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This is what I envision Marius's violin appearing is like in Expert Testimony.

Expert Testimony

By: Leor Sapri

Published: Dec 15, 2023

The core question in lawsuits over state-level age restrictions on “gender-affirming care” or former patients suing their providers for fraud or malpractice is whether sex-trait modification is an evidence-based and ethical medical practice. Recognizing the limits of their own knowledge on such matters, judges have turned to expert witnesses to help them understand the key issues at play. But since both sides in these legal contests appoint expert witnesses to back their claims (typically medical doctors and mental-health professionals), judges must determine which are more credible.

A recent exchange between Moti Gorin, an associate professor of philosophy and bioethicist at Colorado State University, and Alejandra Caraballo, a transgender activist and cyberlaw instructor at Harvard Law School, provides crucial insight into how these questions bear on the outcome of lawsuits over gender medicine. In a paper titled “The Anti-Transgender Medical Expert Industry,” published earlier this year in the Journal of Law, Medicine & Ethics, Caraballo argues that judges should disregard the opinions of medical professionals who testify on behalf of states seeking to restrict “gender-affirming care.” In a newly published letter to the editor in the same journal, Gorin shows the fatal flaws in Caraballo’s arguments. (The journal also gave Caraballo the chance to respond to Gorin.)

Caraballo devotes considerable space to maligning experts and organizations skeptical or critical of “gender-affirming care” as being driven by “anti-transgender” animus. As Gorin points out, these are

serious allegations, directed at named entities and individuals, and presented not on a social media platform or in the opening statement of an attorney engaged in courtroom advocacy but in the pages of a peer-reviewed, academic journal. One should therefore expect strong evidence in support of such allegations, in keeping with the usual norms of academic publishing. Those norms require, inter alia, that easily-verifiable factual claims be true, that accurate and otherwise adequate citations be provided, that the author avoid unnecessarily inflammatory language, and so on.

Caraballo provides zero evidence for these accusations. For example, Caraballo describes Stephen Levine, a professor of psychiatry at Case Western Reserve University School of Medicine with five decades of clinical experience treating gender dysphoric patients, as “one of the most prolific anti-transgender medical expert [sic] in the country” and claims that he “has not published peer-reviewed research in the relevant field.” As Gorin observes, however, “It is easy to confirm that this claim is plainly false.” Levine, who chaired the HBIGDA’s (now WPATH) Fifth Standards of Care and served on the American Psychiatric Association’s DSM-IV Subcommittee on Gender Identity Disorders, has many peer-reviewed publications in the field, including landmark papers like “The Myth of ‘Reliable Research’” that touch directly on the evidence base for pediatric gender medicine.

Gorin provides other examples of blatant falsehoods in Caraballo’s paper, raising the question of how the Journal of Law, Medicine, & Ethics could allow such defamatory statements to be made in its pages without even minimal corroboration. As Gorin later explained on X, academic publishing relies on a certain degree of trust. Editors and reviewers assume that scholars will not, for instance, blatantly mischaracterize sources they cite, as Caraballo appears to have done. Recently, a prominent physician argued that the scandal of pediatric “gender-affirming care” was made possible due to a “broken chain of trust” within the medical and scientific establishment, with activist clinicians and researchers exploiting the chains of trust built up over generations by their professional forebearers. That physician is Stephen Levine.

No less embarrassing for Caraballo than the many factual errors in the original article is Caraballo’s apparent misunderstanding of the rules of evidence in adjudication. Here, Gorin takes Caraballo to task on the author's own turf and shows a superior grasp of the issues.

First, some context. Courts are generally a bad forum in which to settle scientific debates. Among other problems, judges are not subject-area experts and have little time to master the nuances of scientific controversies; they must inevitably decide between competing claims of subject-area experts. By definition, such contests require non-experts to substitute their own judgment for that of at least one expert—a scenario that can easily undermine the judge’s credibility in the eyes of scientific critics.

In the 1923 case Frye v. United States, the D.C. Court of Appeals opined that it was hard to determine when a “scientific principle or discovery crosses the line between the experimental and demonstrable stages,” and that, in order to do so, judges should consider whether a scientific principle or discovery has “gained general acceptance in the particular field in which it belongs.”

In 1975, Congress adopted the Federal Rules of Evidence. Rule 702 states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In the 1993 case Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702 supersedes the Frye test of “general acceptance." The Court laid out four criteria to guide judges in their assessment of the reliability of expert testimony:

1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2. The testimony is based on sufficient facts or data; 3. The testimony is the product of reliable principles and methods; and 4. The expert has reliably applied the principles and methods to the facts of the case.

