In the U.S., the mainstream medical (and legal) community strongly supports gender-affirming care for young people. Most American doctors “maintain… that “gender-affirming care is essential, life-saving medical treatment that supports individuals in living as their authentic selves”-- while conservative politicians disagree.
The frisson doesn’t end there. Even within the medical community, there is dissent. European physicians are far less sanguine about these treatments than their American counterparts, from expressing caution to outright skepticism. The schism is fueling legislation banning medical interventions for Trans-youth.
Buyer’s Remorse
Twenty-six states have legislatively banned or restricted trans care for minors. The constitutionality of such legislation will soon be decided by the Supreme Court in US v. Skermetti. But at least one state is trying another gambit. To forestall the equal protection arguments that an outright ban may trigger, Utah is imposing a not-so-subtle intimidation tactic designed to discourage doctors from providing trans-care. How? By allowing minors to retroactively revoke their informed consent until they reach the age of 25 – seven years after maturity.
No longer will doctors have the safety net of a limited statute of limitations, circumscribing malpractice premiums. No longer will doctors rest easy, knowing liability will not accrue if they follow the standard of care. Under this new legislation, legally competent teens who consent to treatment are free to revoke their decision and sue as if they had never consented in the first place. Further, minors apparently can withdraw consent provided by their parents on their behalf. While “Buyer’s Remorse” is rejected in other settings, such behavior will be countenanced for trans youth.
The legal trajectory of trans care for minors was launched with the Kiera Bell case, when a teenage British girl demanded treatment to enable transitioning to male, only to later recant as she matured. She sued the National Health Service (NHS), claiming significant bodily harm and impairment of her fertility, arguing that despite her insistence at 15, she didn’t have the mental maturity to understand the consequences of her decision and hence could not furnish informed consent. The lower court agreed. But, on appeal, she lost; the court ruled that Ms. Bell was considered competent when she made the decision and bears responsibility for its consequences.
The decision launched a governmentally-mediated medical soul-searching exercise through a literature review by noted pediatrician Dame Hilary Cass. The Cass report, a meta-analysis by the University of York, concluded “that we don't have good evidence" that puberty blockers are safe to use to "arrest puberty," and resulted in banning the routine use of puberty blockers and hormones for gender-dysphoric minors outside of a newly commissioned clinical research trial.
Medical Judgment or Legal
Informed consent requires a patient to be competent in understanding and weighing the risks, benefits, and treatment alternatives. Competence can be impaired by a legally imposed status, such as “vulnerability.” e.g., prisoners or a medical condition, e.g., cognitive dysfunction like dementia). In the UK, the standards for determining competence in minors originating from Gillick v West Norfolk and Wisbech Area Health Authority which established that the child’s competence to make medical decisions, to be "Gillick competent," would be based not on age, but on the individual child’s ability to understand the medical issues and make a reasoned decision –as determined by their physician -- based on an assessment of mental and psychological maturity – Thus, Per the Bellcourt, this holding specifically applies in trans cases.
By contrast, establishing competence for informed consent purposes in the US is entirely a legal matter. Generally, minors under 18 are legally constrained from exercising informed consent; they are incompetent – as a matter of law. While exceptions exist, these arise incident to issues where the minor has the knowledge or experience necessary to make applicable choices, such as abortion, contraception, or sexually transmitted diseases. Additionally, the risks are generally known, and consequences immediate.
In situations involving cancer or anorexia treatment, an American teen, even on the cusp of “legal” maturity, has been ruled incompetent to choose or refuse treatment. Same with truancy. In most states, teens attend school whether they choose to or not. The European approach could not be more different. In the Netherlands, for example, minors as young as 12 may refuse chemotherapy.
Occasionally, American courts will find an individual between ages 14 to 16, a “mid-teenager,” to be a “mature minor,” sophisticated enough to fully understand the ramifications of their decisions. This reasoning has been used to allow mid-teenagers the capacity to consent to gender-affirming care, notwithstanding some pending American cases that argue trans-youth are per se incapable of providing consent, as no teenager is in a position to fully understand what sacrificing fertility or libido entails.
The Cass report concurs, concluding that while a teenager may be “generally” sophisticated, trans-care treatment raises issues for which the minor and many adults haven’t the experience to enable a voluntary or informed choice.
The Wisdom of The Child
Does any 15-year-old have the “wisdom” to choose to relinquish biological child-bearing (or sexual pleasure) in the future? The Cass report’s findings illustrate this concern that children about to embark on hormonal interventions limiting or foreclosing child-bearing ignore recommendations to preserve their gametes as they rush to relieve their immediate pain of gender distress. Additionally, the report notes the developing brain of the adolescent may be pre-dispositive of impulsive behavior, with puberty depriving teens of the mental stability needed to consider all consequences. The Cass report also highlights the unknowns involved in trans-treatment, considering trans-care to be experimental, at least for now. Adults, of course, are deemed capable of consenting to risky or experimental treatment. Are teens?
The Utah statute highlights this legal conundrum, but is it “fair?” If the minor is legally competent to choose the treatment, they must be mature enough to foresee its consequences. To consider a “mature minor” competent to furnish consent, only to allow its revocation a decade later, is an admission the minor didn’t have the requisite maturity and capacity to begin with. Since we wouldn’t countenance such “legal regret” in an adult (society could never function if we did), we shouldn’t allow the maturity requirement to dissolve in relieving the minor of the responsibility for the consequences of their decisions. Otherwise, the child is boxed into a disparity, mature enough to make the decision but not mature enough to stand by it. In other words, legally speaking, the minor is either competent to provide informed consent- or isn’t. Allowing consent today, which can evaporate tomorrow – doesn’t cut it.
Consistency may be the hobgoblin of little minds. It is, however, necessary for the rule of law to enable a functioning society. We can’t have it both ways. Either a teenager is capable of informed consent, or they’re not—but allowing retroactive revocation years later rewrites the legal contract i. Suppose we permit “buyer’s remorse” to undermine medical judgment and legal finality. In that case, we risk turning adolescent care into a legal minefield, where no decision is truly final, and no provider is ever safe.
