Transgender children: limits on consent to permanent interventions

This blog by Heather Brunskell-Evans is part of a series on ethical and legal perspectives in sexual and reproductive health. Be sure to check out the companion piece ‘Capacity-based decision-making for transgender adolescents’ by Timothy F. Murphy.

When we talk about ‘transgender children’, we are referring to those children allegedly born with an innate transgender identity at odds with their ‘assigned sex at birth’. In The Medico-Legal ‘Making’ of ‘The Transgender Child’, I trace the concept of ‘The transgender child’ through its development by the Gender Identity Development Service (GIDS) commissioned by NHS England at the Tavistock and Portman Hospital Trust; the Equality Act 2010; pressure groups such as GIRES, Mermaids and Gendered Intelligence; and an increasingly powerful transgender activism movement.

In contrast to the Tavistock’s historical psycho-therapeutic approach to gender dysphoria, GIDS has shifted to a medical model of childhood gender dysphoria. GIDS’ medical pathway has profound consequences for safeguarding children and young people, in particular with regard to whether they can give informed consent to hormone treatment. In this blog I outline the concerns which are detailed in my paper.

Mental Capacity
GIDS deploys three Gillick Competence criteria to assess whether a child under 16 can give informed consent.

The first criterion is that the child has the mental capacity to fully understand the likely consequences, both positive and negative, of her decision-making. However, she or he is not psychologically competent to assess the likely consequences of a complex and contested medical area whose future ramifications will have little or no meaning. Not only are all the long-term impacts of hormone therapy unknown to clinicians themselves, a child will have little or no cognisance of a future in which she or he will become a medical patient for life, may come to regret lost fertility (including, for example, the lack of breasts, ovaries and uterus), and the lack of organs for sexual pleasure.

Moreover, the information given by GIDS to children is simply not factual. For example, children are told that hormone blockers will make them feel less worried about growing up in ‘the wrong body’ and will give them more time and space to reflect. This reassurance is contradicted by GIDS’ own recognition that research evidence demonstrates that after one year young people report an increase in body dissatisfaction; rather than giving the opportunity to change their minds children almost invariably proceed to cross-sex hormones.

Alternative Treatments

The second criterion is that the child has been advised of alternative treatments (including no treatment at all), and the likely positive and negative consequences of those alternatives. GIDS uniformly directs parents and children to resources and information given by GIRES, Gendered Intelligence and Mermaids, pressure groups which have no training in child psychology yet have effectively lobbied for the past 30 years for the unequivocal adoption of an affirmative model and the normalisation and desirability of hormone therapy.

There is an alternative model, most notably a gender critical model to which GIDS does not direct parents and children. This model has many ethical and epistemic advantages over the gender affirmative model. The gender critical model is not based on the tentative, unverifiable and disputed neuro-scientific claims that the natal brain is sexed and that a natal male brain can somehow find itself in a female baby. It is based on the unassailable evidence that gender is socially produced, a fact evidenced by historically and culturally different social norms and mores for girls and boys, women and men.

The gender critical model does not confine boys and girls to gender stereotypes, supports them to be comfortable in their own bodies, and helps avoid a lifetime of medical intervention with life-long deleterious consequences which cannot, despite the young person’s fantasy, ultimately transform the body to the opposite sex.

Free from Influence

The third criterion is that child has not been influenced by others in its decision-making. This is an impossible criterion to fulfil. Children are social beings as well as independent actors, and they take up normative identities available within the prevalent culture. The presently circulating cultural notion that some children are innately the opposite sex and can transition to it physically means that many young people are unlikely to be constrained by any concerned GIDS clinician who prefers a psycho-therapeutic approach.

The idea of innate gender identity has rapidly established itself in the cultural psyche, despite the absence of underpinning empirical evidence. Faith that transgender identity is located ‘in the body’ now permeates multiple aspects of our culture: media popularisation; educational curricula in schools; advice given by NHS to parents; and GIDS itself. Collectively these provide the background to children’s everyday lives and combine to construct for them a definitive set of obvious ‘truths’. These ‘truths’ reproduce gender stereo-types that confirm to children they must be transgender, that medical re-assignment will resolve acute discomfort, and that without hormone ‘therapy’ they will be likely to self-harm and probably commit suicide.

Capacity to Consent

In conclusion, the framework of criteria for assessing informed consent is not an overall consideration of the ethics of hormone intervention but a superficial model for correct procedure. Given the disputed ‘truths’ about the aetiology of transgenderism, the experimental nature of the treatment, the significance of the intervention, and the potential irreversibility of the consequences, as well as the young person’s emotional and psychological immaturity, I conclude that children and young people cannot be deemed capable of properly informed consent. A substantive number of anonymous whistle-blowing clinicians and psychotherapists also have profound concerns but daren’t publicly speak out (other than anonymously), a fear symptomatic of the power-knowledge relations which construct what we understand as ‘the transgender child’.

The Medico-Legal ‘Making’ of ‘The Transgender Child’, by Heather Brunskell-Evans was published in the Medical Law Review special issue ‘Regulating the Boundaries of Sex and Sexuality

Declaration of Interests: Heather Brunskell-Evans declares that she has no conflict of interests

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