The Forum: Defense for detransitioners

Josh Payne is a founding partner of Campbell Miller Payne, the first law firm dedicated to representing detransitioners—people who underwent medical procedures to fit their perceived gender identity but now regret it. The firm’s clients include Prisha Mosley, a 26-year-old woman who developed a masculine voice due to years on testosterone and lost her breasts in a double mastectomy. To date, no detransitioner has successfully sued his or her doctors over wrongful transgender treatments. Mosley could be the first—in May, a judge allowed her lawsuit to proceed to trial. Here are edited excerpts of my interview with Payne.

A lot of people need justice—the poor, immigrants, the wrongly convicted. Why did you and your law partners pick detransitioners?

There are already attorneys directed to the other societal problems that you mentioned. They’re working hard; they’ve been there for decades. Detransitioners didn’t really have anybody. We also represent families of individuals who have been injured. We represent two families in wrongful death lawsuits whose children—two young men in their early 20s—committed suicide after being placed on estrogen.

What are the stakes for your clients?

You’re talking about individuals who have been deeply harmed. They’ve lost body parts; their body has not been allowed to develop naturally. They have chronic pain. Their bodily frame is often abnormal because of growth irregularity, which is affected by cross-sex hormone therapy. One of our clients calls that “wrong-sex hormone therapy.” But equally important, the psychological and emotional impacts: Our clients have to cope with what was done to them for the rest of their lives. The proponents of so-called gender-­affirming care—a horrible misnomer—so far have been very hesitant to engage in robust scientific discussion of the evidence, or really, the lack of evidence.

So what’s a better term than ­“gender-affirming care”?

I think the least-loaded term would be “medical interventions in an effort to make someone have secondary sex characteristics of the opposite sex.” So removing a woman’s breasts so that her chest looks more like what people would describe as a male chest. Or giving a teenage girl more testosterone so that her body doesn’t fully develop into what looks like a typically female body. And maybe let her grow some facial hair so that she will need to shave her face.

Hormone therapy can change ­secondary sex characteristics, but not someone’s actual genetic sex.

Yet these vulnerable teenagers are being told that they can change their sex. That falsehood is very damaging. It’s making a promise that cannot be fulfilled, and it’s giving them an illusory life raft. These people are so desperate, they are grabbing on to the medical intervention like they’re reaching and grasping for a life raft. But because it’s illusory, they’re drowning.

Tell us about the detransitioners. Were they all grabbing on to a life raft, desperately looking for a change in their life?

They’re people who have gone through the medical intervention process, whether puberty blockers or, the next step, cross-sex hormones—testosterone for women and girls, estrogen for men and boys—and then ultimately surgeries: A double mastectomy to remove a young woman’s healthy breasts, then maybe a subsequent surgery that involves removing her uterus and ovaries and making her surgically infertile. This is what we’re seeing happening in the early 20s. A very young woman who has barely just become a woman is all of a sudden being robbed of all those years of normal womanhood and the opportunity to become a mother naturally.

And later, some of these patients change their minds?

It’s not, “I was a free agent going into this, and now I’ve simply changed my mind.” The story is: I was highly vulnerable. I may have had a sexual assault in my past. I may have autism. I may have obsessive-compulsive disorder, borderline personality disorder. It’s not just gender dysphoria. It’s often a host of comorbidities that may or may not be properly treated at the time. They will say: “My distress was through the roof. When I reached out to counselors and medical providers to help me, this is what they told me was the answer. And I believed them. In hindsight, I now realize I was told something that was incorrect.” In the eyes of the law, that is medical malpractice. It can also constitute fraud—a situation being misrepresented for the purpose of luring a patient in to make money.

You’ve filed about a dozen cases coast to coast. Why are some of your clients going public with their ­stories?

Many of them are mission-minded to help prevent what happened to them from happening to anyone else.

Tell us about Prisha Mosley and her case.

Prisha’s case is sadly typical. She had a litany of issues—history of sexual assault and very serious eating disorder, other mental health problems, OCD, borderline personality disorder. She was actually hospitalized more than once for mental health reasons. As a 16-year-old, she first met with a pediatrician in North Carolina. As she turned 17, she was placed on testosterone. She met with a plastic surgeon. Then, after turning 18, she had a double mastectomy that was described by the plastic surgeon as a breast reduction surgery. Prisha alleges she was misled into these procedures by two counselors, the pediatrician, and the plastic surgeon.

What’s the strategy for arguing a detransitioner’s case?

Personal injury cases are as old as the hills, so the basic playbook is very established: Someone is harmed. They blame the healthcare provider. The patient then has to prove in court that the doctor or counselor failed to meet what’s called the standard of care, or misled them in some way.

What’s your biggest challenge?

From a legal standpoint, it’s the statute of limitations. Think back to when this patient first comes to the doctor or the counselor and says, “I’m in great distress, I have discomfort with my gender. What do I do?” They’re given the life raft. It’s only years later that they’re able to realize, “Oh, my goodness, that was not the answer. That absolutely did not give me the complete healing and mental health fix that I was promised.”

What is your own belief about sex and gender? And what anchors you in that belief?

I believe that we’re created in the image of God. And Genesis talks about creating them male and female. So I believe that faith and science marry perfectly.