Book review: Consent for Medical Treatment of Trans Youth

What do we know about trans identity other than how medicalised and politicised it has become? Steph Jowett seeks to debunk the myth that the law is fully conversant with the issues affecting trans youth. As the book demonstrates, even reliance on the prescient nature of medical knowledge does not guarantee that the current legal framework is sufficiently equipped to protect the rights of individuals within this group.

Jowett establishes her position at the outset as a supporter of medical treatment for trans youth, describing legal obstacles to medical treatment as contributing to the denial of trans identity. In chapter two of the book, she takes us through the known research in this area and notes that there is a lack of longitudinal research studies that could provide consensus on the current debate about trans rights and whether those rights should be curtailed in any way. Although the book provides us with a useful navigation through the available data and research studies, no firm conclusions can be drawn about the long-term benefits of medical treatment. When reading this chapter, one begins to wonder whether it may be easier to reflect on what we do not know about the experiences and rights of trans youth or to assess what we cannot say with any certainty. For example:

1. The causes of gender variance (adopting a different gender expression or behaviour from birth/natal sex) are not fully known. Theories relating to maternal influence, parental behaviour or characteristics, psychiatric disorders, genetic makeup, and hormonal changes are all problematic to espouse. Gender variance remains complex and, so far, remains without a conclusive scientific or social determinant.

2. Postoperative outcomes for those receiving gender-affirming hormones, puberty suppressors or gender-affirming surgery are not fully known. Infertility is a known possible side effect of medical treatment for trans youth. There are presently limited and insufficient longitudinal studies that can provide irrefutable data in this area. Studies by researchers such as Annelou LC de Vries et al ¹ followed up with participants for only a year. Although another study in 2020 ² followed up with participants for up to 2 years, this is arguably still an insufficient period to be able to draw any concrete conclusions about the impact of medical treatment on trans youth.

3. The true outcomes of ‘detransitioning’ back to birth assigned gender among trans individuals are not fully known. The evidence remains anecdotal. Impacts on health and wellbeing are known to exist where medical treatment is refused or denied, but equally health and wellbeing are known to be affected after treatment.

4. The extent to which puberty blockers remain reversible. Puberty blockers (used to delay unwanted physical changes to the body brought on by puberty) are advertised as reversible, but medical literature suggests this may not always be the case.

5. The true number of trans youth in the general population beyond anecdotal evidence is not known.

6. We do not know how to predict whether a child will remain aligned to their chosen gender after puberty and into adulthood and, therefore, whether treatment is appropriate.

What we do know is that the data are sparse because they rely on trans people self-reporting. This means it is not possible to assess the impact of the current law on all trans individuals, and the book can only provide us with a partial picture. It is notable that the UK has only been able to provide its first reliable official statistics relating to gender identity in the UK through the 2021 census despite the census being in operation since 1801. ³ The March 2021 census ⁴ figures show that there were 262,000 (representing 0.5% of the population) people in England and Wales living with an assumed gender identity that is different to the gender recorded on their birth certificate. There were an equal number of responses identifying as a trans male as there were for those identifying as a trans female (48,000). Also a further 30,000 individuals identified as nonbinary.

In England and Wales, National Health Service (NHS) referrals for counselling and treatment are made to organisations within the Gender Identity Development Service (GIDS). Puberty and cross-sex hormones are the most popular treatment for children. GIDS follows international guidelines such as the World Professional Association for Transgender Health Standards of Care and internal guidelines such as Endocrine Society guidelines and the National Institute for Health and Care Excellence (‘NICE’) guidelines.

The classification of gender dysphoria as both a physical and mental medical condition under the American Psychiatric Association’s Diagnostic and Statistical Manual V often informs the tight judicial approach to regulation. Jowett provides a detailed account of medical classification of gender dysphoria in chapter three and notes how the international guidelines vary. Chapter four contains an account of the law in Australia in relation to the medical treatment of children and trans youth, and chapter five contains a summary of the current legal position in England and Wales. The book is informative and easy to read with short chapters and subsections.

What is clear is that the law takes a cautionary approach to overriding parental responsibility in this area of law and giving children wholesale power to consent to gender-affirming medical treatment. Consider the law in Australia. Following the 2017 case of Re: Kelvin ⁵ , families do not need to go to a family court to obtain permission for medical treatment for trans youth. However, Re Imogen ⁶ has emphasised both parents must consent to such medical treatment for a child. Australia (except for South Australia) does not bestow special status on children aged 16 and 17 years when it comes to medical treatment, including gender-affirming treatment. All children must prove they are Gillick competent (satisfying a test of ‘sufficient understanding and intelligence’) to provide consent to treatment, together with their parents. This is in stark contrast to England and Wales where the Family Law Reform Act 1969 allows children aged 16 and 17 years to consent to medical treatment without parental consent (although this Act does not apply to the withdrawal of treatment). The decision in Re Imogen ⁷ , while in line with the English decision of AB v CD and Ors ⁸ , is at odds with the subsequent English Court of Appeal decision of Bell and Another v Tavistock and Portman NHS Foundation Trust and Ors ⁹ that recognises the right of Gillick-competent minors to consent to treatment in the absence of parental authorisation. This is also in line with the treatment of consent for other forms of medical treatment for children in both jurisdictions.

It is arguable that in many ways, Australia is more progressive in its protection of trans youth by the medical community because it has adopted the 2021 Australian Guidelines on treatment that allows chest reconstruction surgery on children. This was the first guidance to support the gender-affirming model for trans youth, recognising their rights to receive support for the expression of their gender identity through treatment. However, Jowett argues in chapter seven and eight that this does not go far enough and that Australia should adopt the model of special status for the adolescent child (aged 16 and 17 years) similar to the Family Law Act 1969 in England and Wales.

