“How do you have an age-appropriate conversation about loss of orgasm with a child?”
That question was originally raised by a trial judge in the Bell v. Tavistock case in the United Kingdom, which challenged the propriety of medical treatments for children with gender dysphoria. Can a child fully consent to treatment that permanently and irreversibly changes secondary sex characteristics? It’s a question that U.S. federal courts considering the issue have glossed over or ignored, but it’s crucial. Protecting children from life-altering decisions they cannot fully comprehend is a basic function of the state.
Federal district courts in Florida, Indiana, Alabama, and Arkansas have declared that “gender identity is real” and questioned the state’s legitimate interest in restricting the use of puberty blockers, cross-sex hormones, and surgery as treatments for gender dysphoria in children. In each of the federal cases challenging the bans, including a recently filed action challenging Georgia’s SB 140, lead plaintiffs include children between eight and 12 years of age who identify as the opposite sex. The plaintiffs (supported by their parents) want to prevent natal puberty by taking puberty-blocking medications or are already taking puberty blockers and want to begin taking hormones that will cause permanent changes in secondary sex characteristics. This path of treatment will lead to infertility, sterilization, and—if carried out to its end goal—surgeries to remove undesired sexual organs and replace them with facsimiles associated with the desired sex. At a minimum, a lifetime of hormone treatments is in store for the child.
Citing the World Professional Association for Transgender Health and other medical associations, federal courts acknowledge and approve of these plans. According to WPATH, children who want to identify as the opposite sex should start puberty blockers as soon as they reach the “Tanner 2” stage, which court findings indicate can begin as early as age eight. A child who follows the protocol will likely be infertile and have significant sexual dysfunction as an adult, even without surgery. In the Arkansas case, federal judge James Moody Jr. lauded as appropriate WPATH guidelines requiring children to be fully informed of these consequences, then concluded that having medical personnel provide that information is sufficient. “In general, adolescents are able to understand the risks, benefits, and alternatives to a medical intervention,” he ruled.
Judge Moody’s finding on the ability of “adolescents” to give informed consent is a non sequitur. It is true that some adolescents are equipped to make significant life decisions, especially as they close in on adulthood, but many of the children in these cases are not adolescents; they are children as young as eight and too immature to consent to any medical treatment, much less to life-changing ones. State legislatures and courts deem some of them too young to be incarcerated for a criminal offense, even in a juvenile facility. They have little or no concept of how important sexual and reproductive function is to adults.
In banning the death penalty for offenders under 18, the Supreme Court, in Roper v. Simmons (2005), rightly noted that juveniles are highly susceptible to peer pressure, that their personalities are not fixed, and that they are still struggling to form their identities. And the Court was speaking here of older teens. How much more susceptible to pressure and unsure of their identities are prepubescent children?
The pathos of children such as these young plaintiffs in these cases is illustrated by one of many media portrayals of them. Atlanta’s NPR station recently profiled “D,” who was born male and who just finished seventh grade. “D” recently started on puberty blockers to prevent male puberty, telling the interviewer “I felt like a girl” since a young age. Later, the child “started doing some research and learned about medical treatments that could help affirm her gender identity.”
“It kind of opened my eyes a little, like, ‘Oh, this is an option, and I really think it’s for me,” D. says, sitting on a picnic table in a leafy neighborhood park with her mom, Amy.
“I was like, ‘Instead of being a dad, I could be a mom.’ And that was really happy to me.”
Sadly, D’s continuing along this path will preclude the possibility of any biological children. But even if children like “D” can’t understand the consequences of their decisions, the federal judges in these cases see no problem: parental consent is enough, and parents have the right to make medical decisions for their children.
This position ignores both the law and reality. Parental consent often isn’t enough to deprive a child of fundamental rights permanently, especially when those rights can’t be fully exercised until adulthood. State law and court oversight frequently limit parental decisions to sterilize or indefinitely institutionalize a child, to have the child undergo clitoral removal, and to allow the child to marry, have sex, watch pornography, drink alcohol, drive a car, or work. Many state legislatures have outright prohibited parents from making such decisions for their children or have created statutory provisions to ensure that children’s fundamental rights are not abused, even by a misguided or well-intentioned parent. As the Supreme Court stated in Prince v. Massachusetts (1944), “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.”
The Sixth Circuit Court of Appeals recognized this state responsibility. In putting a hold on a preliminary injunction that would have blocked the Tennessee ban, the court found that there is no fundamental right of parents to expose a child to new medical or experimental drug treatments such as the “off-label” use of puberty blockers and cross-sex hormones. Courts must be careful about second-guessing the state’s decisions in protecting children, the Sixth Circuit found: “The State plainly has authority, in truth a responsibility, to look after the health and safety of its children. In this area of unfolding medical and policy debate, a State has more rather than fewer options. Tennessee could rationally take the side of caution before permitting irreversible medical treatments of its children.”
Supreme Court jurisprudence in Wisconsin v. Yoder (1972) and Pierce v. Society of Sisters (1925) speaks of the right and the high duty of parents to prepare the child for life, while holding open the possibility of state intervention if “it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.”
How, then, does “gender-affirming care” put a child in jeopardy? By placing him or her on a path of no return, parents and doctors endanger a child’s rights to self-determination and autonomy. He or she will likely never be able to reproduce or even to reach sexual climax. He or she will be forever dependent on hormones prescribed by doctors, undergo ongoing surgeries further to "feminize” or “masculinize” appearance, and suffer the pain, dysfunction, and follow-up operations that frequently accompany surgeries to create mock penises or vaginas. Perhaps worst of all, the child will be trapped in an identity that was formed and frozen in childhood—before puberty, before sexual awakening, and before he or she has had the opportunity to go through adolescence and put that difficult time of social, physical, and emotional change behind.
Legal philosopher Joel Feinberg divided children’s rights into various categories, one of which he called “the right to an open future.” Parents have the obligation to protect and preserve a child’s options so that the future adult can, upon reaching maturity, make fundamental decisions on his or her own. This protects the child “against having important life choices determined by others before she has the ability to make them for herself.” By preserving the future adult’s ability to make determinations about sexual and gender identity at an appropriate age, state bans on changing a child’s secondary sex characteristics promote just such an open future for children.