Uninformed Consent: The Transgender Crisis

Voices of sanity! Dr McHugh is a psychiatrist and Mr Bradley is a Professor of Law. 

From Commentary

By Paul McHugh and Gerard V. Bradley

Children cannot make these choices and should be protected from them

Willful arguments are gaining favor today over rational ones, as revealed by the clamor to provide “affirmative” support to those making transgender claims. Despite the given character of one’s sexual makeup, with its biological intelligibility and its natural place in every individual’s life, American culture has become ever more open to the idea that a person’s sex is mostly a matter of what he or she wants it to be.

Specifically, the champions of the transgender campaign rest their arguments on an essentially solipsistic view (“my truth”) that endorses the individual’s will, sense, or sentiments rather than on what is demonstrably real. The posture extends far into today’s bureaucratic culture. Many official surveys and job applications do not ask whether you are male or female, but rather with which gender you identify. In business and academic settings, it is fashionable to signal support for the transgender cause by adding to one’s own signature a parenthesis enclosing “my preferred pronouns” listing them as “he, his, him” or “she, hers, her” or even “they, theirs, them.” Note that “identify” and “prefer” are words linked to will, wants, and desires, as distinct from those such as “am” and “is,” which are linked to being, nature, and existence.

This cast of mind extends even to supporting the willfulness of prepubescent children (ages 8 to 14), supposing for them not only a right to decide on their sex but the still more radical right to demand and gain the medical and surgical procedures (“affirmative treatment”) to shape their bodies to match their wishes and presumptions.

This extension of the cultural supposition about transgenderism to include the medico-surgical treatment of youngsters is the subject of intense debate and legal argument across America. Arkansas legislators in April enacted (over the governor’s veto) a law banning “gender transition services” for any transgender individual under the age of 18, believing such persons too young to provide sound “informed” consent. Substantial scientific evidence supports this view.

But before it could take effect in July, four families of gender-dysphoric children and two doctors (with the help of the American Civil Liberties Union) challenged the law, alleging that it lacks any foundation in science.

The truth is quite to the contrary.

Indeed, in a legal brief filed in support of the Arkansas law, the attorneys general of 17 other states wrote, “States have been forced to step in to protect kids from [these] experimental treatments. The medical establishment has abandoned the field to the political zeitgeist” and, we would add, has abandoned as well the evidence-based practice of medicine.

The specific “services” made illegal for young people in Arkansas are those prescribing a sequence of medications that, first, block the development of natural puberty in a maturing boy or girl. That is followed then by a regimen of testosterone or estrogen (“cross-sex hormones”) to provoke some of the post-pubertal physical features of a member of the opposite sex (breast development in boys, facial hair and deep-pitched voice in girls.)

Three individuals (two physicians and one medical student) who are providing such treatments to children in Michigan condemned the Arkansas law in the May 19, 2021, issue of the New England Journal of Medicine. They claimed that the law endorsed bad medical policy because it (and similar laws under debate in other states) “is not based on data, medical literature, or correct information about the process of treating transgender adolescents.”

But the “affirmative treatments” these doctors promote (and that the Arkansas law prohibits) have frail foundations. One of the papers to which they turn for support specifically identifies the strength of the evidence of success for these treatments as “low.” In fact, for these radical treatments, no satisfactory controlled study has even begun. Much less are there any findings from such a study in any peer-reviewed publication. Few of the young people being “affirmatively treated” in “gender clinics” around the country are being systematically assessed before treatment, and few are being closely followed afterward.

The “gender transition services” rejected by the Arkansas law are socio-psychological experiments on children. These pharmaceutical interventions have grave, life-altering consequences, the benefits of which many dispute. One explanation for this state of affairs is supplied by the leader of the Johns Hopkins Center for Transgender Health. She claims there is no need to investigate the value of affirmative interventions for transgender children because, she asserts, “clinical experience” has satisfactorily answered such questions. Evidently, many of her young patients respond positively, at least early in their treatments. But that hardly makes these experiments a success, since early responses do not necessarily presage long-term satisfaction or benefit.

All these clinicians seem to embrace such positive anecdotes because they fit a solipsistic ideology according to which a person’s understanding or imagined projection of oneself as male or female is all that matters, even if one is 11 years old. The Michigan authors who criticized the Arkansas law put their cards on the table by asserting that “each person has their [sic] own gender journey” to make.

Doubts about these treatments persist among relatives and friends of many of the young subjects. These doubters wonder whether other psychological issues may not be behind this emerging surge of gender dysphoria, especially in girls. They sense that their loved ones are being misled and will suffer rather than benefit from these physically transformative treatments. They are justified in their fears not least because many of the facts about human nature and its biological development are being ignored with these procedures.

