The judge as final arbiter — and the guidelines as smokescreen

In the political debate about transgender care, one term keeps surfacing: medical-ethical. Members of parliament invoke it, healthcare executives appeal to it, committees are named after it. But what the medical-ethical core actually consists of — who is harmed, how that harm comes about, and who is responsible — remains conspicuously vague. The debate circles the words without touching the substance.

The guideline as the standard of care

In Dutch medical law a simple principle applies: a practitioner acts with due care if they follow the applicable professional standard. That standard is set by guidelines — in this case the Dutch Protocol, the WPATH Standards of Care and the guidelines of the professional associations. A psychiatrist, endocrinologist or surgeon who acts in accordance with these guidelines has, legally speaking, done what was expected of them.

That sounds reassuring. It is the opposite. Because the guidelines themselves are the problem. The Cass Review (2024) concluded that the scientific underpinning for puberty blockers and cross-sex hormones in minors is "remarkably weak." Sweden, Finland and Norway reached the same conclusion and revised their policies. The guidelines Dutch practitioners follow are not the product of robust evidence — they are the product of consensus within a field that for decades subjected itself to barely any external scrutiny.

The paradox of the courtroom

Suppose: in five years a series of lawsuits is filed. Young adults who were treated as teenagers claim the care was irresponsible. That their doubts were not taken seriously. That alternatives were not discussed. That irreversible procedures were performed while the scientific basis was absent.

The judge adjudicates. Against what? Against the professional standard that applied at the time of treatment. And that standard was: the Dutch Protocol, WPATH, the professional association guideline. The practitioner followed that guideline. The judge finds: acted in accordance with the applicable standard. No liability.

The guideline that made the harm possible is simultaneously the get-out-of-jail card for those who caused it. Perverse as can be — but legally coherent.

What this means for politics

Members of parliament who speak of "medical-ethical" without naming this mechanism are missing the point. The question is not whether gender care is ethical in the abstract. The question is whether the guidelines practitioners rely upon can withstand scrutiny — and whether politicians are willing to say that out loud, even if it implies that the current standard is inadequate.

As long as the guideline is not open to challenge, the practitioner is not open to challenge. And as long as the practitioner is not open to challenge, the patient who suffered harm is left out in the cold — legally, financially and socially.

The scandal that has no name

The scandal is not that practitioners broke the rules. The scandal is that the rules themselves were deficient, that this has been known for years from international evaluations, and that politicians know this but dare not challenge the guideline — because that would mean acknowledging that care has been provided for years on an insufficiently evidenced basis.

That is not a medical-ethical question in the abstract sense. That is a concrete legal and political problem with concrete victims. The judge will eventually be called in. The question is whether politicians will then still be able to claim they did not see it coming.