The Judge as the Final Arbiter — and Guidelines as a Cover

In the political debate about transgender healthcare, one term keeps coming up: medical-ethical. Members of Parliament refer to it, healthcare administrators invoke it, and committees are named after it. But what exactly lies at the heart of the medical-ethical issue — who suffers harm, how that harm occurs, and who is responsible for it — remains strikingly vague. The debate circles around the words without addressing the substance.

The Guideline as the Standard of Care

Dutch medical law is based on a simple principle: a healthcare provider acts with due care if they follow the applicable professional standard. That standard is defined by guidelines — in this case the Dutch Protocol, the WPATH Standards of Care and the guidelines issued by professional associations. A psychiatrist, endocrinologist or surgeon who acts in accordance with these guidelines has, legally speaking, done what could reasonably be 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 evidence supporting puberty blockersand cross-sex hormones for minors is “remarkably weak.” Sweden, Finland and Norway reached the same conclusion and revised their policies. The guidelines followed by Dutch healthcare providers are not the result of robust evidence — they are the result of consensus within a field that subjected itself to little external scrutiny for years.

The Paradox of the Courtroom

Imagine this: five years from now, a series of lawsuits is filed. Young adults who were treated as teenagers claim that the care they received was irresponsible. That their doubts were not taken seriously. That alternatives were not discussed. That irreversible interventions were carried out even though the scientific basis was lacking.

The judge reviews the case. Against what standard? Against the professional standard that applied at the time of treatment. And that standard was: the Dutch Protocol, WPATH and the professional association guidelines. The healthcare provider followed those guidelines. The judge concludes that the provider acted in accordance with the applicable standard. No liability.

The guideline that made the harm possible is simultaneously the get-out-of-jail-free card for the person who caused the harm. As perverse as it may be — but legally sound.

What This Means for Politics

Members of Parliament who speak of “medical-ethical” issues without identifying this mechanism are missing the point. The question is not whether transgender healthcare is ethical in the abstract. The question is whether the guidelines on which healthcare providers rely can withstand critical scrutiny — and whether politicians are prepared to say so openly, even if that implies that the current standard is inadequate.

As long as the guideline itself is not questioned, the healthcare provider is not questioned. And as long as the healthcare provider is not questioned, the patient who suffered harm is left out in the cold — legally, financially and socially.

The Scandal That Goes Unnamed

The scandal is not that healthcare providers violated the rules. The scandal is that the rules themselves were flawed, that this has been known for years through international evaluations, and that politicians know this but are afraid to tackle the guideline because doing so would mean acknowledging that care was provided for years on an insufficiently substantiated basis.

This is not a medical-ethical question in the abstract sense. It is a concrete legal and political problem with concrete victims. The courts will ultimately become involved. The question is whether politicians will still be able to say that they did not see it coming.