OPS Spotlight - Looking at gender affirming care through the prism of justice

By Beryl Koener, member of the OPS Board, doctor of medicine, child psychiatrist and doctor of neuropsychopharmacology

Regarder les soins d’affirmation de genre à travers le prisme de la justice

Jilles Smids

Pages 84-87 - The American Journal of Bioethics - Volume 25, 2025

Published online : 6 June 2025

https://www.tandfonline.com/doi/full/10.1080/15265161.2025.2497997

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Context

This commentary aims to respond to the arguments put forward by Kirby in his recent article, in which he invokes ethical principles (autonomy, beneficence, justice, non-maleficence) to justify the application of gender-affirming care. In this commentary, Dr. Jilles Smids, a philosopher and ethicist, analyzes the ethical principle of justice in light of evidence-based medicine, thus correcting the unsubstantiated claims made in Kirby’s paper [1].

Jilles Smids identifies two problems in Kirby’s application of the ethical principle of justice to gender-affirming care:

• For patients to be entitled to healthcare under the principle of justice, such care must be based on evidence—that is, on evidence-based medicine. However, the evidence supporting gender-affirming care in minors is highly uncertain.

• The arguments Kirby uses to defend the routine application of gender-affirming care under the banner of justice are not valid.

Content

A. Definition of the Principle of Justice in Healthcare:

Justice in healthcare means adequately meeting real health needs with appropriate medical care. Theories of justice in healthcare generally start from the assumption that healthcare improves health.

→ Therefore, societies have no obligation, in the name of justice, to publicly fund gender-affirming medical care when there is insufficient evidence that such care improves the overall health and well-being of youth with gender dysphoria.

→ On the contrary, justice in healthcare implies a duty to protect these youth from medical treatments that, all things considered, are likely to cause harm.

B. Kirby attempts to demonstrate that gender-affirming care, in terms of risk/benefit, improves the well-being of youth. Instead of relying on the expertise of those who have conducted numerous systematic reviews of the evidence, he offers his own brief narrative analysis.

→ Had Kirby drawn on existing systematic reviews—which include the studies he cites but also highlight their limitations—his overall conclusion would have been very different.

Critical Analysis of the Arguments Kirby Uses to Justify the Principle of Justice

• Kirby claims that opponents of the gender-affirming care model (GAC) violate the ethical principle of justice by applying higher standards of evidence to GAC than to other areas of pediatric care. He accuses them of deliberately promoting misinformation or disinformation about the kinds of research that can and should inform gender-affirming care for youth.

→ Kirby specifically targets Hillary Cass, saying that—like other opponents—she only supports randomized controlled trials (RCTs).

• Cass does not claim that only RCTs can provide high-quality evidence.

• Cass emphasizes the importance of long-term follow-up and has clearly expressed disappointment that UK adult gender clinics (NHS) refused to cooperate with a large retrospective study on “9,000 young people who had received [gender-related services]” that was meant to be part of her report.

• Therefore, contrary to Kirby’s claims, those concerned with the current state of evidence do not assert that only RCTs can justify GAC. Numerous alternative research approaches have been proposed:

  
  

  • More well-designed long-term prospective cohort studies with larger samples (cf. Cheung et al. 2025; Clayton 2025; Gorin, Smids & Lantos 2025) [2], using extensive existing patient records, such as those from the pioneering Amsterdam clinic, for retrospective research (Abbruzzese, Levine & Mason 2023) [3].

  • Considering new research models, comparing patient cohorts in countries that favor non-medical interventions with those that routinely offer puberty blockers (PB) and cross-sex hormones as first-line treatments (Van Breukelen 2025) [4].

  
  

Still on the same point—where Kirby claims that GAC opponents violate the principle of justice by holding it to higher evidentiary standards than other pediatric treatments:

→ Kirby notes that off-label prescribing is common in pediatric populations and often lacks RCTs.

→ However, this argument fails to consider the type of off-label prescribing:

§ In most cases, it involves adapting a treatment already well-established in adults for use in children. While off-label use is common in pediatrics because medications have been tested for the same indication in adults but not in children, using a drug for a completely new indication without appropriate trials is a different matter and cannot be justified [5].

→ Kirby draws on data about PB prescriptions for another indication—precocious puberty. But he overlooks critical differences:

§ Precocious puberty is diagnosed based on measurable and objective biological variables—unlike gender dysphoria, whose persistence over time is itself debated.

§ In children with precocious puberty, puberty suppression lowers sex hormones to age-appropriate levels until natural puberty resumes. In children with gender dysphoria, age-appropriate hormone levels are suppressed, halting appropriate physical and psychosexual development.

Conclusions

Societies have a duty, in the name of justice, to meet the healthcare needs of youth with gender dysphoria by providing the best available holistic care, grounded in evidence. Given the current state of knowledge, gender-affirming treatments (GAC) do not meet these criteria. Therefore, restricting access to GAC to a research context is not only not a violation of justice in healthcare—it is, on the contrary, demanded by it.

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[1] Kirby, J. 2025. A multi-lens ethics analysis of gender-affirming care for youth with implications for practice and policy. The American Journal of Bioethics 25 (6):57–72. doi:

10.1080/15265161.2025.2497983.

[2] ·       Cheung, C. R., E. Abbruzzese, E. Lockhart, I. K. Maconochie, and C. C. Kingdon. 2025. Gender medicine and the cass review: Why medicine and the law make poor bedfel- lows. Archives of Disease in Childhood 110 (4):251–5. doi:10.1136/archdischild-2024-327994.

·       Clayton, A. 2025. Gender-affirming hormone treatment for young people with gender dysphoria: Where do we go from here? Archives of Disease in Childhood. Advance online publi- cation. doi:10.1136/archdischild-2025-328478.

·       Gorin, M., J. Smids, and J. Lantos. 2025. Toward Evidence-based and ethical pediatric gender medicine. JAMA 333 (10):841–2. doi:10.1001/jama.2024.28203.

[3]      Abbruzzese, E., S. B. Levine, and J. W. Mason. 2023. The myth of “Reliable Research” in pediatric gender medicine: A critical evaluation of the Dutch studies—and research that has followed. Journal of Sex & Marital Therapy 49 (6):673–99. doi:10.1080/0092623X.2022.2150346.

[4]   Van Breukelen, G. J. P. 2025. How to improve research methodology in gender care: A non-binary choice. European Journal of Developmental Psychology. Advance online publication. doi:10.1080/17405629.2025.2485221.

[5]  Cheung, C. R., E. Abbruzzese, E. Lockhart, I. K. Maconochie, and C. C. Kingdon. 2025. Gender medicine and the cass review: Why medicine and the law make poor bedfel- lows. Archives of Disease in Childhood 110 (4):251–5. doi:10.1136/archdischild-2024-327994.