It’s easy to see how these doctrinal issues bear directly on the current debate over “gender-affirming care.” When advocates of gender-affirming care maintain that these controversial procedures are evidence-based, they cite the consensus of professional medical associations. Critics point out that this consensus is manufactured and enforced through suppression of contrary viewpoints. They point out that consensus-based medicine is not necessarily evidence-based medicine.

Caraballo’s position is that expert testimony from the likes of Levine and the psychologist James Cantor—author of the definitive, peer-reviewed fact-check of the American Academy of Pediatrics’ policy statement on “gender-affirming care”—should be discounted on the grounds that Levine and Cantor do not directly provide “gender-affirming” medical treatments to minors and that they operate outside the consensus of U.S. medical associations.

Regarding the first claim, if clinicians do not approve minors for puberty suppression, cross-sex hormones, or surgeries, that might be because they don’t believe that these interventions are evidence-based and ethical. Moreover, as Cantor has explained in expert witness testimony, the expertise of clinicians is different from that of scientists. The clinician’s expertise “regards applying general principles to the care of an individual patient and the unique features of that case.” The scientist’s expertise “is the reverse, accumulating information about many individual cases and identifying the generalizable principles that may be applied to all cases.” Accordingly, Cantor writes, “In legal matters, the most familiar situation pertains to whether a given clinician correctly employed relevant clinical standards. Often, it is other clinicians who practice in that field who will be best equipped to speak to that question. When it is the clinical standards that are themselves in question, however, it is the experts in the assessment of scientific studies who are the relevant experts.” For good reason, Caraballo’s criterion—that a doctor must practice a type of intervention in order to qualify as an expert in the evidence base for that intervention—is neither mentioned nor implied in the Daubert standards.

Not just that, but clinicians who practice “gender-affirming care” are likely to find themselves in intellectual, professional, and financial conflicts of interest, which may produce confirmation bias and impair their ability to dispassionately assess the evidence for the care they provide.

In short, Caraballo’s characterization of who counts as an expert is a classic example of the No True Scotsman fallacy. Caraballo conveniently defines as “experts” only those who practice, and by implication agree with, “gender-affirming care” for kids. It would be as if we agreed to define only clinicians who practice lobotomy as “experts” on whether lobotomy is an evidence-based practice.

As for Caraballo’s second point, about “anti-transgender” experts being outside the consensus in the field, Gorin points out that, under Daubert, this should not disqualify the opinions of these experts. To recall, the court in Daubert explicitlyrejected the “general acceptance” standard in Frye as a prerequisite for determining the reliability of testimony. “It is easy to see why ‘general acceptance’ is too strict a requirement,” writes Gorin. “It would exclude from the start expert testimony that, despite being inconsistent with generally-held opinion or consensus, proves to be consistent with the truth.” Commitment to science means above all commitment to the scientific method. As the Court put it in Daubert, “The focus . . . must be solely on principles and methodology, not on the conclusions they generate.”

Caraballo’s typo-riddled response to Gorin’s criticism complains that he is “hyper fixat[ed] on minor errors rather than the broader argument.” (In fact, Gorin’s examples of Caraballo’s factual errors go to the heart of Caraballo’s thesis that the experts in question are driven by animus rather than good-faith disagreement with the prevailing consensus.) Caraballo then resorts to more mudslinging and name-calling, for instance characterizing Levine as a “conversion therapist” because he uses exploratory therapy for his pediatric patients rather than automatically “affirming” their self-diagnosed “gender identity” as permanent and eligible for hormonal treatments. To support the accusation, Caraballo cites a paper by a transgender bioethicist who opposes “gatekeeping” for drugs and surgeries on the grounds that teenagers should have the right to turn their bodies into “gendered art pieces.”

Caraballo then continues to impugn the motives of “anti-transgender” expert witnesses by claiming that they are paid for their work—an unremarkable observation and one that conveniently ignores the fact that experts on the other side are also paid. For example, Jack Turban is paid up to $400 per hour to testify against state age-restriction laws. (It was money well spent: Turban revealed that he does not understand the basics of evidence-based medicine.)

Speaking of ulterior motives: in a footnote, Caraballo discloses that “these witnesses provided a report that impacted my ability to access care when I visit family in Florida. I can no longer obtain refills there legally due to restrictions placed on adult care. Additionally, my care in Massachusetts has been severely affected by the large influx of trans people fleeing states such as Florida. While this may be an elective academic indulgence for Gorin, this affects my healthcare directly.”

Caraballo ends by wondering, “Why should gender affirming care be considered differently where non-practitioners of a field testify on the relevant standards, they themselves do not practice?”

The answer is simple: those who provide irreversible, sterilizing, and often disfiguring “treatments” to kids on the belief that these young people were “born in the wrong body” are ideologues who need to be reined in by their more professional colleagues. For Caraballo, apparently, only blood-letters should testify on the merits of blood-letting.

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When activists get desperate, their lies get more egregious.