Last week, TechFreedom filed comments in response to the Federal Trade Commission’s (FTC) request for comment (RFC) to better understand how consumers may have been exposed to false or unsupported claims about “gender-affirming care” (GAC), especially as it relates to minors. Our comments focus on the limited scope of the Commission’s authority and the potential impact of its actions on speech protected by the First Amendment.

“The Commission should leave this to medical professionals,” said Berin Szóka, President of TechFreedom. “The Commission’s broad consumer‑protection mandate is limited to ‘unfair or deceptive acts or practices’ in commerce, not to the practice of medicine. It can, at most, police commercial marketing, but never medical care or non-commercial speech about gender identity. As Commissioner Holyoak has correctly noted, the FTC cannot regulate medical treatment decisions. The RFC nonetheless asks for personal experiences with medical professionals, which are beyond the agency’s jurisdiction.”

“If the FTC is determined to take action on marketing claims about GAC, it should begin by holding a workshop on the scope of its authority,” continued Szóka. “The Commission would have to tread very, very carefully. That requires considering the views of medical experts on the efficacy of GAC, as well as legal scholars on how the First Amendment, the FTC Act and court decisions limit the agency’s consumer protection authority. This should be done long before the Commission says anything saying about GAC—and certainly before proceeding with any enforcement action. During the first Trump administration, the Commission held roughly two dozen public workshops to explore the future of consumer protection and competition law. These offer an excellent model for how the Commission might proceed in this area with appropriate caution.”

“Commissioners and staff must avoid prejudging the lawfulness of any particular claims about GAC,” warned Szóka. “However the FTC decides to proceed, Commissioners and FTC staff must be careful not to comment about the potential unlawfulness of statements about GAC, lest they further jeopardize the impartiality of the Commission in any future enforcement actions. Chair Ferguson and several others have already been outspoken in condemning GAC. This could be enough for courts to void FTC enforcement actions for prejudgment.”

“The FTC should not become another instrument of the culture war that has consumed so much of American society,” concluded Szóka. “The Commission should stick to the task Congress assigned to it, and in which its staff has expertise: consumer protection. Everything else is a distraction from this important mission.”

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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