Can Children Consent to be Sterilized?

The question gender doctors don't want to answer

During the twentieth century there was a shameful history, in Canada and elsewhere, of compelled or coerced sterilization of people, mainly women and girls, deemed mentally unfit for parenthood. Today that practice continues in gender clinics where teenagers with mental health problems are started on a course of treatment, called affirming care, which will leave them sterile. While these children usually assent to this treatment, there is real doubt as to whether they give genuinely informed consent.

Does Gender Affirming Care Sterilize?

The gender affirming process has a series of stages It begins with social transition and proceeds through puberty blockers, cross sex hormones and surgery. Surgery to remove genitals will result in sterility, but it is not common on patients under 18. An analysis of American insurance claims found 56 cases of genital surgery on patients from ages 13 to 17 from 2019 to 2021. This figure has been the subject of debate on Twitter. Some commentators have pointed out that it is less than the risk of being struck by lightening while others note that it exceeds the number of children killed in school shootings. Surgeries are more common after the age of 18. From the point of view of cognitive development, there is very little difference between a 17 year old and a 19 year old.

The more controversial question is whether puberty blockers, which can be started as early as age 9, will result in sterility. Critics of medical transition have long argued that puberty suppression, which is almost invariably followed by cross sex hormones, will result in sterility. Gender clinicians generally reassure parents that puberty blockers will not necessarily result in sterility. They refer to research on cases of precocious puberty which have found that puberty will resume once the drugs have stopped. However, in treatment or precocious puberty the drugs are stopped at the beginning of the normal window for puberty. This is when they are started in gender affirming care. There is no reliable research on the effects of puberty blockers during the normal window for puberty on fertility. In private sessions, they do acknowledge that sterility is a serious risk.

Males do not begin to produce viable sperm until Tanner Stage 3. Puberty suppression can begin as early as Tanner Stage 2. A trans identified male whose puberty is blocked at Tanner Stage 3 and then proceeds to estrogen therapy will never be fertile. This also means that fertility preservation is not an option, since it is generally necessary to wait until at least Tanner Stage 4 to obtain viable sperm. By this time the physical changes, such as a deeper voice, which puberty suppression is intended to prevent will be well underway.

The situation for females is less clear. There are well known cases of trans-men giving birth after a period on testosterone. There are also studies which have found that girls treated with puberty blockers for precocious puberty will have normal fertility. However, there are no long-term studies on the combined effects of puberty suppression and testosterone on fertility.

Gender affirming care is cumulative. Each step makes the next more likely. Studies have consistently found that over 90 percent of children who are started on puberty blockers will proceed to cross sex hormones. This means that the decision to start a child on puberty blockers is effectively a decision that the child will be sterilized. While it is possible (barely) to argue that a 15 or 16 year old is a mature minor with capacity to make this type of choice, it is much harder to make that case when a child is 10 or 11.

Gender clinics do offer fertility counselling and options for fertility preservation prior to starting hormone treatments but the uptake has been low. Fertility preservation procedures are invasive, expensive and uncertain in their outcomes. It is safe to assume that most children who are given puberty blockers for gender dysphoria will never be able to have biological children.

Sterilization and the Law

In 1986 the Supreme Court of Canada decided the case of E. (Mrs.) v. Eve, which was an application by the mother and legal guardian of a 24 year old woman who was described, in the terminology of the day as mildly to moderately retarded, to approve her daughter’s sterilization. There was no medical necessity for the sterilization and its purpose was solely contraceptive. The court found that a legal guardian had no power to approve a sterilization in these circumstances. Laforest, J. stated:

The importance of maintaining the physical integrity of a human being ranks high in our scale of values, particularly as it affects the privilege of giving life. I cannot agree that a court can deprive a woman of that privilege for purely social or other non‑therapeutic purposes without her consent. [Par. 92]

The decision has been widely criticized. On one hand, it is argued that an absolute ban on sterilization for contraceptive purposes disregards cases where the procedure might be a person’s best interests.  Other commentators are concerned that the courts have unduly expanded the definition of medical necessity to cover what are primarily social concerns.

