Boom: Jury Awards $2 Million In First Detransitioner Trial

Detransitioners have struggled to bring malpractice cases to trial. By the time regret emerges, it often comes after the statute of limitations has passed for civil actions. In White Plains, New York, a 22-year-old victim of medical maiming managed to get her case in front of a jury in time, in what appears to be the first detransitioner lawsuit to proceed to a verdict and judgment.

Fox Varian got a $2 million judgment, a story that nearly no one except Benjamin Ryan and Stacy Robinson at the Epoch Times covered in any depth:

Ryan's tweet does not go into further details, although he promises more soon at his Substack. The Epoch Times has more on the verdict and judgment, in which the jury seemed to parse the claim and their conclusion carefully around the specifics of Varian's case rather than a broader condemnation of pediatric sex-change therapies. The jury also reduced the award significantly from Varian's demand, Epoch Times reporter Stacy Robinson reports:

Robinson also notes that Varian's suit did not ask the jury to determine the validity of pediatric sex-change therapies and surgeries. Their suit presented the narrower question as to the standard of care at the time. That may have led to the lower award, as may have Varian's initial professions of satisfaction with the surgery – while still a minor. The verdict may have rested on evidence that Varian had told providers at the Albany Pride Center that she had "felt pressure" to decide on a gender identity when her dysphoria had only left her confused. Her doctors never bothered to consult with that center, apparently, and Varian's attorneys painted them as just going along with whatever the clients demanded rather than offer a competent and complete clinical analysis before committing to irreversible surgery (mastectomies, in this case).

That may not provide the most robust results in the effort to shut down the pediatric sex-change industry, Aaron Walker writes in an excellent explainer at our sister site Twitchy:

So, there are two flies in this ointment. First off, the verdict is less than what her lawyer asked for and it doesn’t really feel like the jury was throwing the book at the defendants like we think they deserve. Two million dollars is nothing to sneeze at, but after we talked about Seattle getting hit with about $25 million yesterday, this seems low for our taste.
But here’s the more basic problem. The courts should be finding that this kind of surgery is inherently illegal. Naturally parents should be able to consent to even sterilizing surgery when it is based on medical (not psychological) necessity. So, for instance, if a thirteen-year-old girl has ovarian cancer and sterilizing surgery is the best way to remove the cancer… it would be heartbreaking, but her parents should be able to consent to that. But essentially cosmetic surgery because she subjectively believes she is a boy should not be allowed. ...
But for some reason, this wasn’t the basis of the decision. We don’t know if Ms. Varian asked for the court to rule on that topic and what, if anything, the court might have said on the subject. But we would prefer for the court to view gender transition for minors to be inherently illegal and that any consent by the parents to be seen as ineffective.
Instead, the case proceeded on the premise that sometimes transitions are justified, but the doctors screwed it up in this case, mistakenly identifying her as transgender and in need of so-called ‘gender affirming’ surgery. It still took $2 million out of their hide, but that only sends the message of ‘be more careful when you transition children’ rather than ‘don’t transition children at all, ya freaks!’
So, yes, this is good news, but not the best news possible on this front.

I agree with Aaron and share his disappointment, but there was no better option in this particular setting. The reason that Varian didn't ask for that kind of a ruling is likely because it would have been more difficult to prove the larger question by a preponderance of evidence, and it would have vastly expanded the defense resources against Varian. She took the shot that would work the best by keeping it focused on the specific malpractice in her case. To aim higher would likely require some sort of class-action case, where plaintiffs could combine resources to make the case Aaron envisions, and the targets would almost certainly be the malpractice insurers rather than specific providers.

That kind of case should be brought, but it might require legislative action to suspend or extend the statute of limitations on such claims. Legislatures have done this in the past when it comes to sexual abuse claims, prompted by both the scandals in the Catholic Church as well as the #MeToo movement and abuse scandals in education that have come to light since then. That may prove difficult, as the majority of these pediatric sex-change centers are in blue states that are far more likely to provide "sanctuary" to such providers than to open them up to long-term malpractice liabilities.

Benjamin Ryan covered such a case in November, in which a detransitioner's lawsuit was denied because seven years had passed since her surgery:

A California judge last week dismissed the lawsuit filed by a former patient of leading pediatric gender medicine specialist Dr. Johanna Olson-Kennedy and her colleagues. Attorneys for the plaintiff, a young woman who received gender-transition treatment from the care team as an adolescent and later detransitioned, could not get around the state’s strict three-year statute of limitations for such medical-malpractice lawsuits.
Kaya Clementine Breen, 21, claimed she received medically negligent treatment from her former care team, including a surgeon who performed a double mastectomy on her when she was 14. Her attorneys intend to appeal the dismissal, which Judge Joseph Lipner of the Superior Court for the State of California in Los Angeles issued on Oct. 29.

Don't expect California to extend the limitation in order to allow lawsuits like this to proceed. Congress could act to create a federal liability for pediatric sex-change therapies, but it would not apply ex post facto.

Fox Varian bravely fought the medical and insurance establishments for justice for herself, and won. That kind of accountability matters. It will incentivize the maimed children of this generation to push for justice for themselves, and that will have an impact on decisions by insurers to keep protecting these barbaric practices. It may not be the victory we want at the moment, but it will lead to more, and it could change the world back to reason.

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