The Strange Case of the Disappearing ‘Standards of Care’

Peter Jenkins on the retreat of WPATH in the face of Detransitioners medical malpractice claims

In Alice in Wonderland, Alice often feels lost and unsure of where to go, so she asks for directions from an ambiguous and unsettling figure, a Cheshire Cat. The response from the Cat is quite appeasing, but is still unclear and non-committal: “That depends a good deal on where you want to get to…”. The whole process of finding your true path in life is largely driven by your own desires, it seems. And so some detransitioners will experience much the same thing with WPATH, the World Professional Association for Transgender Health. Cloaked in the apparent solidity offered by its imposing Standards of Care, many are persuaded that its authority on all forms of transition, especially medical transition, is beyond question. But, as we follow the first legal cases being brought to court by detransitioners, we find that WPATH and its much-vaunted Standards of Care are about as insubstantial as the appearing and then very slowly disappearing Cheshire Cat. But, as Alice warns us, even a Cheshire Cat “has very long claws and a great many teeth...”. So, perhaps we (and Alice) need to take care here?

Fox Varian’s Successful Detrans Malpractice Case

We start with the breakthrough case brought by Fox Varian against her therapist, Dr Einhorn, and her plastic surgeon, Dr Chin, which resulted in $2 million compensation awarded by a New York court in February 2026 (Jenkins, 2026). This is the first successful US case brought and won by a detransitioner to date in the US. Although the court records were sealed by the judge to protect plaintiff privacy, the case has been reported in detail by journalist Ben Ryan, who has made available key information, such as expert witness reports (Ryan, 2026a). A further 24 other US cases for medical malpractice are now currently pending, including the case brough by Soren Aldaco (Ryan, 2026b). She is seeking to overturn current Texas law, which restricts detrans cases to an unfeasibly narrow time window of two years for bringing their malpractice case to court (Jenkins, 2026). This stands in sharp and unfavourable contrast with the massively extended window of time for bringing historic child abuse cases to court, which now applies in many US jurisdictions.

However, the legal damage limitation process is now already well under way. This is attempting to seal off the Fox Varian case as being somehow of limited wider relevance, based on its exceptional features, and therefore not in any way a precedent for other similar cases coming down the pipeline. Yes, Fox Varian won her case for medical malpractice, in undergoing a double mastectomy at age 16 as a ‘mature minor’. But, the argument goes, this does not mean the writing is on the wall for gender affirming medical care as a whole.

Duty of Care, Standard of Care

To win such a case, the patient as plaintiff needs to establish that the professionals involved owed her a duty of care, that there was a breach of this duty of care, and crucially, that this breach of the duty of care directly caused the patient physical and/or psychological harm. This might seem straightforward, but such cases are notoriously hard to win in a civil court. In specialist medical cases, the decision comes down to the balance of evidence presented in establishing the existence of a breach of duty of care and the causation of harm. The court relies heavily on the evidence of expert witnesses, in deciding whether clinicians failed in their duty of care. So, essentially, this is a rock solid system of peer defence, where often highly technical material needs to be translated into everyday terms readily understandable by a judge and jury.

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So, what are the exceptional features of Fox Varian’s case? Unusually, the case involved both her psychologist and surgeon as defendants. In other cases, such as that brought by Soren Aldaco, the patient has needed to bring a series of separate legal cases against maybe four or five different professionals involved in their medical transition. This can clearly involve much greater time and expense for plaintiffs. In the case of Fox Varian, the lawsuit has brought the referring therapist decisively into the frame. Under the US system, patients seeking gender affirming medical interventions generally require a referral letter from a therapist. (In the UK, therapists working outside of a specialist gender clinic would be unlikely to be involved in this procedure.) This is a key development, in that Fox Varian confirms that therapist and surgeon share liability for alleged medical malpractice. This is clear warning shot for therapists working in this field, both in the US and UK.