However, such a ‘legal transplant’ between jurisdictions does require consideration of the different social and political environments in both jurisdictions that arguably inform the different approaches to regulation. For example, a crucial jurisdictional distinction is that Australia permits surgical treatment for trans youth (those younger than 18 years), whereas in England, only puberty blocker and cross-sex hormone treatment is available to trans youth, and surgery is only available when they have reached 18 years of age. Therefore, perhaps the social landscape operating in England and Wales is different from that in Australia. Jowett has not written a sociolegal account of the law’s treatment of trans youth rights to medical treatment, but there are deep social and political issues that the legislature and subsequently the courts cannot ignore. Trans identity, like surrogacy, and assisted dying (and previously gay marriage ¹⁰ ) are contentious issues.

Jowett’s book does not examine these wider social issues, rather it focuses on the extent to which the law concerning consent to medical treatment for trans youth aligns with consent to medical treatment generally in the jurisdictions of Australia and England and Wales. There is a clear case for the law to answer in this respect for both jurisdictions. However, the law does not operate in a vacuum and to ignore the social and political issues surrounding gender dysphoria and gender identity is to only see one part of the legal conundrum (although Jowett does concede that the law must operate in a haphazard landscape).

Regulation of personal autonomy is seen elsewhere in medical law, for example, in the suicide versus assisted dying debate. The courts have been prepared to step in to protect the best interests of the child when a child wishes to consent, and has the capacity to consent, by opposing consent that would lead to medical steps that might be thought to impact the child’s future health or life. ¹¹ While terminally ill patients can take control of the decision to end their lives (especially adult patients), the law does not yet recognise their right to have assistance in taking this step. There is no doubt that the law moves with the social mood and acts as a barometer for changes to social values. It was, therefore, a missed opportunity to take a sociolegal examination of some of the drivers behind restrictions in regulation around consent for trans youth.

To an extent, the law in both jurisdictions recognises that gender is socially constructed and is no longer a legal concept. However, it has become a medical one. To this extent, there is legal deference (as with many areas of medical law) to the medical establishment. The medicalisation of gender presents ethical challenges reminiscent of the law’s responses to the medicalisation of parentage from assisted reproduction: Should regulation of private life be ‘soft’, ‘hard’, or completely absent?

An example of this conundrum can be seen in the recent political landscape that postdates the publication of the book but is an illustration of the political and social whirlwind in which trans rights seek to thrive. The law in England and Wales offers some protection of those rights, through the Gender Recognition Act 2004. However, part of the difficulty with the 2004 Act is that legal recognition of the change of an individual’s gender requires medical diagnosis which many regard to be an intrusive invasion of privacy. ¹² Reform to make the process of obtaining a gender-recognition certificate easier, one might surmise, would be a perfectly reasonable amendment to the law. However, as can be seen by the political furies that followed Scotland’s introduction of a Bill to do just that, gender reassignment has gone beyond medicalisation to politicisation.

The Gender Recognition (Reform) Scotland Bill was an attempt to align the law with human rights legislation and UN conventions to remove the requirement for a medical diagnosis and replace it with a simple declaration that would attract criminal penalty for perjury if false information was provided. ¹³ Under the Scottish Bill, adults (aged 18 years and above) would be able to simply declare that they had been living in their assumed gender for a period of 3 months. In the case of 16- and 17-year-olds, this period would be extended to 6 months. The Gender Recognition (Reform) Scotland Bill was passed in December 2022 by the Scottish Parliament (using its devolved powers) but was blocked by the UK Parliament before it could receive Royal Assent. The UK government announced on 16 January 2023 that they would be challenging the new Act passed by the Scottish Parliament. Nicola Sturgeon responded on social media by labelling it as a ‘full frontal attack’ and that trans people should not be used as a political weapon. ¹⁴

As the Scottish Secretary Alistair Jack noted the passing of the Bill would have ‘an adverse effect on the Great Britain-wide equalities legislation’. ¹⁵ At the same time, this vetoing of Scottish legislation by the English parliament made history by becoming the first instance in which section 35 of the Scotland Act 1998, which devolved powers to Scotland, was used to stop Scotland exercising those same powers. Sex and gender reassignment are both protected characteristics under the Equality Act 2010 (this Act also applies to Scotland). The debate became one centering on the question, when these protected characteristics come into conflict, which characteristic should prevail?

Another example of the political furies that enter the debate is the recent media attention on whether the extension of trans rights encroaches on single-sex spaces, and whether this is still protected under the Equality Act 2010. The 2010 Act does protect single-sex spaces and services for women ¹⁶ , but this interpretation of the Act continues to be challenged, and the UK government has used the supposed conflict with the Equality Act as a reason to veto further protections for trans individuals. The most recent controversy about safe spaces for women was highlighted by media reports ¹⁷ of Isla Bryson, a trans female who had committed offences of violence against women before transitioning. She was then placed in a Scottish all-female prison in Scotland. This led to proposals for changes to prison guidelines on placing trans female prisoners with other female prisoners if they had a history of violence or sex crimes.

It is, therefore, difficult to assess deficiencies in the law without also considering the political context.

The book unapologetically confesses to having no solutions to the correct legal framework beyond a general call for the intervention of parliament to clarify consent. What the book does do successfully is to advocate for clarity in the law to prevent an uncertain legal journey adding to the psychosocial distress of trans youth. What Jowett reminds us of is this: Because the landscape remains haphazard, medical delay and legal uncertainty will continue to affect the mental health and wellbeing of trans individuals, particularly trans youth, and there is an urgency for congruency within the law on consent to level the playing field as far as medical treatment is concerned. The book is an important read for this reason alone.

While legal and medical regulation continues to play a dual dance of divergence and convergence around the point of scientific and medical progress, trans youth will continue to exist in an uncertain world.