Luke Herrine evaluates the Federal Trade Commission’s transformation into a political tool to advance a conservative social agenda. He argues that no FTC initiative better exemplifies the agency’s politicization than its investigation into gender-affirming care that threatens transgender rights and autonomy.
When President Donald Trump took office for a second time, it was not altogether clear what would happen to the Federal Trade Commission (FTC).
During Trump’s first go-round, the FTC had, with the notable exceptions of monopolization cases against Big Tech, mostly followed the traditional antitrust and consumer protection agendas of business conservatives during the neoliberal era of light-touch regulation. Nothing that conventional seemed possible this time, but what form of unconventionality would emerge? As of January, it seemed just as likely that the second Trump administration would shut down the FTC as supercharge its enforcement powers to go after businesses that did not conform to MAGA’s vision of a new America.
Much remains unsettled, but three things have become clear. First, the FTC will not be shut down, at least not any time soon. Second, some but not all of the Biden-era repudiations of neoliberal governance, such as the priority of short-term efficiencies over goals like the diffusion of market power (i.e. anti-domination), will survive. Third, Chairman Andrew Ferguson is experimenting with a new strand of post-neoliberal governance—one that stretches statutory authorities to go after political enemies and impose a socially conservative vision on firms in the name of “protecting” vulnerable people. Perhaps no action of the FTC thus far better demonstrates its Kulturkampf and fits of spite than its incipient investigation into gender-affirming care for transgender minors.
This third development is disturbing and, especially if the expansion of personalist presidential rule continues, it may yet envelop the other two. It should be condemned by everybody who believes in the basic mission of the FTC—whether they have condemned the turn away from neoliberalism or, like me, have welcomed a more market-shaping agency. It is not consistent with either output-and-choice or anti-domination.
Let me explain.
The post-neoliberal terrain before Trump II
When President Joe Biden took office, he took some of the advice of Senator Elizabeth Warren and her supporters, who argued that responding to the MAGA turn of the Republican Party required revisiting longstanding assumptions about economic governance. Accordingly, his appointees to the FTC began to adumbrate a post-neoliberal version of the FTC. Antitrust practice started to consider workers’ and small producers’ interests alongside the longstanding Chicago and Post-Chicago schools’ focus on price, output, and “efficiencies.” Consumer protection practice expanded beyond optimizing disclosures and toward putting pressure on firms to provide consumers with better choices. In both jurisdictions, the FTC combined a range of regulatory techniques—enforcement actions, guidance documents, regulations, investigations—in an attempt to shape the grounds on which firms’ compete (rather than “letting the market work” and cleaning up the damage left in its wake). The overall goal, as articulated by Democratic Commissioners Lina Khan, Rebecca Slaughter, and Alvaro Bedoya, was to correct for inequalities of power that allowed some firms to manipulate market conditions in their favor and against the public interest. In a word: “anti-domination.”
These changes generated much debate among experts. But the FTC also gained new audiences. It gained broad public support with its new, more populist and often participatory, approach. It also FTC gained new enemies. Most importantly, tech executives and investors began to dump money into anti-regulatory lobbying and electoral strategies.
When Trump took office, part of his coalition wanted the FTC shut down, while another wanted it weaponized. On one hand, Big Tech had buoyed Trump’s campaign and wanted the FTC and its oversight of the industry, including several historical anti-monopolization cases, throttled. Department of Government Efficiency’s (DOGE) chief Elon Musk and Office of Management and Budget director Russell Vought, the latter who played a leading role in Project 2025, sought to eliminate as much of the administrative state as possible in pursuit of an extreme version of more traditional Republican goals of smaller, and supposedly more efficient, federal government. On the other hand, Trump has more enduring support among a—shall we say—fascist-curious wing of the Republican Party. These supporters have long expressed at least nominal concerns about the influence of large corporations in addition to a desire—inspired by Christian nationalism, white nationalism, or general social conservatism—to use economic regulation to achieve their social goals. Today, that includes making America whiter, restricting abortion and birth control, and cracking down on queerness and gender non-conformity.
The emerging agenda under Trump II
The first thing that became clear once Trump took office was that the purge of government agencies would mostly pass over the FTC. Through a combination of public flattery and backroom negotiation, Ferguson has limited the damage from DOGE’s attempt to cut federal spending and managed to carve out a domain for the FTC to continue to operate more-or-less normally (unlike the once mighty Consumer Financial Protection Bureau).