Setting an Agreed Standard of Care

One of the defining exceptional features of Fox Varian concerned an apparent lack of agreement between therapist and surgeon over the correct diagnostic label required to authorise a double mastectomy. The therapist’s referral letter specifies F45.22 ‘Body dysmorphic disorder’ from DSM-5, namely an obsessive preoccupation with body features. The surgeon apparently deduced instead that ‘gender dysphoria’ applied, i.e. 302.6 in DSM-5, namely a marked incongruence between the patient’s experienced/expressed gender and their assigned gender (APA, 2025). These diagnostic differences were allegedly then not properly explored or resolved through liaison between the two professionals involved (Ryan, 2026a). The therapist’s referral letter was also found by the jury to breach the duty of care, in consisting of a bare three paragraphs, while one expert commentator has suggested that such a letter might easily run to thirty pages of detailed assessment of the patient’s condition (Ryan, 2026c).

So how does a judge (and jury, if involved) decide on what is ‘good enough’ or even ‘bad enough’ practice, whether carried out by a therapist, or by a plastic surgeon? This where the concept of the standard of care comes in. The standard of care is the quality of treatment which is agreed as being appropriate, based on expert witness advice, with reference to existing professional guidelines and to previous case law. In the case of Fox Varian, given that her surgery was carried out in 2019, then it might well be assumed that the relevant standard to apply would be the Standards of Care (SOC 7) (WPATH, 2012), which were current at that time, though later replaced by SOC 8 in 2022 (Coleman et al, 2022). The crucial difference between SOC 7 and SOC 8 was that the former was ultimately based on opinion, whereas SOC 8 claimed to be “using an evidence-based approach” (DHHS, 2025: 156).

WPATH as the Relevant Standard of Care?

This is where the first legal bombshell was dropped. A key expert witness, appearing for Fox Varian as plaintiff, announced that WPATH’s Standards of Care, Version 7,”…is not considered the standard of care”. “The standard of care by which I’m evaluating this case is what a reasonable physician would do under the set of circumstances” (Ryan, 2026b). Given that the expert witness is himself a leading member of WPATH, this seems to be a rather shattering disclosure, to say the least. Only as recently as August 2024, “WPATH was presented in a major court case as “the leading association of medical professionals treating transgender individuals” and that “[t]he Nation’s leading medical and mental health organizations recognize [SOC-8] as reflecting the accepted standard of care for treating gender dysphoria” (DHHS, 2025: 182). WPATH is widely held to be “the de facto authority for defining clinical competency, treatment eligibility criteria, and ethical frameworks across much of U.S. medicine” (DHHS, 2025: 154). “Major U.S. private insurers…explicitly reference SOC-8 to define medical necessity, eligibility criteria, and coverage decisions (2025: 154).

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To muddy the waters even further, a second expert witness, highly critical of the therapist in Fox Varian, explicitly referenced WPATH SOC in advising the court that the therapist’s practice departed from the accepted (WPATH) Standard of Care in Para 19: “Per the standards of care in effect at that time, as dictated by WPATH, prior to an adolescent becoming a candidate for gender reassignment surgery, the patient should undergo fully reversible interventions i.e. use of (GNRH analogs…” (Ryan, 2026a). So, there seems to be some surprising degree of difference here between experts, in terms of their reliance on WPATH. It appears that the WPATH SOC simultaneously both are (and at the same time, are definitely not) the standard of care to apply in the case of gender affirming medicine. Shades of yet another famous puss here, in this case Schrodinger’s cat, which could theoretically both exist and not exist at exactly the same time, in the strange new world of post-quantum physics (Gribbin, 1992).

WPATH and its Standards of Care: Unanswered questions

In a surprising turnaround, it now seems that ‘the Standards of Care’ (v.7 in this particular case) are no longer ‘the standard of care’ in deciding a key legal case. And, if an expert witness decides to abandon the WPATH Standards of Care, what is their own substitute standard of care then to be based on? Is it based on refutable scientific evidence (which can be challenged in court), or is it based on the expert’s own personal opinion? If the WPATH Standards of Care can so easily be abandoned in a court of law, after being proposed and accepted in other court proceedings as the relevant standard of care, then what are the grounds in future court proceedings for later returning to the same old WPATH Standards? Who decides that this choice is appropriate in legal terms? If the WPATH Standards of Care are not actually the standard of care, then what is the point of having them? And if the WPATH Standards of Care are so easily disposed of (‘now you see them, now you don’t’), then what exactly is the point of WPATH?

