On the other hand, gender-critical advocates point out that a great many children who experience gender dysphoria lack either the legal right or the emotional maturity to take decisions that have irreversible physical consequences for the rest of their lives. Further, they assert that in many children, gender dysphoria is a transient phenomenon which often reverts in later puberty. They point to the growing number of so-called detransitioners as evidence that a great many of those who take puberty blockers, or undergo other medical and surgical procedures, later regret it.
On both sides, then, there is an absolute certainty that the other side’s position will do lasting harm to children.
The Court’s Decision
Making its decision last week, the UK High Court essentially followed the example of Pontius Pilate. Throwing out a legal challenge which sought to halt the trial, the Court said that decisions about whether to proceed with a trial of the drugs on children were “quintessentially a question of judgment for medical authorities”, and that the Court had no jurisdiction to intervene in the matter.
As such, barring intervention by the UK Supreme Court, the trial will now proceed, with up to 226 children expected to be recruited to take part.
The Court, of course, was within its rights to say what it said. The UK being a democracy, matters of public ethics are up for democratic adjudication. And the UK government, having been elected, is intent on proceeding with the trial. As a purely legal matter, the Court’s decision to punt is neither unexpected nor illegitimate.
It is, however, wrong.
First, Do No Harm
The first principle of medical ethics, throughout history, has been that the first duty of a doctor is to do no harm to the patient. In the debate about whether puberty blockers should be permitted to be trialed on children, while there is a dispute over the harms each side believes will result, only one side demands medical intervention.
Consider first the position of the gender critics, who want the trial stopped. Their demands, were they granted, would essentially lead to a lack of any positive medical intervention, by means of drug administration, for children who experience gender dysphoria. Medics would do nothing, allowing puberty to proceed normally and seeking to alleviate their dysphoria by counseling and later by surgical or hormonal treatment only after their patient has reached an age where informed consent for those procedures can be given.
If the gender-critical side is wrong, then doctors will not actively have done any harm.
By contrast, the position of supporters of the trial – and puberty blockers more widely – is that medics should actively intervene to prevent natural puberty from taking place. This would be a positive act – an interference to alter natural biological development – for which the doctor’s intervention would be responsible for all that flowed from that act.
One need not take a position on which outcome is likely to be more harmful to observe that only one set of harms would flow from medical action.
The Obligations of Uncertainty
Of course, advocates for puberty blockers might retort that medical inaction in the face of potential harm is a harm itself, and that doctors have a positive obligation to intervene in cases where their best judgment suggests that not to do so would cause severe consequences later.
However, there is a further problem: there is a difference between a doctor administering a harmful but proven treatment – think chemotherapy – and a doctor administering a treatment whose necessity and prognosis are both uncertain.
On necessity, for example, the multiple documented cases of children experiencing transient dysphoria which later disappears are enough to render necessity moot. Applying a permanent treatment to a transient ailment, when that treatment has irreversible consequences, is grossly disproportionate.
Further, given the uncertainty about the treatment itself, this disproportionality becomes yet more acute. There is no other psychological condition on the planet which is resolved by irreversible and body-altering medical intervention. This alone should give medics pause.
Induced Infertility
The specific nature of those potential harms is another matter which should have given both medics, and the courts, severe pause for thought. When puberty blockers are followed by the administration of cross-sex hormones – which is the usual protocol in the treatment of transgender children – permanent infertility is an almost universal side effect.
For a doctor or medical team to set a child – who cannot possibly understand the lifelong consequences, emotionally and psychologically, of infertility, on a course towards that outcome is a drastic step. And note well – this is not an outcome that is being trialed. It is a pre-existing and understood outcome, yet more than 200 children are expected to be placed on that course.
The Implausibility of Informed Consent
That stark reality brings into focus that the matter not getting a proper debate here is the ethics of experimenting on children, full stop. For that is what this trial is: it is designed to conduct a medical experiment on hundreds of children who – by dint of centuries of law, precedent and psychological research – are universally acknowledged to be unable to consent in an informed way.
The idea that a ten- or 11-year-old child can consent to the consequences of being a 19-year-old who never underwent puberty is fanciful on its face. The idea that they can consent in an informed way to how they may feel at age 40, without ever having the chance of a biological child, is outrageous. And further, the idea that a parent or guardian can consent on their behalf without having ever experienced those states of being themselves is frankly even less convincing. Regardless of who consents, the potential consequences of being a young adult whose puberty has been artificially suspended simply cannot be understood by anybody involved.
Courts, it might be said, cannot intervene in matters of medical judgment. But they certainly can intervene on legal concepts as fundamental to Western civilization as the notion of informed consent.
Instead, the British state, through its medical authorities and now its courts, is content to turn more than two hundred children into medical guinea pigs. For some of those children, perhaps, the treatment will not be regretted. Yet the very nature of a trial presupposes that for many more – if not all – the trial could alter their young lives in a profoundly negative way.
That a modern state could sanction such a thing, and call it care, is difficult to understand.