 Eugenics in Canada

The court in the Eve case was strongly influenced by the history of eugenic sterilization in Canada. Eugenics, or the belief that the human race could be improved through selective breeding, was seen as a social reform movement during first part of the twentieth century. Like transgender ideology today, support for eugenics in Canada was non-partisan. Early supporters of the eugenics movement included pioneer feminists Nellie McClung and Emily Murphy and social-democratic icon Tommy Douglas. (Douglas abandoned his support for eugenics by the time he became premier of Saskatchewan.)

The sterilization of the “feeble minded” was promoted as a humanitarian measure to reduce poverty and crime. In 1928 the Alberta legislature passed the Sexual Sterilization Act which established a Eugenics Board with the power of authorize the sterilization of individuals deemed to be mentally defective. Over 2,800 people were sterilized under this law before it was repealed in 1972. British Columbia adopted a compulsory sterilization law in 1933. It was narrower in scope than the B.C. law but over 400 people were sterilized before the law was repealed in 1973. Other provinces did not adopt compulsory sexual sterilization laws but coercing women to consent to tubal ligation was a common practice, particularly in the case of indigenous women.

The British Columbia legislation was supported by both the Liberal and Conservative parties. The Alberta law was introduced by the agrarian populist United Farmers of Alberta party and extended under the Social Credit government of “Bible Bill Aberhart. Opposition came mainly from the Catholic Church.

What is Informed Consent?

The gender clinics do not practice overt legal coercion on their patients. They obtain consent, but there is serious doubt as to whether it is always informed consent. As part of the process of obtaining informed consent, a doctor must:

• Confirm that the patient has the capacity to consent;

• Provide the patient with a diagnosis, including a differential diagnosis if there is uncertainty;

• Describe the proposed treatment and its prospects of success;

• Inform the patient of any material risks of the treatment;

• Inform the patient of any alternative treatments and their risks and benefits; and

• Confirm that the patient is not subject to coercion.

Capacity

The first requirement of informed consent is that the patient have the mental capacity to consent. Where the patient lacks the necessary mental capacity, as is usually the case with children, consent must be obtained from a parent or guardian. However, the common law also recognizes that where a minor has sufficient understanding, the minor may consent to medical treatment without involvement of their parents or even against the wishes of their parents. This is referred to in England and Wales as the Gillick test.

In Canada, the Gillick test has been codified in various provincial statutes. Quebec has set 14 as the minimum age at which a minor may consent to treatment. In other provinces there is no fixed age of consent and the question of whether a minor has capacity is a question of fact.

The leading Canadian case that deals with transition of children is the British Columbia court of Appeal decision of A.B. v. C.D. This was an action by a father who was attempting to prevent his 15 year old trans-identified daughter from being started on hormone therapy. The court ruled than under Section 17 of the Infant’s Act of British Columbia the doctors had the power to provide health care to an infant (ie. anyone under 18) without the consent of a parent or guardian provided that the doctor “has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care” and “has made reasonable efforts to determine and has concluded that the health care is in the infant's best interests.” The court declined to interfere with the exercise of the doctor’s judgment on whether the minor had the capacity to consent.

In England the case of Bell v. Tavistock the Divisional Court found that it was highly unlikely that a child under 13 had the capacity to consent to puberty blockers and very doubtful that a child of 14 or 15 could. It therefore issued a declaration requiring doctors to obtain court approval for treatment in these cases. The Court of Appeal overturned the decision. However, this was not an endorsement of the gender affirming care model. The appeal judges simply ruled that this was not a matter that could be decided on a judicial review based on affidavit evidence. Doctors were entitled to exercise their own judgment as to competence, but their decisions could be challenged in an action for professional negligence or a professional disciplinary hearing which could hear detailed evidence on a specific case.

Professional negligence actions against gender clinics are starting around the world , but it will take a few years for these cases to reach trial.

Cognitive Capacity

Any discussion on informed consent has to take into account the cognitive development of children. There are studies on capacity of children to consent to medical treatment which found that 14 year old adolescent have a cognitive and intellectual capacity which renders them comparable to adults in terms of factual understanding and reasoning process. 

However, informed consent to gender affirming care is not simply a matter of intellectual understanding. Cross sex hormones and surgeries have lifelong consequences and many of the adverse effects will not be felt for many years. Consent in gender medicine is a complex process which needs to go well beyond simply checking of a list of side effects if it is to be truly informed.

Decision making about matters with long term consequences requires the executive human brain functions such as impulse control, the ability to delay gratification, risk assessment, and planning for the future. These functions are regulated by the pre-frontal cortex which is not fully developed until around the age of 25. It is not surprising that many detransitioners begin to experience regret in their early twenties.

