By Shannon Fyfe and Elizabeth Lanphier

In a recent decision from the High Court of Justice of England and Wales, three judges ruled that young people under the age of 16 may only consent to the use of medication intended to suppress puberty (PBTs) if they are competent to understand the nature of the treatment, and the court expressed serious skepticism that young people under the age of 16 could understand the nature of such treatment. The decision effectively created a special status for decision-making about PBTs and departs from standard practices regarding medical consent by minors aged 16 and 17.

In Bell v. Tavistock, the court reviewed Tavistock and Portman NHS Foundation Trust’s practices, through its Gender Identity Development Service (GIDS), of prescribing PBTs to persons under the age of 18 who experience gender dysphoria. PBTs pause puberty onset and its accompanying physical changes, which can improve psychological well-being for transgender and gender diverse youth. Since PBTs do not cause permanent physical changes, they can give young people and their families time to think about future treatment decisions. Cross-sex hormone treatment (CSH), on the other hand, is not prescribed until at least age 16, and can cause irreversible physical changes.

The judges recognized the statutory presumption that young people aged 16 and over have the ability to consent to medical treatment in the UK, but ruled that it would nonetheless be appropriate for clinicians to seek authorization from a court prior to initiating PBTs (and CSH) for patients under 18 years of age. The court justified this exception to statutory practice for two reasons: PBTs are “innovative and experimental,” and they can have “long-term consequences.”

Bell v. Tavistock was wrongly decided for two key reasons. First, the judges adopt an unwarranted assessment that a present decision to pursue PBTs implies a future decision in favor of CSH. Second, what follows from this assessment is an absurd view of a young person’s ability to consent to PBTs.

Regarding the first issue, the judges express concern that data show most individuals who initiate PBT proceed to CSH. From this they conclude that a decision to start PBTs is simultaneously a more weighty decision to take CSH. This reasoning is unwarranted. The evidence presented suggests several other, more logical, conclusions.

Because patients have to wait on average about two years for an appointment with GIDS, young people have been experiencing gender dysphoria for many months to years by the time of their appointment (if gender dysphoria resolves without medication potential patients cancel their appointment). For patients who continue to pursue treatment, GIDS staff work across many appointments to ensure that consent to PBTs is informed. While the judges falsely assume this means every young person is eventually convinced that PBTs are the right choice for them, it more accurately suggests that PBTs are actually an appropriate treatment for young people who have been experiencing persistent gender dysphoria.

That many patients who decide to initiate PBT continue to CSH is not dispositive that PBT causes patients to do so, or that a decision in favor of PBT is also a decision in favor of CSH. This more likely reflects the clarity with which individuals decide in favor of PBT to address their persistent gender dysphoria, that in time, and following appropriate informed consent, leads them to seek further treatment.

The second flaw is the judges’ view of consent exceptionalism. They impose standards for competency to consent to medical treatment related to gender-identity not applied to other medical treatment decisions, even when similar considerations about long-term consequences, innovation, and future options pertain. The Bell v. Tavistock decision assumes that young people cannot comprehend the impact of a present decision regarding PBT on their reproductive and sexual futures and therefore are not competent to make such decisions.

One problem with this view is the court imposes a narrow of view of “normal” adult experiences like having heterosexual penetrative intercourse, being pregnant, or breastfeeding, and assumes young people cannot make decisions about pursuing or forgoing these potential experiences.

However, a bigger problem of this view is that it treats consenting to PBTs as exceptional in ways that are conceptually unfounded. Young people routinely consent to serious decisions related to their healthcare that impact their future life, and about their future life that impact their healthcare. These include the decision about whether or not to have sex, or bear and raise a child, but also whether or not to undergo chemotherapy which could impact future health and reproductive choices. Other choices less obviously connect to health can nonetheless impact future options, like decisions to drive a car, or compete in a competitive sport prone to serious injury. All of these decisions, like most choices, can limit or expand a person’s future options. PBT is not, in this regard, exceptional.

The court fails to acknowledge that while gender-affirming care might limit certain specific options for a young person’s future, it can open up many more, perhaps most importantly a young person’s current and future mental health. The High Court has not established why decisions about PBT are sacred, and was wrong to rule based on the presumption they are. The spirit of consent is to inform and empower individuals to make choices based on their own needs and circumstances. The High Court’s decision undermines the very concept of meaningful consent.

Authors: Shannon Fyfe and Elizabeth Lanphier

Affiliations:

Fyfe: George Mason University (Philosophy); Antonin Scalia Law School

Lanphier: Cincinnati Children’s Hospital, Ethics Center; University of Cincinnati (Philosophy, Pediatrics, College of Medicine)

Competing interests: None declared

Social media accounts of post author: @sefyfe (Twitter)