The agency’s affirmative agenda is harder to characterize. There are some features that look much like more typical business conservatism of the first Trump administration (and with Ferguson’s background as a defense-side antitrust litigator). Merger review does seem to have become more forgiving, statements critical of Big Tech have been removed, and Ferguson has “applaud[ed] the revocation of [the] Biden-Harris executive order on competition.” Ferguson also seems likely to stop defending the ban on non-compete agreements that passed under Khan’s leadership.
At the same time, the agency continues to announce a steady stream of consent decrees, payments to consumers, and investigative findings, most of which are carry-overs from the previous administration. In addition, the three Republican commissioners have not backed away from some of their predecessors’ efforts to expand antitrust and consumer protection law beyond neoliberal confines—endorsing the new merger guidelines promulgated under Biden, the importance of protecting workers, and the need to prioritize vulnerable groups, including children.
But the Ferguson-led FTC has also demonstrated something new: an authoritarian streak. Ferguson—in cooperation with others in the administration—has been willing to play hardball to target political enemies and impose a socially conservative vision of “normality” on minority groups.
Regarding the former, Trump fired the two Democratic commissioners in clear contravention of existing law and in the hope that the Supreme Court is ready to overturn the relevant precedents to bolster the “unitary executive.” Ferguson prohibited FTC political appointees from being ABA members or participating in ABA events as retaliation for the ABA’s letter criticizing the Trump Administration’s “affronts to the rule of law” (Ferguson also referred to the ABA’s support for “Big Tech,” but that is hard to credit). He also announced an inquiry into “censorship” of right-wing accounts (that had violated terms and conditions by spreading misinformation) on social media platforms and has joined the DOJ in going after “cartel” behavior from advertisers who refused to place ads next to hateful content. As part of this inquiry, the FTC issued a civil investigative demand—akin to a subpoena— to Media Matters, a media watchdog tracking (mostly right-wing) misinformation, that a district judge recently enjoined as a likely retaliation for exercising First Amendment rights.
Regarding the latter, the clearest example so far has been the investigation of gender-affirming care (GAC) for gender dysphoric minors (that is: people under 18 who experience serious distress in being identified with their sex assigned at birth). It deserves a closer look, because it illustrates both a disturbing disregard for the actual welfare of purportedly protected populations as well as how far the FTC would have to go to push the limits of existing law to implement this agenda.
Zooming in on the disturbing attack on transgender healthcare
So far, the attack on GAC remains in its exploratory stages. On July 9, the FTC held a workshop on GAC for minors that consisted entirely of politicians, doctors, and attorneys engaged in active campaigns against trans healthcare. On July 28, the Commission issued a Request for Information indicating an interest in beginning to bring cases against transgender healthcare providers.
Exploratory or not, these documents point toward troubling abuses of the FTC’s consumer fraud enforcement capacity. The more ambitious theories would involve using consumer fraud law to cut off ongoing scientific debates and to shut down a promising (and still evolving) field of treatment in the name of promoting a religiously influenced notion of a gender binary. Less ambitious theories would have the FTC policing the exact language used by physicians giving medical advice while following widely accepted standards of care. No matter the exact intervention, the likely (and presumably intended) effect is to contribute to a cross-governmental campaign aimed at denying the validity of transgender people and making attempts to transition more difficult and less accessible. Participants at the FTC’s workshop proclaimed these conversations to be in the name of “protecting” children, even though the overwhelming majority of those who have chosen GAC are happy that they did so.
The most ambitious theory—articulated by some FTC workshop participants but not by any commissioner or FTC employee—is that being transgender is itself a lie. On this view, each person has a male or female essence (regardless of the biological complexity), gender dysphoria is a mental delusion, and changing sex is impossible. Therefore, a physician who offers gender-affirming care is lying about the nature of sex and gender, in violation of Section 5 of the FTC Act (prohibiting deceptive acts or practices) and/or Section 12 of the same Act (prohibiting false advertising of drugs or medical devices).
