How informed consent laws can protect kids with gender dysphoria

Photo by Tim Mossholder on Unsplash

Minor children seeking gender-affirming care have exponentially increased in recent years. The number of referrals to the Gender Identity Development Center Service at the Tavistock and Portman NHS Foundation Trust skyrocketed from 250 in 2011-2012 to over 5,000 in 2021-2022. Children as young as preschool are being encouraged to question whether their gender identity matches their sex. By middle school, kids have the option to “medically transition”—which can include puberty-blocking drugs, cross-sex hormones, and surgical interventions such as voice surgeries, genital reconstruction surgeries, and mastectomies.  Just as they would for any other medical concern, parents turn to licensed medical professionals to seek an honest evaluation of their child. But often, instead of receiving a fair and balanced conversation about all possible treatment options, under the “gender-affirming care model” that is now required in the United States, parents are asked: “would you rather have a dead daughter or an alive son?” Unsurprisingly, parents given this choice very often consent to whatever the provider proposes. 

Fast forward a few years, and the child that was hastily sent through the gender-affirming care model often realizes that their medical transition has brought on serious, irreversible consequences to their health: hair loss, permanent voice change, nipple discharge, blood clots, heart problems, decreased libido, bone loss, erectile dysfunction, inability to orgasm, and even infertility. Stopping or reversing medical transition comes with its own issues, both physically and psychologically. Clinicians often don’t have sufficient information to guide the patient through detransition, and those that do might be unwilling to help for fear that assisting a detransitioner risks discrediting gender transition surgery and furthering the stigmatization of transgender people. For this same reason, the transgender community that was so accepting of the child during transition generally rejects them once they’ve started down the path to detransition. 

Where can a detransitioner find recourse for the life-changing harm they experienced? The individual’s decision to transition is not made in a vacuum, especially as a minor. There are numerous clinicians involved in the process, from the diagnosing psychologist or psychiatrist to endocrinologists, plastic surgeons, gynecologists, dermatologists, urologists, as well as social supports like school counselors and social workers. With an all-encompassing medical team, who is held accountable for making sure the patient is receiving appropriate care? In any other major medical decision, a doctor doesn’t allow the patient to take full control of the treatment plan. Instead, the doctor and patient share in the decision-making process to consider treatment options that are appropriate. This is known as “informed consent.” Failure to obtain informed consent is one form of medical negligence that may expose a provider to civil legal liability, including those that provide gender-affirming care.

In general, the legal doctrine of informed consent requires that “the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and prognosis.” The doctrine is based upon the principle, as it was articulated in Schloendorff v. Society of New York Hospital, that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” and that for someone to be able to truly consent to a procedure, there must be “informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” But because of the imbalance of knowledge between patient and provider, where a patient has little to no understanding of medicine, the doctor must assist the patient in making an intelligent decision by divulging a reasonable amount of information. 

While the well-established principle of informed consent should apply universally in the medical profession, gender advocates have replaced and repurposed the meaning of the doctrine entirely. In gender-affirming care, the term “informed consent” has become a new model of care where the “clinicians seeks to better acknowledge and support patients’ right of, and their capability for, personal autonomy in choosing care options without the requirement of external evaluations or therapy by mental health professionals.”  Instead of encouraging the patient to seek more information—to ask questions of their doctors, seek a second opinion, and explore alternative routes of treatment—patients only consider the information in a vacuum of their own learned experience. The "gender-affirming informed consent" model encourages patients to affirm what they think they already know and assumes a "one-size fits all" treatment regimen.

This gender-affirming version of informed consent is contrary to traditional standards of medical practice and exposes medical practitioners to legal liability. For example, a provider could be vulnerable to litigation if they fail to inform the patient of all material risks associated with gender-affirming treatment. A material risk is either (depending on the jurisdiction) all the risks that a reasonable patient would want to know about a treatment, or all that a reasonable provider would generally disclose. This would include a provider’s failure to inform their patients that gender-affirming treatment can often lead to infertility. 

A provider that fails to inform the patient of reasonable alternative treatment options may also fail to meet the standard of care, especially where the alternative treatment may provide greater benefit than the treatment being pursued. In the gender-affirming care context, the proposed benefit of medical transition is increased psychological function and extinguishment of suicidal ideation. However, there is a lack of evidence-based studies to support that medical transition improves psychological function. Instead, the studies reveal no consistency or replicability in results supporting improved psychological functioning in patients on  gender-affirming treatments like puberty blockers. In addition, although advocates stress that gender questioning minors are at extreme and unique risk of suicide, data instead suggests that the risk of suicide in this cohort is similar to that of other minors experiencing mental health issues. There is no compelling evidence that medical transition reduces the risk of completed suicide—indeed, a gender-questioning minor’s risk of suicide remains elevated post-medical transition. Where the benefit of medical intervention is not apparent, providing alternative treatments for minors, such as exploratory therapy, may be more effective at reducing the child’s suicidal ideation. Some providers report success in explorative therapy, which aims to explore the issues intertwined with a child’s gender dysphoria and treat their comorbidities such as ASD, ADHD, depression, anxiety, suicidality, or eating disorders. 

Another way in which providers of gender-affirming care can be legally vulnerable is if they coerce informed consent from the patient or the minor patient’s parents while they were under duress. A common example of this was mentioned previously: a doctor telling parents that they have a choice between fully and uncritically accepting the gender-affirming care plan, or condemning their child to eventual death by suicide. In this situation, the parents cannot be said to make this choice voluntarily of their own free will, since they are effectively being blackmailed. 

In the rapidly-evolving field of transgender healthcare, it is critical that providers take the necessary precautions to protect vulnerable patients. Tragically, this is not the norm today. While many providers of gender-affirming care believe they are working toward a more socially just society, they may, in fact, be committing a medical atrocity. For the sake of our children, there must be a course correction. 

The most promising way to bring about this course correction is a greater emphasis on informed consent: how many gender-affirming care providers are not adhering to the traditionally accepted definition of informed consent, how they could be vulnerable to litigation, and how they can update their approach to transgender medical care so that patients are better protected from harm.