Capacity-based decision-making for transgender adolescents

By Timothy F. Murphy

This post is part of a series on ethical and legal perspectives in sexual and reproductive health first posted on the BMJ Sexual and Reproductive Health blog. Readers may be interested in the companion piece ‘Transgender children: limits on consent to permanent interventions’ by Heather Brunskell-Evans.

Academics, clinicians, and trans people have focused a great deal of attention recently on so-called ‘rapid-onset’ dysphoria, which involves adolescents asserting trans identities without any meaningful childhood history of atypical gender identity. This phenomenon is not entirely unknown, but Lisa Littman has suggested that it may be far more common than previously thought, and she recommends further study to validate the phenomenon and to investigate it in relation to coping mechanisms and social influences. The merits of this study are very much under scrutiny, but what we do know for sure is that some adolescents experience gender dysphoria and hope for body modifications to align their traits  to  their gender identity. These body modifications take on an added significance for adolescents as they hope for romantic and sexual relationships based on having certain body traits. In fact, however, certain professional standards caution against some of these body modifications, at least until the age of adulthood.

Reversible and Irreversible Interventions

In its recommended standards of care, The World Professional Association (WPATH) for transgender health distinguishes three kinds of body modifications: reversible, partially reversible, and irreversible. Reversible modifications are those that typically involve hormone treatment, whose effect can disappear if the treatment is stopped. (For example, gonadotrophin-releasing hormone analogues (GnRH) can inhibit sexual development at the onset of puberty, but puberty would unfold if the treatment were stopped.) Partially reversible modifications involve treatment whose effects may persist after the treatment is stopped. (For example, body changes related to the administration of masculinizing hormones (or feminizing) in adolescence might leave behind some male-typical (or female-typical) characteristics if the hormones are stopped.) Irreversible treatments are typically surgical and result in the modification or removal of body parts. Out of an abundance of caution, WPATH counsels that irreversible treatments be undertaken only after an individual has reached the legal age of majority.

To be sure, some trans minors have their bodies modified through hormone blocking treatments that delay the onset of puberty and stall the onset of unwanted secondary sex characteristics, to offer a longer period of time to assess whether the gender dysphoria will persist or not. Other trans minors may be treated with hormones in order to trigger the development of wanted secondary sex characteristics. But these treatments are considered reversible in their effects or partially reversible. By contrast – so the thinking goes – surgical modifications of genitals or even faces are another thing altogether, and adolescents should wait for them until they are adults. Or should they always?

As I mentioned, WPATH standards recommend against surgical modifications until the age of adulthood. Yet, in fact, healthcare ethics and the law do already confer on maturing adolescents certain choices about interventions that can have far-reaching effects. Legal emancipation can confer decision-making on some adolescents, and the law in some jurisdictions also confers decision-making capacity on pregnant adolescents and adolescents 16 years of age, as against at any higher threshold of age. In some jurisdictions, the law also permit adolescents to make some healthcare decisions entirely for themselves without parental notification or consent, such as decisions about the termination of pregnancy or securing contraceptives. Some adolescents have been recognized in their right to decline life-sustaining treatment – over their parents’ objections. The right of adolescents to make decisions for themselves under these circumstances is not based on achieving a certain age threshold but on the capacity of the adolescents to evaluate the meaning of the decisions for themselves In effect, the conferral of rights on adolescents involves respect for their emerging decision-making capacities, and the significance of the decisions for them.

Capacity-based decision-making

In Adolescents and Body Modifications for Gender Expression, I argue that the threshold for irreversible body modifications ought to be understood in relation to decision-making capacities rather than in relation to chronological age alone. These capacities include: the capacity to understand the nature of the body modifications wanted, the capacity to appreciate the consequences of the body modifications in terms of risks and benefit, the expression of a stable preference for the modifications, the capacity to reflexively link the body modifications to desired outcomes, and the capacity to express desires in relation to a stable set of values. These elements all figure in the ‘decision making capacity’ that is the fulcrum of healthcare decisions for adults.

I argue that the law should embrace capacity-based decision-making by adolescents with gender dysphoria in regard to hormonal and surgical interventions, to help align their bodies with their gender identity and ideals.

That is, the degree of respect owed to minors for body modification should be scaled according to their decision-making capacities rather than age alone. This respect will also be owed to maturing adolescents in regard to decisions about fertility preservation, since there is no reason to think that trans people do not want to become parents to genetically related children.

Desistance

One issue that deserves attention in this analysis is the question of ‘non-persistence’ of a trans identity from adolescence into adulthood. (This is sometimes known as ‘desistence.’) Certainly, one reason to be cautious about indulgently changing the bodies of trans adolescents is the possibility that their gender dysphoria resolves later on. This would be especially true if ‘rapid onset gender dysphoria’ is a transient phenomenon. But as trans identities becomes normalized, it remains desirable that healthcare offers people the body modifications that will resolve their gender dysphoria as soon as practical. It is also not clear that all trans adolescents who modify their bodies would regret those modifications to an extent that should prevent any maturing adolescents from modifying their bodies.

As trans identities become more and more socially normalized and as healthcare becomes better equipped to meet their needs, more trans adolescents are likely to come forward to secure the body modifications that are important to them. As a matter of ethics and law, adults enjoy a wide degree of freedom in securing hormonal and surgical interventions to align their bodies with their desired gender appearance. As we have in other domains of healthcare, we should move to confer on adolescents respect for their decisions, to the extent they have the relevant decision-making capacities in regard to choices that are fundamental to their welfare.

 

Adolescents and Body Modification for Gender Expression [OPEN ACCESS] by Timothy F. Murphy was published in the Medical Law Review special issue ‘Regulating the Boundaries of Sex and Sexuality

Declaration of Interests: Timothy F. Murphy declares that he has no conflict of interests

(Visited 1,071 times, 2 visits today)