Whose Rights Matter for Gender-Affirming Care?
Should medical decisions involving children be up to children, parents, physicians, the state, or some combination thereof? This question has been at the core of recent issues including vaccine mandates, but it is also central to a new slate of bills targeting gender-affirming care for trans youth, which are usually supported by appeals to children’s rights.
For example, the Idaho House recently passed a bill that makes it a felony, punishable by life in prison, to provide gender-affirming medical care to trans youth, to provide permission for a minor to receive that care, or to permit a minor to travel out of state to receive care. The bill has since been blocked in the Idaho Senate, due to concerns about parental rights. Similar laws are being proposed in Tennessee, Alabama, and Iowa.
What is interesting about these bills (as well as Florida’s “Parental Rights in Education” bill) is that they are contested on the basis of a conflict between children’s rights and parents’ rights. In the case of gender-affirming medical care, whose rights matter more?
It seems that the proponents of these bills are right to say that it is the children’s rights that are primarily at stake in these decisions — not the parents’. They are wrong, however, to say that children’s rights support this kind of legislation.
Except for therapy, gender-affirming medical care begins around puberty, when children have basic reasoning and decision-making capacities and start to develop as autonomous agents. These capacities may not yet be fully developed (and young adults may not yet be socially and legally independent), but this fledgling autonomy is sufficiently developed to warrant and even require that these children are part of the medical decision-making process. However, before minimal autonomy is reached, parents and physicians should be very careful about making medical interventions to alter a child’s sexed presentation, especially given the long history of medical abuse of intersex people.
Apart from considerations about autonomy and decision-making ability, the other primary consideration is whether these interventions will help or harm the children who undergo them. Both concerns target children’s rights.
The two questions we should ask are thus: Can children who have reached puberty consent to medical intervention? And do these interventions harm or help children? For those proposing these laws, the answers are that the children cannot give informed consent and that these interventions are, on balance, harmful. But are these assertions true?
The answer to the first question is supported by ideas that children cannot yet know their gender identity and how they would like to present, or that they will transition just because it is cool, or that they will choose transition as an easy out from facing misogyny or mental health problems.
If children cannot yet know their gender identity, then it seems that puberty blockers should be recommended for even more children, as it would allow them to delay the changes their bodies undergo so that they can make informed decisions about how they would like their bodies to develop at a later date.
It also seems unlikely that being trans is cool enough to persuade children to transition on that basis alone. In 2019, 2% of high school students identified as transgender. That is hardly as popular as wearing crocs, and it comes with significant social costs.
The last rationale is usually cited in the case of trans men. Misogyny is an issue that many people assigned female at birth have wrestled with and that has informed both cis and trans folks’ gender identities, but transition is not an escape from oppression — it trades one kind of oppression for another. One might also worry that there’s a subtle misogyny in implying that people assigned female at birth are less capable of making competent decisions about their gender identity than those assigned male at birth.
Even if each of these worries were true, they would tell in favor of more care rather than less. Instead of cutting off options to children and leaving them without a good understanding of gender identity or the medical options for transition, we should be providing children with more options and with better counseling to enable effective joint decision-making. This provides children with greater autonomy than if they are left without any choice, and it allows them to explore for themselves where their feelings are coming from and what they indicate.
It is important to note that not all transgender or gender non-conforming children will choose to undergo medical procedures or the same set of medical procedures. There is a critique to be made here that our current system of medical care often prioritizes certain narratives of medical transition over others and tends to overlook the needs of those who don’t fit into these neat categories, especially non-binary people. But again, this tells in favor not of removing medical care but of improving it. We should be striving to provide adequate information to children in the decision-making process and, as the therapy begins, encourage re-evaluation of medical care and adjust that care in response to the child’s wishes.
Turn now to the second question: Even if children can give at least partial consent, is the harm done by gender-affirming care great enough to override what autonomy they have? To determine the answer to this question, we need to separate out different kinds of gender-affirming care. Though gender-affirming care encompasses a wide range of options, let’s simplify those options into the following categories: talk therapy, puberty blockers, hormonal therapy, and surgical intervention.
While talk therapy and puberty blockers present some risks, the main worries that proponents of these bills cite primarily target hormonal therapy and surgical intervention. The two major harms presented in support of this legislation are a loss of reproductive ability and the difficulties faced by retransitioners (people who transition back to their gender assigned at birth or who transition to a different gender, e.g., trans man to non-binary person). These are non-negligible considerations. But do they capture everything morally salient for decision-making?
There are other harms we should take into account that would result if these bills were to pass: an inability to medically address gender dysphoria (a psychological incongruity between one’s gender identity and presentation, which can result in psychological distress), the disruption of the patient/doctor relationship, the message that these bills send that trans youth are not seen or appreciated, the tendency of these bills to exaggerate inter-family conflicts when one parent supports a child’s gender transition and the other does not, the tendency of these laws to increase the risk that trans youth commit suicide, and the difficult to alter changes that happen after a child’s body naturally starts producing estrogen and testosterone at puberty, in the absence of puberty-blockers.
The question about access to gender-affirming care isn’t simply one about avoiding these harms — it’s also about promoting positive experiences like gender euphoria (joy felt when one’s gender lines up with one’s presentation and social relations with others). But do the worries about loss of reproductive ability and retransition override these other considerations?
With regard to retransition, several studies have indicated that only around 1% of patients regret their transition. The people who regret their transitions matter, and medical care should be tailored to prevent such regrets and address them when they arise. But the existence of very few who regret medical transition should not be used to deny gender-affirming care to others, especially when that gender-affirming care can be life-saving.
Regarding reproductive worries, many trans folks would like to have children of their own. While we are not yet to the point where trans women can bear children or trans men can produce sperm, trans women and men can rely on technologies that freeze their sperm or eggs and that allow them to produce a biologically related child in the future. Unlike surgery, hormone therapy does not necessarily make the patient infertile, though counseling is recommended to ensure that patients understand the reproductive ramifications of certain medical interventions. And the one surgery that is currently accepted for under 18 individuals is “top surgery” or double mastectomy.
These reproductive ramifications should be fully transparent to teens who are deciding what therapies to access, but these considerations alone do not seem to immediately rule out medical transition, given that they may be outweighed by a number of benefits. In addition, reproductive capacity will mean different things for different trans people, as, for example, some trans men may wish to avoid pregnancy at all for reasons of gender dysphoria.
We also tend to think that adults should have reproductive freedom in choosing whether to have a tubal ligation or vasectomy, and the teens who would have access to hormonal therapy would be much closer to adulthood and full autonomy. Given their greater autonomy, it is less worrisome to allow them to make a joint decision with potentially negative long-term ramifications.
On the whole, gender-affirming care appears to be more helpful than harmful and certainly not harmful enough to warrant overriding the autonomy of older children and young adults. Current practices of gender-affirming care rightly provide less risky treatment to younger children and more risky treatment to older teens, which mirrors the growth of autonomy and decision making through young adulthood.
Bills that would deny gender-affirming care are insidious because they take away the rights of trans youth while claiming to protect those same rights. It turns out that if we want to protect children’s rights, we need to fight legislation that would deny access to gender-affirming care.