care because it provides evidence that such care is medically necessary. Quoting from SOC-8, “medical necessity is central to payment, subsidy, and/or reimbursement for health care”. In a country with for-profit healthcare such as the United States, this is especially true. As pointed out by SOC-8 contributor and WPATH member Dr. Daniel Karasic, the question of what forms of care are medically necessary for what age groups is “at the center of all reimbursement for trans care in the US” (as quoted from the lawsuit).
In addition to the Standards of Care, WPATH also publishes guides for insurers on how to comply with the expanded definition of what trans care was medically necessary. These are then referenced in the insurance policies regarding gender affirming care.
The Needle reviewed over a dozen policies from private health insurers providing coverage for transition medicine. Every single one cited WPATH as an authority on the subject, and deferred to their guidance when determining what should be covered.
In a policy document published this month, Aetna says that particular hormones can be covered “if they meet World Professional Association for Transgender Health (WPATH) criteria”. BCBS California says SOC-8 “is used in the formation of some of the guidelines in this policy where applicable.” UnitedHealthcare of California says that “coverage for medically necessary treatment of gender dysphoria is based on the most recent version of WPATH Standards of Care for the Health of Transgender and Gender Diverse People.” There were many similar examples.
The only currently active policies we reviewed which make no mention of WPATH are those which do not cover transition medicine regardless of age. These include those barred from doing so by the Federal Government, such as the FEHB program, or those doing so privately, such as Ambetter Insurance in 19 states.
In our review, deferring to WPATH to determine which healthcare is medically necessary perfectly correlated to whether transition medicine was covered under that policy.
It should be made clear that none of WPATH’s guidance is law. They are influencing insurance companies through professional pressure alone. If their guidance were to be removed, and one were in a state where such care is not legally protected, then “it [would] have the same effect as an outright ban”, according to Lawyer Sheryl Weikal. According to her, “WPATH governs the Standards of Care that insurance reviews under. [If] WPATH goes away, all the insurance coding goes away.”
1.2: When WPATH Doesn’t Promote Coverage
If WPATH guidance were to be removed, and no laws were in place to backstop care access, then “it [would] have the same effect as an outright ban”, according to Lawyer Sheryl Weikal. According to her, “WPATH governs the Standards of Care that insurance reviews under. [If] WPATH goes away, all the insurance coding goes away.”
When WPATH’s recommendations for when trans care could be billed were narrower, less trans people had access to HRT. Before 2011, WPATH recommended the transmedicalist model for adults seeking hormones, giving doctors the final say over whether a patient got hormones or not. Few people who requested it got it. This is because WPATH determined what kinds of care are acceptable, therefore determining what could be billed to insurance, and as a result, what care was financially possible for most people. If you control what care is acceptable, you control what is accessible.
Both WPATH and its right-wing opponents understand the link between billing codes, insurance coverage, and actually getting healthcare. Quoting from the FTC lawsuit,
In the absence of insurance coverage, the market for transition services was severely constrained due to the exorbitant cost of these drugs, surgeries, and other interventions—some of which require a lifetime of care. For example, in 2012, pediatric medical transition providers lamented that without insurance coverage, the “incredibly high cost” of pediatric medical transition means that “[m]any, if not most” children “deemed appropriate candidates” were “unable to obtain the treatment.”
If the insurance coverage goes away, so does access to the underlying care for most patients in the US. Due to how America’s for-profit health insurance increases healthcare costs, having insurance cover that healthcare is often needed to get care in the first place, or to not end up in debt over it. This is as true of HRT as it is for anything else.
While the cost of HRT on the grey market is affordable to most trans people, most do not have access to that market. Therefore, most people are reliant on doctors, no matter the price, and no matter the quality of their care.
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2: The Lawsuit
WPATH is being sued by the Federal Trade Commission (FTC), the agency tasked with protecting consumers from misleading products and services. It is joined by 4 Republican controlled states.
2.1: The Case
As the lawsuit details, their case is that WPATH is making misleading statements by promoting transition medicine, and that the FTC is authorized to regulate their speech as it pertains to trans care. “The FTC, the watchdog that makes sure people are not deceived and that business practices are fair, says that [facilitating] transition is an unfair business practice”, according to Sheryl Weikal.
Since the target of the lawsuit is the language which WPATH uses to promote and regulate the care, the FTC is effectively seeking to regulate the actions of a medical provider by prohibiting certain forms of medicine-related speech. It is notable that it is the FTC that is making this case, rather than agencies with experience addressing medical malpractice such as the Food and Drug Administration. This is highly unusual.
The strange nature of their case is also its greatest weakness. The FTC has little history of litigation against medical organizations. As a result, there is hardly any precedent available to them to make their case. If the FTC were suing most groups while using facts and arguments, they would probably be laughed out of court. They are relying on the judge to accept their claims about the harms of promoting trans medicine, and hoping they ignore the question of their jurisdiction.
“[I]n any other time, I’d be saying they are gonna get laughed out of court. However, this is not any other time in history”, according to Sheryl Weikal. However, the Trump Administration, along with much of the judiciary, have been open to legal arguments that would be considered farcical were they not applied to trans people or organizations associated with us.
