At What Age Can a Minor Give Informed Consent to Changing Gender?

At What Age Can a Minor Give Informed Consent to Changing Gender?

Discussions of the age at which it is appropriate for minors to grant informed consent to medical treatments with profound life-altering consequences and uncertain side-effects often take place in a vacuum, abstracted from every other benchmark of maturity to make important decisions. Laws tightly regulate the age at which young persons are allowed to sign contracts, purchase tobacco products, drive motor vehicles, enter casinos or taverns, and undertake full-time employment. Most directly relevant to decisions concerning gender is their capacity to make informed choices about sex, since gender transition will inevitably impact how (and whether) they will experience sex in later life. If they cannot be relied upon to make responsible decisions about their sexual present, should they be entrusted to make long-term decisions about their sexual future?

All Western countries set a minimum age for lawful consent to sexual interactions with another person. At present, this age varies between 16 and 18 in U.S. jurisdictions, with some of the most populous states at the higher end of that range and other states having raised the age over the last 40 years. Canada raised the minimum age of consent from 14 to 16 in 2008. Nearly all European states set the age between 14 and 16, although here too the tendency in recent decades has been to raise the age even as the average onset of puberty has steadily grown younger. 

Anxieties concerning sexual abuse of “children” have dominated the political discourse of both Right and Left in the U.S. since the 1980s, with the accumulation of ever harsher sanctions against those who violate the laws, including many minors themselves: decades of imprisonment, public sex offender registries, residency and travel restrictions, civil commitment based on fears of what someone might do. Enforcement of these laws in the U.S. disproportionately impacts LGB adults and adolescents, who are more likely to be prosecuted, placed on public registries, and receive long prison sentences than heterosexuals. 

So deeply ingrained is the assumption of universal trauma occasioned by premature exposure to sex that, in an unprecedented move, both houses of the U.S. Congress voted unanimously to condemn a peer-reviewed 1998 meta-analysis, published in the leading journal in the field of academic psychology, because it raised doubts about the extent of the harm in most cases, especially those in which the minor was a willing participant. There is hardly any issue on which public consensus is more passionate and uncompromising. 

The philosophical premise behind age of consent laws for sexual activity is that minors below a certain age are incapable of understanding sexual risk well enough to grant informed consent, regardless of how willing they may have appeared at the time. This premise is to some extent undermined by the complicated and little understood legal provisions in most U.S. states that exempt from statutory rape prosecution cases where the sexual partners are close in age; such exceptions suggest that in some circumstances consent can be granted, but only if the partners are assumed to be equal in their sexual naïveté. What remains unlawful throughout the U.S. are relations involving an adult who is more than a few years older than the adolescent. Even if that adult is not someone in a position of direct authority (like a teacher, coach, priest, therapist, or family member), they are assumed to benefit from a “power imbalance” in virtue of greater resources and knowledge. 

How should the same considerations frame our evaluation of a minor’s capacity to consent to medical interventions to change their sex? Arguably the issues involved in gender transition feature more complexity, the risks of a wrong decision are even higher, and the knowledge/power imbalances between for-profit medical practitioners and gender-troubled teens are even greater than those teens encounter with older romantic partners. 

(1). Complexity. Even if they may not understand the exact provisions of statutory rape laws in their state, most teens know enough about sex to understand the pros and cons. In contrast, juvenile gender transition continues to be the subject of serious scientific debate at the highest academic levels: unresolved questions persist concerning rates of suicidality and suicidal ideation before transition and post-transition, the relation of gender dysphoria to autism and psychiatric disorders that may be the root cause of distress that young people misdiagnose as gender incongruence, the actual rates of desistance and detransition in the absence of reliable follow-up studies of patients who stop visiting their gender clinic, and the long-term side effects of early medical treatment. Even experienced therapists find it difficult to be certain whether a given child who feels uncomfortable with their gender may be motivated by confusion about the rigidity of gender scripts in contemporary society, other psychiatric co-morbidities, child sexual abuse, internalized homophobia, social media and online influencers, or a genuine hard-wired condition that makes them a good candidate for medical transition. A series of studies have documented that only about 20% of children who visited gender clinics in past decades, before medicalized gender transition of minors was common, saw their gender dysphoria persist after they passed through puberty in their natal sex; the majority of those whose gender dysphoria did not persist developed as gay or lesbian. 

(2). Risks. The principal risks of underage participation in sex are ill-timed pregnancy and undetected/untreated STIs. Pregnancy and STIs can be reduced with proper sex education and over-the-counter prophylaxis. Even if that first-line defense fails, most STIs are treatable, and pregnancies that come too early in life can be addressed through abortion or adoption. In contrast, gender transition creates more irreversible changes. A known risk of puberty blocking medications is significant loss of bone density, raising the probability of premature osteoporosis later in life. Several studies also suggest an as yet imperfectly quantified risk of damage to cognitive development at a critical stage. Other risks of early tampering with sex hormones include vaginal atrophy, incomplete penile development, inability to experience orgasm, and ultimate infertility. Surgical risks are even higher for both transwomen and transmen. There is a not inconsiderable risk that a young person who goes through this process may eventually conclude it has not made them happier and wish to detransition; a study based on insurance records suggests that as many as 30% discontinue hormone treatments. 

(3). Knowledge/Power Imbalances. Given the complexity of the medical and social issues, children and even their parents are at a substantial disadvantage when interacting with enthusiastic online activists, “affirming” school counselors, and especially for-profit medical providers eager to expand their patient base. They find it hard to contradict “experts” who tell them that delay in transition will lead to a high risk of suicide, but fail to disclose that the actual risk of completed suicide is only about 0.03% over a 10-year period and little different post-transition. Critics have faulted treatment providers for omitting discussion of alternatives to medicalization or of the numerous systematic reviews that find the evidence for better mental health outcomes after gender transition to be of “low quality.” Many parents and detransitioned young people complain of being rushed through the process by medical authorities and without receiving the full and balanced discussion of pros and cons that must form the basis for “informed consent.” These knowledge and power imbalances are considerably greater than those that make sexual involvement between minor children and unrelated adults unacceptable. 

The decision to halt the normal course of pubertal development and take medical steps toward gender transition is in every respect more consequential, intellectually demanding, and emotionally fraught than the choice about when and how to begin exploring physical intimacy with another person. There can be no philosophical justification for allowing decisions on gender transition at an earlier age than young people can lawfully have sexual contact with a partner of their choice. In most states, a 15-year-old cannot consent to an adult touching her breasts with intent to give her pleasure, but she can consent to an adult surgeon being paid to cut off her breasts if their adolescent development embarasses her. If anything, the age at which it is lawful for a minor to consent to steps that may permanently limit fertility and sexual pleasure should be considerably higher than the age at which they are recognized as free sexual agents. 

By refusing to designate minimum ages in its latest Standards of Care, the World Professional Association for Transgender Health (WPATH) asserts a radical position not seen since pedophile activists in the 1970s advocated abolishing all age of consent laws for sex. A child’s possibly transient feelings that they were born into the wrong gender should not be regarded as more authoritative and reliable than feelings that they are ready for sexual  gratification with partners of their choice. Proponents of “gender affirmation” at any age, even without parental consent, should be challenged to explain why they do not also favor affirmation of sex at any age.