New York jury finds psychologist and surgeon didn't follow best practices in gender-affirming care case

For the first time, a jury has ruled that a medical professionals who approved and performed gender-affirming surgery on a minor committed medical malpractice.

The verdict came in a suit filed by Fox Varian, now 22, of Yorktown Heights, New York. At age 16, while identifying as a transgender male, Varian underwent a double mastectomy. Varian now regrets the surgery and identifies as female.

Related: What is gender-affirming care, who uses it, and do they regret it?

She filed suit in 2023, saying her health care providers, psychologist Kenneth Einhorn and surgeon Simon Chin, had rushed her into the surgery, had not addressed her mental health issues, and had not obtained informed consent, according to several media outlets.

A jury in Westchester County Supreme Court (in New York state, “Supreme Court” refers to a trial court, not the state's highest court) ruled Friday that the providers should pay her $2 million in damages. Of that, $1.6 million is for past and future pain and suffering and $400,000 for future medical expenses.

Transition regret is rare. The New York Times cited studies that put it at 5 percent to 10 percent among minors. However, a 2024 report in The American Journal of Surgery, looking at 55 studies, put regret of gender-affirming surgeries at 1 percent overall, both for minors and adults. That was far lower than regret of having various types of elective plastic surgery, being tattooed, or having children.

Related: Detransition is rare, but it’s driving anti-trans policy anyway

Adam Deutsch, Varian’s lawyer, said the case was about malpractice, not gender-affirming care. “This was never a debate over the legitimacy of gender-affirming care,” he said, as quoted by the Times. “It was about whether medical professionals met the standards that covered their own profession.”

Dr. Loren Schechter, president-elect of the World Professional Association for Transgender Health, agreed. Testifying in court on Varian’s behalf, said the approval of her surgery was based on “assumption and inference,” which was not sufficiently rigorous to justify it.

After the verdict, WPATH released a statement saying, “This case was a medical malpractice case, not a referendum on gender-affirming care. When care is delivered ethically and responsibly within these guidelines, the integrity of the field is strengthened.”

The guidelines include informing patients about potential risks, making sure they are mature enough to consent, and being certain their experience of gender dysphoria is not short-lived. For minors, gender-affirming care usually includes puberty blockers and other hormone treatments. Genital surgery is not recommended for minors, but some, like Varian, undergo top surgery. However, among teens, cosmetic breast implants for cisgender girls are more common than top surgery related to gender transition.

Deutsch said Einhorn and Chin “just didn’t have the experience to deal with someone questioning their gender identity,” according to the Times. “At the bottom of all of this was a lack of collaboration between the two of them, and lack of communication to follow through.”

For instance, Einhorn, who had no formal training in caring for transgender clients, suggested Varian seek counseling from an LGBTQ+ organization. But he didn’t follow through with the group to find out she had told the therapist there she was unsure of her gender identity, court documents show. Also, in referring her to Chin for surgery, he said her diagnosis was body dysmorphia — an obsession with perceived imperfections — not gender dysmorphia, “an error that proved pivotal in the jury’s decision,” the Times reports. Einhorn said he used the designation because of insurance billing issues.

Einhorn said he recommended hormone treatment for Varian, but she insisted on top surgery. Varian’s mother, Claire Deacon, said Einhorn told her Varian might end her life if she didn’t undergo the surgery. Einhorn denied saying this.

The Times sought comment from Einhorn and Chin, but they didn’t respond, and their lawyers declined comment.

Gender-affirming care for minors has been under attack from conservative politicians for several years. Twenty-seven states ban all or some such care for minors, and the U.S. Supreme Court recently upheld Tennessee’s law restricting the treatment. A year ago, Donald Trump signed an executive order banning federal funding for any institution that provides the treatment to people under 19. He has also ordered the National Institutes of Health to study transition regret.