The Meaning of Fox Varian's $2 Million Win
Peter Jenkins on the significance of the Varian verdict for court cases in the US and the UK
The first successful case of medical negligence has been decided in a US court. Watery legal metaphors abound. There is talk of dams breaking, of a tsunami of similar cases waiting in the wings, of opening the floodgates, and so on. Certainly, this is a significant development in terms of legal redress for so-called ‘gender affirming care’. It has been a long time in the making.
The case was brought and won by Fox Varian, now aged 22. She has successfully sued both her therapist and the medical clinician who performed a double mastectomy on her at the age of 16, when she was considered a ‘mature minor’ in US legal terms. The case was heard by Judge Robert S. Ondrovic at the Westchester County Supreme Court in New York State. The defendants were Kenneth Einhorn, PhD, a clinical psychologist, and Simon Chin, the surgeon who performed the mastectomy. The case was brought on the linked grounds of medical malpractice and failure to obtain informed consent in accordance with the requisite standard. Varian was awarded “$2 million in damages, with $1.6 million for past and future pain and suffering, and another $400,000 for future medical expenses.”
Sealed Court Records
While the case carries significance as the first of a possible cohort of similar cases in the US and UK for professional negligence, its full import is muted by the lack of actual detail about the case brought by Fox Varian as the plaintiff and the response of the respective defendants. “During the proceedings, the court took the unusual step of sealing the case files and trial transcripts. This was reportedly done to protect the privacy of the parties involved, though some details were reported by independent journalists who attended the open portions of the trial.” Court documents may be sealed for a number of reasons, such as to maintain national security or to protect the interests of third parties. In this case, the documents were sealed to protect the confidentiality of the parties to the case, particularly to shield the interests of Fox Darian as then a minor.
Failings of Informed Consent
While sealing court papers protects plaintiff privacy, it leaves many questions unanswered about the precise nature of the claimed professional negligence and about the specific failures in the process of obtaining informed consent. Concerns have previously been raised about the nature of informed consent within gender identity-informed care. Medicalised gender care can include surgery for under 18’s if the latter are assessed as being ‘mature minors’, carrying additional rights to adolescent patient autonomy. Levine et al. have rightly questioned the process whereby children and their parents may be provided with “incomplete and inaccurate information”, which is inadequate for achieving proper informed consent by children and their parents.
In the judicial review of the Tavistock Gender Identity Development Service's practice, in the case of the detransitioner Keira Bell, a UK court ruled that children under 16 lacked legal capacity to consent to medical interventions and that children aged 16-17 would require a court order for this purpose. This was overruled on appeal, returning the decision about judging adolescent capacity to the assessment of medical practitioners, as had applied prior to the Keira Bell judicial review.
Risk of Suicide Amongst Trans Teenagers?
So, the essential detail of the case is missing. However, even the sparse information emerging from press reports gives some interesting pointers. “Varian’s mother, Claire Deacon, testified that she was against the surgery, but consented out of fear her daughter would commit suicide if she didn’t get it. Einhorn increased that worry, she told the court. Defense attorneys countered that Varian had made similar threats on multiple occasions, and that ideas of self-harm didn’t come from her therapist.”
However, back in 2019-2020, the transgender lobby’s claim that medical transition protected against teenage suicide probably held a lot more sway than it does today. Current research does not support this claim. Even Chase Strangio, the lead attorney for the American Civil Liberties Union, seemed ultra-keen to steer away from this rather discredited line of argument when pleading the legal case for trans rights in the 2024 Skrmetti case. Similarly, experienced therapists will be aware of the crucial distinction between teenage suicidal thoughts, suicide threats, and actual self-harm, all of which can be fairly common, while the risk of a teenager actually completing suicide, which is fortunately much lower.
Therapists have an obligation not to take adolescent desires for medical transition at face value, but to carefully help identify the various pressures contributing to them. The Varian case also raises important issues about the pressure placed on parents to provide overall consent to medical transition, particularly if they are given incomplete and potentially misleading information about the increased risk of suicide among teenagers who are refused access to medical intervention.
While the Fox Varian case is clearly an important and welcome legal development with implications for future detransitioner cases in the US and UK, some essential details about the case and the arguments presented by both parties are still lacking. Overall, against a backdrop of steeply rising professional indemnity costs for therapists and agencies alike, as well as a general shift in the legal landscape in favour of detransitioners bringing similar cases, we can perhaps expect even more defensive prevarication from professional therapy associations in the future.
For further reference see:
Sealed Court Papers: Document List
Peter Jenkins is a counsellor, supervisor, trainer and researcher in the UK. He has published a number of books on legal aspects of therapy, including Professional Practice in Counselling and Psychotherapy: Ethics and the Law (Sage, 2017).
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A point that needs to be repeated as many times as possible is that patients' statements that they will commit suicide has nothing to do with whether they should be operated upon, or given drugs that aren't designed for the treatment of suicidality. We do have a range of appropriate evidence-based strategies to offer people who are deemed to be at elevated risk of suiciding, and they do not include surgeries and hormones. The motives for suicide are usually emotional, including depression and patients' conviction that their life situation is both intolerable and "hopeless." The treatments of choice include psychotherapy, psychiatric drugs, and psychosocial interventions that improve practical aspects of the patients' life situation.
Question: Is this ruling about whether these practitioners executed a bad intervention according to current "best practice" standards, or a challenge to the bad practice itself?