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Abstract
This article considers the claim that gender diverse minors and their families should not be able to consent to hormonal treatment for gender dysphoria. The claim refers particularly to hormonal treatment with so-called ‘blockers’, analogues that suspend temporarily pubertal development. We discuss particularly four reasons why consent may be deemed invalid in these cases: (1) the decision is too complex; (2) the decision-makers are too emotionally involved; (3) the decision-makers are on a ‘conveyor belt’; (4) the possibility of detransitioning. We examine each of these reasons and we show that none of these stand up to scrutiny, and that some are based on a misunderstanding of the nature and purposes of this stage of treatment and of the circumstances in which it is usually prescribed. Moreover, accepting these claims at face value could have serious negative implications, not just for gender diverse youth, but for many other minors and families and in a much broader range of healthcare settings.
- legal aspects
- sexuality/gender
- clinical ethics
- informed consent
- minors/parental consent
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Introduction
‘We are essentially seeking to say that the provision […] for young people up to the age of 18 is illegal because there isn’t valid consent’.1
This paper is prompted by the judicial review application against the Tavistock and Portland National Health Service (NHS) Foundation Trust and NHS England claiming inter alia that adolescents cannot give valid consent to treatment that temporarily suspends puberty. Controversially, the High Court has upheld the judicial review application and ruled that children and adolescents are unlikely to be able to give informed consent to such treatments.2
Our reason for writing this paper is not to comment on the specific case in question, and neither do we attempt to predict what the outcome of an appeal will be. Rather, we are interested in the soundness of the arguments behind the proposition that it is not possible to give valid consent to medical treatment for gender dysphoria, as, or on behalf of a minor.
Our discussion here focuses primarily on consent to ‘blockers’. Hormonal treatment for gender dysphoria refers to two different types of intervention: the first is the temporary suppression of puberty with GnRHa or similar medications, colloquially referred to as ‘blockers’; the other is gender affirming treatment with oestrogen or testosterone, known as ‘cross-sex hormones’. ‘Cross-sex hormones’ are usually not prescribed before the age of 16 when, at least in England and Wales, minors have a statutory right to consent to medical treatment.3 Although cross-sex hormones induce some irreversible physical changes, whereas blockers do not,4 the claim that consent to treatment is invalid arises primarily in the context of the provision of blockers.5
This article is not commenting on the standard of care offered at gender clinics nor on the issue that established care pathways may face problems. We simply wish to demonstrate the fallacies that lie behind the claims that gender diverse youth (or parents) lack the capacity to give valid consent to medical treatment for gender dysphoria. Legal and ethical discussions here must tread carefully and be sure to distill evidence-based issues in healthcare provision from the ‘moral panic’ backlash,6 that is, widespread irrational fears that exaggerate the ‘threats’ posed by increasing trans visibility and the rising number of minors who are seeking treatment for gender dysphoria.7 Accepting these claims at face value could have serious negative implications, not just for gender diverse youth, but for many other minors and families and in a much broader range of healthcare settings.
We first address the legal requirements for valid consent in England and Wales before looking at some of the common claims made regarding consent and the care pathways of adolescents treated for gender dysphoria.
Legally valid consent in England and Wales
The claim that gender diverse minors lack the capacity to consent arises partly because of the early age at which the first stage of treatment can be offered. While other treatments (‘cross-sex hormones’ and surgery) usually are not offered until age 16 or 18, blockers are prescribed based on the patient’s physical and psychological/emotional maturation rather than age.4
They can be prescribed after the onset of puberty, and the age at which this occurs varies in different individuals. There is no specific framework in place that governs consent in relation to these treatments8 although Bell v Tavistock 2 has now cast doubt as to whether children can achieve Gillick competence in relation to such treatments.
Legally, an individual is classified as a child under the age of 18. However, adolescents over the age of 16 have a statutory right to consent to medical treatment.3 For those under 16, Gillick v West Norfolk AHA [1985] 3 ER 42 established that a child’s ability to consent to treatment is not age-related, but instead depends on whether the individual child has achieved sufficient maturity to understand what is proposed. If a child is deemed ‘incompetent’, then consent is needed from someone with parental responsibility, or the courts. To judge whether a child is Gillick-competent, the court will consider a range of factors including whether:
The child understands the nature of their medical condition and the proposed treatment;
The child understands the moral and family issues involved;
The child has sufficient life experience and maturity; and
The child is capable of weighing up the risks and benefits.9
These are also the factors a clinician has to consider in making decisions about Gillick-competence.