So many unanswered questions here…

Making Sense of it All

How do we make sense of all of this? Of course, our starting point needs to be that the WPATH Standards of Care are not clinical standards in the usually understood sense of the term. That is, they are not standards, such as the UK NICE guidelines, based on high quality evidence, preferably randomised controlled trials, which are essential for holding clinicians to account in court. The Standards of Care are advisory guidelines only, all too easily jettisoned, as we can see, if they prove to be a tad inconvenient for clinicians to follow in every respect. These Standards do, however, provide a protective screen, behind which shelters the core concept related to supposed gender affirming treatment, which is held to be that of ‘medical necessity’. Without this critical label, there will be no agreed insurance cover, and crucially, no routine transfer of funds to clinicians. After all, however passionate they may claim to be about gender identity, nobody at all does this ‘work’ for free. In the longer term, without the collusive fiction of ‘medical necessity’, which greases the wheels and keeps them turning, there would therefore be no medico-financial industry providing medical transition for a fee.

Lack of an Evidence Base

So, WPATH’s main weakness appears to be its lack of a robust evidence base for carrying out so called gender affirming care. After all, gender identity is simply an unfalsifiable internal belief, an experiential sense of bodily incongruence. In essence, gender affirming medicine is therefore based on the process of providing medical treatment, rapidly escalating from drugs to surgery, to treat an individual’s discrepant belief system.

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To justify its own recommendations, WPATH SOC 8 has so far failed to provide a systematic review of treatments for children, despite arguably having the necessary academic and research means to do this at that time (Coleman et al, 2022: S46; Jenkins, 2023). Systematic reviews commissioned from Johns Hopkins University were allegedly spiked and left unpublished, so left outside the public domain (DHHS, 2025: 170). Dr Hilary Cass, in her landmark policy review, has famously described the evidence base for gender medicine as “remarkably weak” (2024: 13). Even the somewhat muddled discussion over body dysmorphia versus gender dysphoria diagnoses for Fox Varian raises the obvious point that, if psychotherapy is generally accepted (and evidenced) as the obviously appropriate response to the passing rare condition of body dysmorphia, then how much more so in the case of gender incongruence or gender dysphoria. The courts and their expert witnesses need to be much more assertive in challenging the appropriateness of WPATH as the default industry standard of care, or where it is abandoned, the grounds for doing so, and the evidence base for any intended replacement. As for therapists, the issue is no longer whether their referral letter is three paragraphs or thirty pages in length, but whether any psychological criteria at all can justify mandating a double mastectomy for a troubled child.

Current Changes in the Field of Gender Medicine

Even if Fox Varian may hold some exceptional features, it certainly tells us which way the wind is now blowing. The American Society of Plastic Surgeons has just called for a definite pause to surgery on children, citing a lack of evidence (BMJ, 2026). The US professional indemnity insurance industry will surely be the next to signal a slow withdrawal from this contested field, following the lead recently set by their Australian colleagues (MDA National, 2025).

And as for WPATH, the future continues to look somewhat bleak. As a mortally wounded Zeppelin, it may be deflating rather more slowly than some of us would like. But to return to the original theme of Alice in Wonderland, the appearance and then gradual disappearance of its Standards of Care perhaps holds out some measure of real hope to detransitioners considering legal action over their medical and therapeutic care.

So, in the future, perhaps all that will remain of WPATH and its Standards of Care will be its rather knowing grin…

Non-electronic references:

Carroll, L. (1985) Alice’s adventures in Wonderland. In: The complete illustrated works of Lewis Carroll. Chancellor: London.

Gribbin, J. (1992) In search of Schrodinger’s Cat: Quantum physics and reality. Black Swan: London.

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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