In addition to lacking cognitive maturity, minors lack the social experience for responsible long-term decision making. Children grow up in groups segregated by age and shielded from adult concerns. In grade school, having a friend more than one or two years older is unusual. In college, young adults begin to socialize with mature students and some faculty members and start to gain some insight into the adult world. Then as they enter the work force they will begin to mix with a wide range of ages and start to understand adult problems and relationships. A 14 or 15 year old does not have the frame of reference to understand things like how sterility could limit one’s dating pool, the isolation childless individuals experience as their friends begin to start families and the difficulties of adoption.

Research on the ability of teens to discuss fertility concerns is not reassuring. A review of studies fertility preservation in cancer treatments found that teens were usually uncomfortable discussing this issue and tended to follow the lead of their parents.

Disinformation and Social Contagion

The issue of cognitive capacity is further complicated by the proliferation of information and misinformation on the internet. A common meme during the Covid 19 pandemic was a tombstone with the epitaph, “I did my own research.” Clinicians are rightly skeptical about the ability of adults to sift through complex and contradictory sources of information on vaccines and masks, but they nod approvingly when teenagers claim that they have done their own research on puberty blockers or cross sex hormones.

The quality of information that teens receive about gender affirming treatments on social media is difficult to assess but there are anecdotal accounts which suggest that much of it is questionable. There have been comments on Twitter about female detransitioners who believed that their breasts would grow back after a mastectomy once their estrogen levels returned to normal. Therapist Stella O’Malley has described a conversation with a young patient who said that she was not worried about the adverse effects of testosterone on a female body because she was actually male. To make matters worse, the curriculum in many schools leaves children misinformed about the basic biology of sex.

A Different Model of Care

The major difficulty with the application of the mature minor doctrine in gender medicine is that the case law assumes that the minor is making decisions under the guidance of a doctor who is following the conventional medical model with clear diagnostic criteria and treatment goals. Practice in gender clinics is very different.

In the case of a disease like cancer, the diagnosis is usually confirmed by multiple objective tests including diagnostic imaging, laboratory tests and tissue biopsies. There are also objective measures of the effectiveness of treatments, such as shrinkage of the tumour. A doctor will recommend a treatment that is likely to cause sterility or other serious side effects only after making a firm diagnosis and concluding that the benefit of the treatment outweighs the risks.

In gender medicine, there is no known biological marker for transgender identity. The diagnosis of gender dysphoria under the DSM-5 depends entirely on self-reported symptoms which are largely tied to conformity to social stereotypes of male and female.

Furthermore, while a DSM-5 diagnosis may still be required in some places for insurance purposes, the WPATH SOC8 recommends relying in the ICD-11 diagnosis of Gender Incongruence. The definition of gender incongruence of childhood is similar to the DSM-5 diagnosis of gender dysphoria, but does not require the presence of distress. For older patients, the definition reads:

Gender incongruence of adolescence and adulthood is characterized by a marked and persistent incongruence between an individual´s experienced gender and the assigned sex, which often leads to a desire to ‘transition’, in order to live and be accepted as a person of the experienced gender, through hormonal treatment, surgery or other health care services to make the individual´s body align, as much as desired and to the extent possible, with the experienced gender. The diagnosis cannot be assigned prior the onset of puberty. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis.

The concept of ‘experienced gender’ is entirely subjective, with no possible test other than self-declaration. In other words, if a teenagers claim to have a transgender identity and wants medical transition badly enough, they should have it.

It is also difficult for a doctor to inform a patient of the prospects of success of a gender affirming treatment because there are no clear criteria for measuring success. The goal of transforming a body into one of the opposite sex is unobtainable but success might be measured in how close an approximation the treatment achieves.

However, patients seek to transform their bodies in the hope of relieving their mental distress. A good cosmetic result from a treatment is pointless if the patient still feels miserable and distressed by their body. The evidence that gender transition helps to improve mental health is low quality. Ultimately, the conventional measures of success are irrelevant to the new model of gender medicine where the “goals have shifted from reducing suffering to achieving personal ‘embodiment goals.’”