It is important to note that someone with parental responsibility can provide consent in those cases where a physician decides that a particular child is not Gillick-competent in relation to a specific treatment.10 This means that even if, hypothetically, it was concluded that no adolescent can be Gillick-competent to give consent to blockers, this would not exhaust the consent issue. To show that there cannot be valid consent it would also be necessary to show that consent by a parent or guardian to these treatments can never be valid. It is one thing showing that some children and adolescents are not Gillick-competent in relation to a particular decision, quite another to show that no child, no adolescent and no parent or guardian can ever be competent in relation to that class of decisions.
It is furthermore important to note that no healthcare professional should offer a treatment option to a patient, whether child or adult unless the healthcare professional believes that the treatment option is in the best interest of the patient.11
Care pathways and valid consent
There could be various concerns raised as the basis for the claim that consent to blockers cannot be valid, these include:
The decision is too complex.
The decision-makers are too emotionally involved.
The decision-makers are on a ‘conveyor belt’ and cannot get off.
We will provide a critical analysis of each of these before reaching an overall conclusion. Much of these arguments are used to challenge the validity of consent to the treatment for gender dysphoria.
1. The decision is too complex and/or the outcome too uncertain
The decision about whether and when to suspend puberty is often a complex decision involving a number of separate elements, some of which involve considerable epistemic uncertainty and predictions about the future. Blockers are a simple and effective treatment in the biological sense that they suspend puberty with relatively few side-effects. However, their effect in the individual case on gender dysphoria, successful social transitioning, family dynamics, later decisions about transitioning, de-transitioning or gender fluidity and so on are more uncertain and difficult to predict, making the decision in the individual case potentially complex. On the other hand, it may also be a simple decision, for example, when one of the many elements become over-riding as in relation to an adolescent with very severe gender dysphoria and no other treatment options.
But let us accept for the sake of argument that this is a complex decision taken in a context of quite pervasive epistemic uncertainty. Does that invalidate consent? The first thing to note is that decisions with these characteristics are ubiquitous in medicine and are made hundreds of times every day. If cognitive complexity and uncertainty invalidated consent there would be many treatments, for example, in oncology for which the patients could not give valid consent. It is also important to note that as soon as patients are legally classified as adults (or from the point of view of ethics classified as competent decision-makers) we accept their consent to treatment as valid irrespective of the complexity of the decision. Furthermore, if there were decisions that were so complex that consent became impossible because of the complexity, it would entail that no one could make these decisions. Any other decision-maker than the patient would face the same complexity and would therefore be unable to make a valid decision.
If we specifically concentrate on the paediatric context, parents have to make decisions about treatments with exactly the same pharmaceutical products for children with central precocious puberty, and adolescents have to make decisions about treatments of their endometriosis. These are also complex decisions in a context of significant uncertainty, but no one has so far suggested that the consent that is given is invalid and that such treatment decisions should only be made by the court.
It might be the case that the bar for Gillick-competence is more difficult to reach for very complex decisions, but this is no a priori reason to believe that it cannot be reached.
2. The decision-makers are too emotionally involved
It is likely that many children and adolescents with gender dysphoria and their parents/guardians are emotionally invested in decisions about treatment. It would be rather odd if they were not. But emotional investment and involvement does not in itself invalidate decision-making and any consent following from this decision-making. If it did, it would have the strange effect that in contexts where patients or proxy decision-makers are emotionally involved they could neither consent to, nor refuse offers of treatment because both consenting and refusing would be the result of emotionally involved decision-making.
But maybe the point is that being too emotionally involved, can hamper decision-making and in extreme cases invalidate consent. Many do, for instance accept that there might be acute situations where patients are so distressed that it is difficult for them to make decisions; and courts have sometimes accepted this argument in relation to women in labour.13
However, the usual response to this in non-acute situations is not to remove the decision-making to a court of law, but to find ways to ease the emotional tension or distress and help patients make more reflective decisions. Healthcare professionals will, for instance, tell patients that this is a difficult decision, but that they do not have to make it right now but can think it over. Again, these situations are ubiquitous in medicine and if emotional involvement invalidated consent there would be many patients with newly diagnosed cancers, or a recurrence of their cancer who could not give valid consent.
These considerations also indicate that there is nothing emotionally special about the treatment of gender diverse minors. Children with life-threatening cancer, and their parents, are, for instance, likely to be equally strongly emotionally involved.
