HHS ignored experts in issuing guidelines promoting gender transitions for minors

HHS ignored experts in issuing guidelines promoting gender transitions for minors
FDA (Image: Wikimedia)

A Freedom of Information lawsuit has just revealed that HHS promoted gender transitions for minors without consulting with key experts at the FDA. The FDA has warned that the puberty blockers used by minors in gender transitions can have dire side effects, such as brain swelling and permanent vision loss.

In March 2022, the Department of Health and Human Services issued a document promoting gender transitions for young people, including “puberty blockers” “during puberty”, “hormone therapy” from “early adolescence onward”, and “gender-affirming surgery” (such as removal of breasts and testicles) either in “adulthood or case-by-case in adolescence.”

Strangely, this HHS guidance document, titled “Gender Affirming Care in Young People,” was issued not by HHS agencies that have expertise in transgender issues (such as the Food and Drug Administration, which regulates drugs such as puberty blockers), but rather by the Office of Population Affairs, which deals with family planning, teenage pregnancy, and adoption.

In Newsweek, former FDA official David Gortler expressed concern about this, and asked why the Office of Population Affairs was “even commenting on gender transition treatments….As a former senior executive FDA drug safety official, I have to wonder why my 20,000-plus former colleagues at the FDA are not speaking out after being circumvented on transgender clinical pharmacology recommendations by an obscure, obviously unqualified HHS office.”

The FDA recently added a warning to the puberty blockers used by transgender children undergoing gender transitions. The warning was added after the FDA identified “a serious potential side effect” that can “cause a dangerous surge of spinal fluid pressure in the brain,” as well as “headaches, nausea, double vision, and even permanent vision loss.”

As Gortler noted in Newsweek, the HHS “gender affirming care”

document claims to outline an established standard of care on how to proceed with social, pharmacological and surgical “affirmation” of children and adolescents who identify as transgender. When announcing the new document, Assistant Secretary for Health Rachel Levine went so far as to state “there is no argument among medical professionals—pediatricians, pediatric endocrinologists, adolescent medicine physicians, adolescent psychiatrists, psychologists, etc.—about the value and the importance of gender-affirming care.”

Levine’s extreme statement was rightly rebuked by physicians and members of Congress for not being appropriately based in evidence.

At first glance, the HHS/OPA document gives the impression that anyone and everyone should just start writing prescriptions and scheduling surgical procedures upon request. Observant scientists and clinicians will notice the document is most remarkable for what it doesn’t say.

As a pharmacologist, pharmacist and research scientist who has dedicated his life to drug safety, drug development and evidence-based clinical and non-clinical science and medicine, I have some important questions—starting with who the authors of this document are, and what academic credentials they have.

Puberty blockers and cross-sex hormones for gender transition are all off-label, non-FDA-approved use. I’d be curious what published studies were the basis for the HHS/OPA recommendations regarding the use of those drugs. Were existing FDA- and non-FDA drug safety databases reviewed to assess risk to gender-appropriate and gender-incongruent application and administration? More importantly, was anyone from the FDA even consulted, and if not, why not?

The document fails to mention the potential short- or long-term risks of its pharmacological and non-pharmacological recommendations.

Gortler was right. The experts at the FDA were apparently not even consulted by HHS’s leadership or the Office of Population Affairs before HHS issued this document promoting gender transitions for minors.

We now know this because after I read Gortler’s article in Newsweek, I submitted requests under the Freedom of Information Act (FOIA) for communications between FDA and HHS about the drafting or content of the Gender-Affirming Care and Young People” document. On August 9, 2022, the FDA issued its response, stating that “A search of the Covered FDA offices did not locate responsive records; therefore, we have no documents to provide you.” FDA would have such records, if the Office of Population Affairs or HHS had sent drafts of the “Gender-Affirming Care and Young People” document to experts at the FDA for their review. But according to the letter sent to me by Meredith J. Schlaifer of FDA, no such records exist.

My May 25 FOIA request to FDA was submitted on behalf of the Bader Family Foundation and the Liberty Unyielding blog. As FDA notes, I requested

1. All communications between March 1, 2022, and the date you process this request, with covered FDA offices about “Gender-Affirming Care and Young People,” a guidance document issued by the Office of Population Affairs in the Department of Health and Human Services dated March 2022.
2. All communications between February 1, 2022, and March 31, 2022, with covered FDA offices about the drafting or content of “
Gender-Affirming Care and Young People.”

I submitted a similar (but not identical) FOIA request to the HHS on behalf of the Foundation and my blog. The agencies’ responses to my FOIA requests were due on June 24, 2022, twenty working days after I submitted the requests.

When FDA and HHS failed to comply with that legal deadline, the Bader Family Foundation sued them on July 19, 2022, filing a complaint in the U.S. District Court for the District of Columbia, where the lawsuit remains pending. The lawsuit forced the FDA to respond to my FOIA request.

The government’s lawyers have yet to file their answer to the court complaint, which is due on August 21, 2022. But three weeks after I filed the lawsuit, FDA emailed me its response to my FOIA request, saying it had no records responsive to my request. HHS still has not yet responded to my FOIA request. I expect a response soon.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com


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