Can Minors Give Informed Consent?

In our previous articles, we talked about how the current model of medical and surgical transitioning is built on faulty anthropology. It misdiagnoses the fundamental problem with gender dysphoria and so provides the wrong solution, and it doesn’t actually successfully address gender dysphoria. 

But all of these truths apply to people of any age. And so, why is the Let Kids Be campaign focused just on minors instead of all people with gender dysphoria? 

The reason for our focus on minors is centered on consent. In Canada, we prize freedom and consent highly. We generally don’t want to place many restrictions on people, especially on what they do or don’t do with their own body. For better or worse, we trust rational people to make decisions for themselves, even if that allows them to make what most other people would consider the wrong decision. 

The caveat to this is that people must be rational or mature enough to make these decisions. Children and adolescents, though, are still in the stage of life where their brain is developing. All across Canada there are minimum ages (e.g. 18 or 19) for a variety of relatively trivial matters (e.g. to change your legal name, buy a lottery ticket, donate blood, watch an R-rated movie, or adopt a pet from the SPCA) as well as more consequential matters (e.g. to marry, join the armed forces, buy cigarettes, or consume alcohol).¹ Governments restrict these activities because they realize certain risks and their ensuing obligations are only appropriate for certain ages.

The issue with medical and surgical transitioning is that there are no age requirements specified in the World Professional Association for Transgender Health (WPATH) standards that Canada generally follows. It is not uncommon for children to start taking puberty blockers at 9 or 10 years old and testosterone or estrogen at 14 or 15. 

Age matters because informed consent matters.

While WPATH has dropped all age requirements for hormonal and surgical treatments for gender dysphoria,² age matters. Age matters because informed consent matters. In Canada, physicians are required to obtain the informed consent of any patient before providing medical treatment – including treatment for minors.³ The Supreme Court defines informed consent as anything a reasonable person in the patient’s position would want to know.⁴ The central principle is clear – physicians have both an ethical and legal duty to “take reasonable steps, at minimum, to ensure patients understand the information provided to them.”⁵

Studies indicate that adults patients – much less minor patients – often do not understand the information that doctors present to them.⁶ Furthermore, patients often have a difficult time identifying their own misunderstandings.⁷ Doctors have an especially heavy burden to clearly convey information when there may be special or unusual risks that may arise from the procedure and when the procedure is elective, as hormonal and surgical treatments for gender dysphoria are.⁸ A physician must go so far as to describe “infinitesimally small” risks.⁹ A physician may not simply describe the probabilities of certain risks arising but must explain the full consequences to the patient should the risk materialize, along with the nature and severity of the potential injuries.¹⁰ Hormonal and surgical treatments for gender dysphoria involve many and varied risks described in the previous articles.

If the evidence suggests that physicians are already struggling to provide adequate informed consent for far less complicated procedures to adults, how can physicians provide properly informed disclosure in the far more complex cases of gender reassignment surgery to minors?

Furthermore, with a lack of randomized controlled trials in this field to help inform the consent process, the ability to give fully informed consent to any medical transition treatment is dubious even for adults, much less for minors. 

There currently are no age restrictions for receiving puberty blockers, cross-sex hormones, or gender reassignment surgery.

But there currently are no age restrictions for receiving puberty blockers, cross-sex hormones, or gender reassignment surgery either in WPATH’s standards of care or Canadian provincial law or regulation. It is difficult to see how a lack of age requirements for hormonal and surgical treatments is acceptable when far less risky or consequential behaviour has age limitations.  

Gender clinics require children and adolescents to sign informed consent forms prior to treatment,¹¹ but do they really understand the consequences and risks associated with these procedures? If a girl starts puberty suppressants and testosterone beginning at age 14 and continuing for a few years, it will almost certainly make her sterile. If she continues down this road to receive surgical procedures such as removing her uterus and ovaries, pregnancy is out of the question. Does a 14-year-old girl understand the decision she is making here?

The trial judge in Bell v Tavistock in the United Kingdom concluded that it was “very doubtful” that 14- or 15-year-olds have such competence and “highly unlikely” that children aged 13 or under have competence for that decision.¹² That case centred around the question of whether minors have the capacity to consent to medical or surgical transitioning.

It is impossible for minors to have the capacity to give informed consent to the irreversible effects of medical and surgical transitioning.