Another related worry might be that some patients already have their mind set on a particular course of action before they are advised by a healthcare professional, and that that invalidates any consent they may subsequently give. Again, if this is the case, it is not confined to gender care. It is, for instance in the literature on antibiotic resistance often claimed that parents come to the General Practitioner wanting to have, and expecting to get a prescription for antibiotics for their child with a sore throat and fever.14 15 However, if the healthcare professional only offers treatment options that are suitable and in the best interest of the patient,2 then it cannot invalidate consent that the patients already know which one of the suitable options they prefer, or even that the preference is very strong.
3. Conveyor belt argument
Research shows that there is high correlation between the use of blockers and later medical transition.16 This has led to claims that blockers set adolescents and families on a path towards transition, from which it is then allegedly difficult to step out.17 18 If this is true, then one might doubt whether consent can be valid; perhaps it might be valid at the start of treatment, but then somewhere along the way people might lose the ability to withdraw. But is there any evidence that hormonal treatment sets people on such a ‘conveyor belt’?
Whereas the majority of those who begin medical treatment with blockers proceed with cross-sex hormones and/or surgery later on, this does not show that it is the treatment itself, rather than need, that sets the whole apparatus of later medical transition in motion. Blockers are only recommended to pubertal adolescents who continue to experience strong cross-gender identification16 and strong and persistent gender dysphoria after the onset of puberty,19 or whose distress increases after the onset of puberty. It is therefore likely that only those who would have transitioned anyway are deemed eligible for blockers.20
One could still be concerned that it might be difficult to ‘step out’ of the treatment, because of the emotional investment made in the process by the patient and their family. Indeed, there are reported cases of adolescents who have experienced detransition as troublesome and arduous.16 Of course, deciding to interrupt treatment and revert to the birth assigned gender might be troublesome, and it would be important, clinically and ethically, to understand why this is so for some, and to try to minimise the likelihood of distress, whatever the psychosexual trajectory of the person turns out to be. However, it would be implausible to believe that the potential difficulties that might be experienced at some stage in the future by either the adolescent or by someone else invalidate consent. The conveyor belt argument, if applied consistently, would mean that people, including adults, would lose their right to access many if not most treatments that are prolonged over time, like rehabilitation, treatment for cancer or degenerative disorders and many others.
Were my adolescent son to tragically have an accident that left him paraplegic, he (with my support) might consent to various therapies in the hope of gaining some recovery of function. We might invest significant financial and emotional resources even in private treatments. Yet, at some point my son might ‘change his mind’ as it were, might decide that overall it is best to accept the loss of function. It is certainly possible that in these circumstances a young person (but also an adult) might feel accountable for the emotional and financial resources that might have been invested. It is even possible that some family members will express regret and disappointment. But it would be unreasonable to say that beginning treatment should be illegal because no valid consent can be gathered due to this potential hypothetical pressure that the patient might experience at some point in the future, should they decide to withdraw from therapy.
Cancer treatment is another obvious example in which people might hope to recover, and might consent to treatment, but somewhere along the way they might decide that for whatever reason they want to withdraw. Families are usually emotionally very involved, and every one of the family, including the patient, might all feel under significant pressure to continue treatment. Decisions to switch to palliative care regimes are certainly not easy in many cases. To suggest that people are unable to consent to initiate treatment because of some future potential difficulties in withdrawing from it, and that treatment should for this reason be deemed illegal, is again not only illogical, but unethical: it would be a violation of people’s right to access the needed treatment.3
The conveyor belt argument suggests that because of some potential pressure that some people might feel at some point, their ability to withdraw from treatment is limited, and therefore their ability to consent is absent. We have shown that none of these presuppositions is sound: people might feel pressure in many cases, and indeed families might be significantly involved, emotionally, in medical decisions that concern their children, but that does not invalidate consent. Rather it calls for clinicians to explain that withdrawing from therapy is an option at any stage and keeping this option open in the future, and it calls on families to be open to that possibility.
4. The possibility of detransitioning
The psychosexual trajectory of adolescents is not always predictable; many gender diverse children appear to ‘desist’, or ‘revert’ to the birth assigned gender, usually when they hit puberty.21
Consent might be deemed invalid, when the outcome of a child’s gender is so uncertain: patients might feel the urge to request treatment, but offering treatment would be inappropriate because of the high probability of detransitioning and fluidity of gender at that stage in their development.