This is no doubt why the suit was filed in the Northern District of Texas, a court notorious for being used for judge shopping, and widely regarded as the most right-wing court in the country. It gained this reputation because far-right arguments which are rejected in other jurisdictions are frequently accepted there. This is the same court being used to issue criminal subpoenas to hospitals providing trans care to minors, all of which are outside Texas.
If either side appeals an eventual decision, it will be sent to the Fifth Circuit Court, which is similarly conservative. If either side appeals from there, it could only be taken up by the Supreme Court. There is no scenario in which this case is not tried exclusively by right-wing courts.
2.2: Claiming to Protect the Children
In its messaging to the public, the FTC has consistently argued that this lawsuit is being done to ‘protect children’ from transitioning.
In the FTC’s press release announcing the lawsuit, the word ‘children’ appears 12 times, and the word ‘minor’ is used as a synonym once. Combined, these terms appear in almost every paragraph, and are referenced in every argument against WPATH. To connect the children to their parents, the word ‘parent’ is used 7 times.
The same is true of the lawsuit itself. The words ‘child’ and ‘children’ appear a combined 304 times across the text. The word parent appears 102 times. The word ‘pediatric’ appears 139 times. The phrase ‘puberty blocker’ appears 90 times.
A casual reader of any of this would assume that this is yet another attempt by the Trump Administration to curtail the rights of children. However, this is far from the case.
2.3: Bait and Switch
What this rhetoric of protecting the children hides is that the lawsuit’s substantive sections make no distinction between harm done to children and harm done to adults. In several key sections, the focus on children is removed, meaning that the section applies to trans care regardless of age. As Weikal explains “they are using children as the hook for people who don’t read [the actual lawsuit]”.
On pages 111-113, the plaintiffs list the statements made by WPATH that it believes to be deceptive under the FTC Act. Most of the claims pertain to medical advice for trans children. However, one claim makes no mention of children. In count 1D, the suit says that WPATH is being deceptive by claiming that “Cross-sex hormones improve mental health”. This is one of the statements that the suit seeks to legally prohibit WPATH from repeating.
When detailing claims that the plaintiffs believe to be misleading, on page 107 they claim that “WPATH misrepresents that pediatric medical transition is effective at preventing suicide in children who express dissatisfaction with or report distress about their sex traits.” However, when detailing the specific claims that they object to, no mention of children can be found. The specifics are as follows:
SOC-8 claims that “hormone therapy is considered a lifesaving intervention,” and that medical transition “is associated with a substantial reduction in the risk of suicide attempt[s].”
WPATH asserts in SOC-8 that medical transition treatments reduce “suicidality” and “suicidal ideation.”
WPATH also makes public statements falsely claiming that medical transition is “lifesaving.”
No mention of kids here.
Later on page 107, the suit alleges that “WPATH misrepresents that cross-sex hormones improve mental health”. As an example, it quotes SOC-8 claiming that cross-sex hormones “[have] been shown to improve quality of life and to decrease depression and anxiety.” No mention of kids here.
On pages 108-109, the suit alleges that “WPATH misrepresents SOC-8 to be the result of unbiased, evidence-based expert consensus”. In the supporting evidence, children are only mentioned once, and it is phrased in a way where it is unclear whether children are the subject of the whole sentence, or only of a single clause.
SOC-8 makes “strong recommendations” with respect to cross-sex hormones, puberty blockers, and surgical interventions for children, thereby asserting that “there is a high degree of acceptance among providers” for the treatment.
The rest of the evidence makes no mention of children whatsoever.
WPATH misrepresents that SOC-8 is “consensus-based expert opinion.”
WPATH makes public statements falsely claiming that medical transition is backed by “expert consensus[.]”
WPATH falsely claims that SOC-8 follows WHO and NAM standards on managing conflicts of interest.
WPATH falsely represents that it complied with these standards when it reviewed “[c]onflicts of interests . . . as part of the [SOC-8 committee member] selection process” and concluded that “[n]o conflicts of interest were . . . significant or consequential.”
WPATH falsely claims that SOC-8 used the “Delphi process,” which is a formal method of developing recommendations based on expert consensus.
WPATH falsely claims that SOC-8 followed the “GRADE” system.
As Weikal explains, “this is not about kids; this is about everyone”. Children are neither mentioned or implied to be the subject in most of these sections. Therefore, the scope of enforcement will go far beyond just kids.
Seeing as the full document uses the words ‘child’ and ‘children’ 304 times, uses ‘pediatric’ 139 times, and ‘puberty blocker’ 90 times, every time that children are not the focus of a given section sticks out like a sore thumb. It is notable that in the sections where the FTC details what supposed lies it is taking action over, children are far less likely to be mentioned than in the rest of the document.
It is safe to say that if the plaintiffs intended these statements to be limited to children, they would have used words to that effect. As it stands, the FTC is claiming authority to regulate the promotion of transition medicine to adults, and mentioning kids so as to hide their plans.
