Trans adolescents should decide when to start gender-affirming care, not parents or courts

What is it about?

(Free version of the paper available under “Resources” on the right.) Debates around access to gender-affirming care often focus on whether clinicians should offer transition-related medical interventions to adolescents, and little attention is paid to the question of who should make the ultimate decision to accept or reject the intervention once it is offered. This issue has, however, come up in court cases—with those opposing gender-affirming care frequently arguing that adolescents can’t validly consent to it. This paper takes on the question by drawing on the idea of subsidiarity, from political philosophy. Subsidiarity is deceptively simple. The most impacted, lowest-level person or group—such as the adolescent being offered medical care—should make the decision by default, and more ‘distant’ people like parents and courts should only get to make decisions if their input is necessary to making a satisfactory decision. Applying subsidiarity, my paper argues that youth should usually get to make that decision even when they don’t have full capacity to consent because parents and courts are worse placed to make the decision. Parents and courts are typically given authority to make decisions because of the assumption that shared values and considerations can be used to make them—which is often right. But the uniquely personal, intimate nature of gender makes it nearly impossible for them to have a good sense of what it’s like for the adolescent to delay care. The adolescent typically remains the ‘best’ decisionmaker even when they don’t have full capacity to consent. The paper develops a framework for ascertaining when adolescents should and shouldn’t get to make that ultimate, legal decision and concludes that it’ll be rare for parents or courts to be better positioned to decide.

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Photo by Kristina Stepanidenko on Unsplash

Photo by Kristina Stepanidenko on Unsplash

Why is it important?

While social media debates often focus on the morality and scientific grounding of gender-affirming care, debates around capacity to consent often pose the greatest risk for court restrictions on access to gender-affirming care. We saw it in the English decision Bell v Tavistock, and similar arguments were attempted— unsuccessfully thus far—in Canada and Australia. A judge’s conclusion that parental or court approval is needed can delay access to care by months or years and create hierarchies between adolescents who have parental and financial support and adolescents who don’t. It’s important to develop scholarship that can speak to these legal aspects, developed in a language that is legible to courts tasked with making decisions. Another reason my paper is important is that it doesn’t focus on whether trans adolescents usually have the maturity or insight that attracts full capacity to consent. I grant that some may not have full capacity to consent, and instead focus on what we should do in those cases. That’s very important to me, because there are trans adults who will never be considered to have full capacity to consent by the legal system due to their disabilities. There are also youths who are maybe less mature or supported yet need gender-affirming care for wellbeing and as a matter of self-definition and autonomy. Our scholarship needs to serve all trans people, not just those who accord with dominant, oppressive standards of medical capacity. Although I focus on adolescents, my paper is also a major contribution for adults with developmental disabilities and mental illnesses that undermine capacity to consent as understood by courts. I hope that it will contribute to greater access to gender-affirming care for them as well.