This reasoning is problematic for two key reasons. First, the methodologies employed in the studies that exist on ‘desistance’ in adolescents have been criticised and recorded desistence rates vary significantly in different studies.22 23
Second, there is a significant difference between ‘detransitioning’ and regret (where a patient has undergone gender affirming surgery, eg, and regrets it).24 25 If consent to blockers were invalid because of the possibility of detransitioning, then not only blockers but social transition should also be deemed illegal, because it is found that there is a correlation between full social transition and later medical transition, and also some adolescents who have socially transitioned (without being on blockers) experienced distress at detransition.26 But this would mean limiting the parents’ authority to make decisions in their children’s interests and further impede individuals’ ability to explore and express their gender. We are not suggesting that clinicians should not guide and advise their patients and the parents: we are pointing out that this argument for the illegality of consent to blockers would by coherence extend to social transition.
The reality is that it is not always possible to predict the psychosexual trajectory of a child. Adolescents may desist from seeking further medical treatment for various reasons, and their gender identity can still change and fluctuate even if they later decide not to transition.21 To claim that ‘detransitioning’ is evidence of invalid consent problematically depicts gender as binary, innately fixed where medical treatment represents a form of gender-fixing.27 It also misrepresents the purpose of early medical intervention: part of the goal is to help the adolescent navigate the difficulties in gender identity formation, and giving more space to them without the distress of the biological body.
We are not suggesting that individuals could never regret having taken blockers or having socially transitioned, or that doctors should be blasé about provision of medical treatment. Our broader concern lies in the way in which the possibility of detransitioning is being used to support those wishing to prevent all adolescents from accessing treatment.
In fact, adolescents are in a no-win situation here: if they do transition, it is said that consent was invalid because of the conveyor belt argument. If they detransition, it is said that consent is invalid because they have detransitioned. If the child expresses no regret over the treatment, then consent is deemed invalid because, once more, of the conveyor belt argument—we cannot be sure that the child would have transitioned in a less supportive environment17; if the child expresses regret, again this is taken as an indication that treatment should be made illegal.
Conclusions
Our examination of some core concerns behind the claim that neither gender diverse adolescents nor their parents can give valid consent to gender affirming treatment has demonstrated that they do not stand up to scrutiny. The analysis has further indicated that denying that adolescents and/or parents can give consent in this context would have wide ranging consequences for the general validity of consent in medicine. There would be hundreds of cases each day where valid consent could not be given and which should therefore presumably be referred to the courts.
In light of our arguments then, we must question why such claims are being made in regards to consent to medical treatment for gender dysphoria. Within academia, there is a growing concern that children are being used as a political device to restrict individual’s healthcare access to gender-assignment treatment.28 29 As Slothouber states “the goal is to question (and likely reduce) the rights of trans individuals in the here and now, in favour of future (White, cisgender) children who could possibly be misdiagnosed and undergo ‘unnecessary’ procedures and de/retransition; or, according to the previously discussed logic, even persist in a transidentity when they could have potentially been cis”.30
This logic ignores the mounting evidence of the negative impact that denial of treatment to adolescents has on their mental health: in the last 10–15 years, various agencies have expressed repeated concerns around barriers to access to medical care by transgender youth, and the harm ensuing from the inability of gender diverse adolescents to access medical care is well documented.31 32
The High Court’s recent ruling that children are unlikely to be able to give informed consent to hormonal treatment has serious repercussions for thousands of transgender adolescents: adolescents seeking treatment may now have to go before the courts to assess whether or not the administration of hormone blockers is in their best interests. Beyond this, the case has very serious implications for the law relating to consent to paediatric medical interventions in general.
Acknowledgments
We wish to acknowledge the University of Manchester-University of Melbourne Seeds Fund 2020.
References
Footnotes
Contributors None required.
Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Not commissioned; externally peer reviewed.
↵Another claim is that the treatment in question is experimental. Giordano and Holm have considered the claim elsewhere.12
↵This would be true even for an ‘experimental treatment’ as soon as there was some evidence for efficacy, but the use of blockers is not experimental.12 Another, potentially related concern is that the prescription of blockers should only be suggested by healthcare professionals who are experts in the care and treatment of this patient group. A full discussion of this concern is outside the scope of this paper, but it is important to note that it is irrelevant to the question of whether it is possible to provide consent to the treatment when it is offered by a suitably qualified and expert health care professional.
↵An additional issue, and one which we do not cover in this article, is the public funding of blockers and gender affirming treatments. Although we recognise the importance of this issue, its analysis is beyond the scope of this paper. We are grateful to the anonymous reviewer for raising it.
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