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3: If the FTC Gets Its Way
If the FTC gets its way, it will prevent WPATH from publishing guidance promoting the effectiveness and essential nature of transition medicine through their Standards of Care document. WPATH’s SOC-8 is the primary document influencing health insurance to cover this care. Therefore, they could not use that guidance to promote coverage of that care to healthcare insurance companies.
If that happens, insurance companies lose the main medical guidance they have for covering trans care. After all, every supportive policy The Needle reviewed referred to WPATH guidance. Without that, insurers have no incentive to cover such care for their customers.
If the FTC lawsuit is successful, many trans people will lose access to their hormones. The only large exception is for people in those states where such care is legally protected.
3.1: Healthcare Access
In such a scenario, the few remaining options would be to have every trans person pay for hormones out of pocket, get everyone on DIY hormones, or have people migrate to the few cities where informed consent clinics can offer HRT outside of formal medical guidance.
There is also the open question of which doctors would actually prescribe HRT knowing that insurance would not cover it. Since doctors typically defer to medical associations to determine what they will recommend to their patients, seeing the biggest medical association forced to retract their previous advocacy around HRT would give most doctors pause. It would create a chilling effect around doctor-administered care, even when patients can pay out of pocket.
Sheryl Weikal did not mince words when explaining how this would play out in practice. “This has the potential to be an extinction-level event for us”. “If WPATH loses this case, [then] unless you’re independently wealthy, [or] live in a blue state near a large city where they provide informed consent,” then the odds of having local doctor-prescribed HRT in your area are slim.
Explaining how rural regions would be hurt the worst, she said “this could be to the trans community what Dobbs was to reproductive rights. We [would] end up with a patchwork where depending on the state you live in, you either can get gender-affirming healthcare, or it’s essentially just outlawed.”
Building on the comparison with reproductive rights, she detailed how many of the tactics used to provide abortion care to people living in states where abortion is banned would not be applicable to trans healthcare. The simple fact is that abortion is a one-time procedure, whereas access to hormones is an ongoing lifetime commitment, with supplies of hormone supplies typically needing to be replaced every 1-3 months (assuming no stockpiling).
If getting that care means traveling to a city where it can be prescribed, or even traveling across state lines, that will cost a lot of time and money. Not everyone can afford that expense. Using abortion funds as a metric, Weikal noted that they “are being tapped out from people who have to go across state lines for one abortion”. If funding people for a single trip breaks the bank, what would happen when you have an entire population that has to make such journeys every 1-3 months?
3.2: State Protections
Some states have laws or executive orders mandating coverage of transition care. All except one are reliably Blue States. These 18 states (and DC) make up 44% of the US population. In these states, trans care access is a legal right. If SOC-8 is revoked, they would still have the legal right to have this care be covered.
This is in contrast to the majority of the country, containing 56% of the population, where insurance coverage of trans care is a courtesy that can be removed at will.
It should be noted that this would lead to a situation where the medical association most responsible for promoting this care will be unable to do so, but many state laws would still require this coverage regardless. While the law would supersede WPATH in this case, the situation would sound absurd to those unfamiliar with the details. After that, what would happen to state shield laws in the long term is anyone’s guess.
4: Lack of Alarm
Seeing how dire the threat is, it should be noted how few alarm bells this has been ringing. WPATH has barely commented on the lawsuit, and when discussing the issue with the media, they have said nothing of substance.
This is not a sign that they are oblivious to the facts in this article. It reflects that they need to stay silent to make their defense as strong as possible. As the saying goes, ‘everything you say can and will be used against you in a court of law’. If WPATH acknowledges certain key facts, such as their central role in getting insurers to cover transition care, that would help inform the public. However, any such acknowledgements from them makes the Trump Administration’s job easier, since they would no longer have to prove that fact in court, but rather use WPATH’s own words. WPATH is forced to not inform the public in order to protect their court case.
While WPATH has every incentive to keep quiet, the same can’t be said of the wider public. Many people who would be sounding the alarm seem unfazed because they don’t know how serious this threat is. Weikal explained that “Trans people see WPATH getting sued and think “well, they’re gatekeepers so it’s fine”, and cis people see WPATH getting sued and think “it's about children so it’s fine”. The problem is that both of those statements are objectively false. Yes, kids will be most affected, but they will not be the only ones affected.”
A legal scholar The Needle spoke to, Dr. Giovanna Esposito, explained that “this is a more distant threat” which has to be explained in detail to be understood, whereas many instances of open bigotry can be explained in a few seconds. Explaining why this is dangerous took me several work days to write out, researched over nearly a month, whereas I can write a story on some straightforwardly bigoted legislation in an hour. The easier a problem is to explain, the more attention it tends to get.
Conclusion
If there is anything to take away from this, it is that in this instance, WPATH is not our enemy. They are still gatekeepers, but they are also a central line of defense protecting our medicine. They should be defended, since “until we get Medicare for All, we need [WPATH]”, according to Weikal.
As for what you can personally do to protect yourself, we advocate the same things we always have. If you take HRT, you should be stockpiling hormones. Access to medicine might mean the difference between staying put and having to journey across state lines.
Special thanks to attorney Sheryl Weikal for bringing the seriousness of this story to my attention.