In almost every other circumstance in which a minor needs medical care, their parents or guardians consent on behalf of the child. This reflects a common understanding that minors do not have the capacity to consent in the same manner as an adult. However, when it comes to treating gender dysphoria, there is a growing pattern of excluding parents from the entire treatment process if they object to a medical transition.¹³ This includes courts even forbidding a parent from objecting to his child’s medical transitioning in public and using his child’s birth name and pronouns and throwing him in jail for violating these court orders.¹⁴

In summary, we think that it is impossible for minors to have the capacity to give informed consent to the irreversible effects of medical and surgical transitioning. That is why we are campaigning to Let Kids Be and to ban medical and surgical transitioning specifically for minors.

1. Justice Education Society, “Youth Age-Based Legal Rights in BC,” accessed March 31, 2023, http://legalrightsforyouth.ca/age-based-legal-rights. ↩︎
2. Coleman et al., “Standards of Care for the Health of Transgender and Gender Diverse People, Version 8.” ↩︎
3. For a full overview of Canada’s informed consent legislation see, Gerald B Robertson & Ellen I Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: Thomson Reuters Canada, 2017) at 100-109; 154-204 [Legal Liability of Doctors]. ↩︎
4. See, Reibl v Hughes, [1980] 2 SCR 880, 114 DLR (3d) 1, aff’m in Ciarlariello v Schacter, [1993] 2 SCR 119, 100 DLR (4th) 609. ↩︎
5. Sarah Birmingham, Christen Rachul & Timothy Caulfield, “Informed Consent and Patient Comprehension: The Law and Evidence” (2013) 7:1 McGill JL & Health 123 at para 5 [Informed Consent and Patient Comprehension]. ↩︎
6. BM Stanley, DJ Walters & GJ Maddern, “Informed Consent: How Much is Enough?” (1998) 68 Australian & New Zealand Journal of Surgery 788; Jeff Whittle et al, “Understanding of the Benefits of Coronary Revascularization Procedures Among Patients Who are Offered Such Procedures” (2007) 154 American Heart Journal 662; Allison E Crepeau et al, “Prospective Evaluation of Patient Comprehension of Informed Consent” (2011) 93:19 Journal of Bone & Joint Surgery American Volume 114; Jü JW Wulsow, T Martin Feeley * Sean Tierney, “Beyond Consent: Improving Understanding in Surgical patients” (2012) 203:1 American Journal of Surgery 112; Sonu Pathak et al, “Consent for Gynaecological Procedure: What Do Women Understand and Remember?” (2013) 287 Archives of Gynecology & Obstetrics 59. ↩︎
7. Informed Consent and Patient Comprehension, supra note 35 at para 8. ↩︎
8. An elective procedure is one that is not medically necessary. See, Philion v Smith, [2008] OJ No 3412. Other examples of elective procedures include cosmetic surgery, sterilization, and even abortion. See Legal Liability of Doctors, supra note 33 at 180-81. ↩︎
9. Kitchen v McMullen, 100 NBR (2d) 91, 62 DLR (4th) 481 (NBCA), leave to appeal to SCC refused [1990] 1 SCR viii. ↩︎
10. Revell v Chow, 2010 ONCA 353 at para 43. ↩︎
11. See, for example, BC Children’s Hospital Gender Clinic, “Information Sheet: Testosterone for Assigned Females with Gender Dysphoria,” December 5, 2022, http://www.bcchildrens.ca/endocrinology-diabetes-site/documents/transtestosterone.pdf; BC Children’s Hospital Gender Clinic, “Information Consent Form: Minor Youth Testosterone for Assigned Females with Gender Dysphoria,” December 14, 2020, http://www.bcchildrens.ca/endocrinology-diabetes-site/documents/transconsentminor-t.pdf; Sick Kids, “Information Form: Testosterone Therapy for Individuals with Gender Dysphoria Assigned Female at Birth,” 2023. ↩︎
12. Bell v. Tavistock, [2020] EWHC 3274 ↩︎
13. See, for example, the legal case of A.B. v. C.D. and E.F., 2020 BCCA 11 ↩︎
14. National Post, “B.C. father arrested, held in jail for repeatedly violating court orders over child’s gender transition therapy,” March 17, 2021, https://nationalpost.com/news/b-c-father-arrested-held-in-jail-for-repeatedly-violating-court-orders-over-childs-gender-transition-therapy ↩︎