This essentialist theory of gender is untenable in light of biological and social reality, in my view (and the view of most experts in the field), but it is certainly consistent with legal theories that have had some currency among conservatives in federal courts (and abroad). Even so, I think it is unlikely that the FTC would attempt to litigate on this type of theory, at least not in the short term. Doing so would commit the agency to opposing not just GAC for minors but to all GAC—something it has not given any indication of pursuing. It would also require the agency to declare certain theoretical positions deceptive—something courts have looked at unfavorably as an effort to regulate opinion, which presents some First Amendment questions, among other issues. What is more, it would not target the relevant (or, arguably, the material) representations—those that pertain to the outcomes of treatment. A GAC provider need not take any position on the nature of sex and gender in order to represent that GAC makes gender dysphoric patients feel better about themselves and less likely to commit suicide, among other benefits. One can believe that GAC is beneficial even if one believes that transgender people are delusional and one can believe that GAC is harmful even if one believes that it successfully changes patients’ sexes.
FTC commissioners may have an appetite for a slightly less ambitious—but nevertheless quite broad—theory that the transgender healthcare establishment is manipulating science to overstate the benefits and obscure the harms of GAC for minors. Ferguson and other workshop participants repeatedly referred to evidence indicating that the most recent standards of care eliminated bright line age minimums for puberty blockers in part due to advice from Biden administration officials who were concerned that such minimums would be used as political fodder by opponents of transgender healthcare. He and others also referred to the United Kingdom National Institute of Health’s Cass Review’s unduly skeptical treatment of existing evidence for the benefits of GAC for minors.
If this theory were pursued, it would be attempting to turn governing law upside down. Under existing court precedent and the FTC’s own standards, the deceptiveness of claims regarding medical treatments are measured against the “amount of substantiation required by the relevant scientific community.” Courts have repeatedly found that the FTC cannot insist on higher standards for substantiation than experts in the field would accept. Although one never knows what will happen in the current judiciary, it is hard to imagine a judge deciding that a doctor who is following the standards of care endorsed by multiple panels of leading experts is misrepresenting the state of the science. However, the FTC might see it as worth trying, since, win or lose, it could raise the cost of transgender healthcare and demonstrate its loyalty to part of the Trump coalition.
Still, I think the most likely theory the FTC would push (if it decides to proceed at all) would be narrower. Many workshop participants talked about how, in their judgment, transgender healthcare providers downplay the known risks and create an environment of urgency that makes it difficult for patients and their parents to fully understand and consent to puberty blockers and follow-on procedures. Former GAC patients who subsequently detransitioned recounted how they did not understand the full extent of side effects that they were taking on (detransitioning, it should be noted, is rare). Parents of detransitioners recounted how doctors repeatedly told them that the choice was effectively between transitioning and suicide.
To work, this theory would require a more granular factual analysis. It is well-established in case law that creating a false sense of urgency can be deceptive, and, of course, failure to disclose material risks can also be deceptive. I am not aware of any such cases involving otherwise valid medical procedures (usually such claims are reserved for medical malpractice suits and professional self-regulation). More details would be required to know whether the alleged misrepresentations were actually a result of deceptive communications when analyzed in context. For instance: was it actually the case that side effects were not well-communicated or is a regretful patient misremembering? That type of litigation would involve a higher cost and more case-by-case approach. Unless restricted to particularly incautious or predatory physicians, it would still involve an unprecedented degree of FTC evaluation of medical office communications in otherwise legitimate medical fields (unlike, say, fraudulent treatments).
Perhaps the investigation and the threat of some potential future litigation is all they intend to do. After all, they are part of a whole-of-government (and increasingly transnational) effort to attack transgender people and to undermine hard-won standards of bodily autonomy. The FTC under Ferguson may view putting a bit more pressure on healthcare providers as doing their part in this broader effort.
Whither post-neoliberalism?
No matter what, we are now in a darker version of post-neoliberalism. I have argued that a post-neoliberal FTC used to be focused on correcting for power asymmetries that allow some parties to dominate others in commercial transactions. Ferguson has shown some sympathy for some aspects of a more progressive approach to antitrust regulation that levels market power and gives consumers choice. However, his commitment has been inconsistent, while his dedication to going after political enemies and policing the lines of gender has been ironclad.
There is a deep irony here, as conservatives have long accused progressives of wanting to use the FTC paternalistically. In my view, this worry has long been overstated (and ill-theorized). But now we can see quite clearly what bureaucrats imposing their own morals on others looks like. It is one thing to restrict consumer choice in the name of making it easier for consumers to make choices they won’t regret or preventing unfair treatment of vulnerable consumers. It is another to restrict consumer choice in the name of making it easier to be conservative and harder to be something that conservatives don’t like. One is anti-domination, however imperfectly implemented. The other is just domination.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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