Informed consent in gender medicine therefore raises different issues from the conventional medical model. In conventional treatment, the minor’s decision making is being guided by a doctor who has made a diagnosis and determined that a treatment is in the patient’s best interest. In gender medicine, it is necessary to ask whether a minor should be entitled to proceed with risky and irreversible treatments based on a sense of personal identity which is unfalsifiable but may prove to be transitory.

Differential Diagnoses

There is a high degree of comorbidity between gender related distress and other psychiatric conditions. Standards of practice such as the WPATH standards of care recommend that any comorbid mental health conditions be diagnosed and brought under control before medical transition begins, but this advice is frequently ignored. The failure to make a proper differential diagnosis could affect the informed consent process in two ways.

First, the presence of comorbid conditions may affect a patient’s capacity to consent. Various mental health conditions can affect a patient’s ability to understand explanations or exercise sound judgment. While a mental health condition does not, by itself, negate capacity to consent, specific conditions, such as autism, may require a special approach to ensure that patients really do understand the nature of the treatment.

Second, if a condition is not properly diagnosed it cannot be properly treated. One of the most frequent complaints of detransitioners is that they consented to medical transition in the mistaken belief that gender dysphoria was at the root of all of their mental health problems.

Alternative Treatments

Another requirement of informed consent is that the doctor informs the patient of any alternatives to the proposed treatment, including no treatment, and their risks. One of the consistent complaints of detransitioners is that gender clinics did not offer them any alternatives to medical transition. They believe, with the benefit of hindsight, that with proper psychotherapy they would have been able to deal with their mental distress without compromising their physical health. This argument is likely to play a major role in the many detransitioner law suits that are now starting.

However, the scope of this duty to inform is limited. Doctors are not required to inform the patient of every available treatment, particularly those that the consensus in the medical profession considered “fringe” and unreliable. Unfortunately, this is how many doctors practising affirming care regard exploratory psychotherapy.  

At present, it is probably still possible for gender affirming clinicians to shelter behind the numerous statements by medical bodies endorsing the gender affirming approach and rejecting alternatives as “conversion therapy.” However, as the number of countries which endorse psychotherapy as the first line of treatment for gender dysphoria increases, this position will be harder to maintain.

Coercion

Informed consent must be voluntary; consent obtain through coercion is not legally valid. Doctors are expected to be alert for the possibility that a patient is being coerced and act accordingly. In the affirming care process, the risk of coercion is present at every stage. With younger children, where the parents are the prime decision makers, there is often overt pressure on the parents from teachers, community members or health care providers, who may threaten to involve the child protection authorities if the parents oppose transition.

When children reach the age when their views are given more weight, coercion may come from the parents. The decision to transition a child is difficult and often leads to family conflict. The parents may have lost friends and estranged relatives to support their child’s new identity. Once a family has endured this trauma for a child’s sake, there is a strong probability that there will be spoken or unspoken pressure on the child not to back out.

Coercion may also come from clinics threatening to withdraw support. Gender clinics often view their role as supporting medical transition and are not interested in providing long term psychological support. Ritchie Herron, a detransitioner from England, said that he felt pressured into going ahead with surgery because the clinic he attended said that it would discharge him if he did not.

Since many therapists are not willing to deal with gender distress except through referral to a gender clinic, patients and their families may fear being left without any support at all if they do not start on the medical path.

Finally at every stage of the process, there is implied coercion through the exploitation of the fear of suicide. Sometimes this is overt, where parents are explicitly asked whether they want a live son or a dead daughter (or vice versa). More often, it is concealed behind the claims that gender affirming care is ‘life-saving.”

The Reckoning

While gender clinics have been experimenting with puberty suppression since the 1990s, large scale medical transition of teenagers did not begin to take off until around 2014. A teenager who was started on hormonal therapy in 2014 at age 16 would only be 25 in 2023. The average age of first childbearing in the industrialized world is now between 28 and 30. The majority of young people who have been sterilized in the name of gender affirming care have not yet reached the age where they will really feel the social and emotional effect of what has been done to them. When they do, the question in the title of this article is going to be asked many times.

Meanwhile, gender clinics already know the answer. This short extract from a presentation to the 2022 WPATH conference is chilling. The doctor admits that his 14 and 15 year old patients have no understanding of what it means to be sterilized and that he is meeting a lot of twenty somethings who deeply regret their inability to have children. But he doesn’t show any signs of wanting to change because he just wants his patients to be happy in the moment.