The treatments do much more to the maturing child than change his or her appearance. They tamper recklessly with complicated, incompletely understood neurobiological mechanisms crucial in human physical and personal maturation. And they betray a thoughtlessness about a critical and unique distinction in the psychosocial development of human beings.

Let us consider these two aspects—recklessness and thoughtlessness—with special emphasis on their implications for “informed consent.”
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RECKLESSNESS: With these “affirmative treatments” of the gender dysphoric child, we encounter two well-known snares in experimental science—namely, the tendency to treat a very complex system as if it were simple, and an accompanying tendency to study only the results of immediate interest rather than all the effects that result. The narrow focus of experimentalists may lead them to overlook more wide-ranging effects of their actions or to ignore shortfalls that those actions evoke.

There is no more complex system in human development than the dynamic neuroendocrine process that leads ultimately to successful and full sexual (and general personal) maturity. Some aspects are understood. Other aspects remain complete mysteries. We need to emphasize several points regarding the scientific information about puberty and the implications tied to disrupting it. They are most relevant to this proposed treatment program, even if widely ignored.

First: Puberty begins between the ages of eight and 14 in girls and nine and 14 in boys. All attempts at blocking the course of puberty are being made in young people whose capacity for judgment and decision-making in any other significant realm of life is not considered adequate.

Second: Much information exists describing the interactions between the brain and body during puberty. There are the dynamic feedback loops involving controls within the hypothalamus of the brain that evoke and manage puberty. There is the pituitary gland, which sits right beneath the hypothalamus and is the conduit of its direction of puberty as the “master gland” controlling the hormonal activity of the bodily endocrine glands, particularly the testis or ovary. And there are the gonadal hormone messages (testosterone, estrogen, progesterone) derived from testis or ovary that evoke pubertal bodily changes. But the underlying mechanism that launches puberty and thus sets these sequences in action is completely unknown.

In fact, when the 125th-anniversary issue of Science magazine highlighted what it saw as the 125 most compelling puzzles in science, one of the puzzles was “what triggers puberty.”1 The protocol for blocking puberty employed in the “affirmative treatment” of transgender youth frustrates this mysterious and critical triggering mechanism, and its promoters have no clear idea about what that might mean to overall brain and psychological development.

What we do know is that the testosterone, estrogen, and progesterone released by the male testis or the female ovary have “organizational effects” on the brain as well as “stimulating effects.” Not only do these hormones evoke sex-appropriate arousal, but they are also critical to producing sex-appropriate brain structures that have crucial and measurable psychological functions in mental life. Altering the natural hormonal constitution in adolescence by providing hormonal synthetics opposite to one’s genetic constitution cannot fail to disrupt these “organizational” matters—again, with unknowable long-term effects.

The hypothalamus, which directs the neuro-endocrine sequences of puberty, is itself embedded centrally and strategically within the “limbic system” of the brain, where it manages the endocrine and autonomic (visceral) states of the body and also contributes to shaping the emotional and motivational states of the mind. This is a most complex relationship. The limbic system is the brain network of interconnected nuclei and neural tracts (the amygdala, hippocampus, fornix, stria terminalis, and the like) that together shape and sustain the person’s “attitude” toward the outer world. The hypothalamus at its very center harbors the neural mechanisms that render the bodily endocrine and autonomic features apt for the feelings, moods, and dispositions that represent such “attitudes”—feelings of trust or fear, confidence or dread, composure or anxiety, pleasure or displeasure, fight or flight, and so on.

The hypothalamus also shares responsibility for the person’s perceptions of the environment that generate these feelings (and the motivations evoked) through its reciprocating neural interconnections with the nuclei of the limbic system and with the frontal neocortex.

Reflecting on these psycho-biological, indeed self-constituting, effects of the dynamic features of puberty, a court in the United Kingdom wrote in December 2020 that puberty blockers “prevent the child going through puberty in the normal biological process; …this means that the child is not undergoing the physical and consequential psychological changes which would contribute to the understanding of a person’s identity.” The court concluded that puberty-blocking “treatment goes to the heart of an individual’s identity, and is thus, quite possibly, unique as a medical treatment…The treatment involved is truly life-changing.”

This legal judgment picks up on the thoughtless side of these treatments—their senseless disregard for a critical and defining distinction in the psychosocial development of human beings.

In most of the animal kingdom, the successful passage of the individual through puberty essentially “completes” the developmental process. From that point on, the animal’s life tasks are survival and reproduction, rather than further individuation. By contrast, many of the most important aspects of human development occur after puberty. Although much is prepared during the long prepubescent phase, the moral, social, and intellectual capabilities of individual people—those features they need to govern and care for themselves—do not bloom until after it.

In other animals, all that they shall be is in place at puberty. For us, puberty amounts to a kind of second birth; it is the start of our becoming contributing members to our times. To block puberty and then artificially redirect its course is to tamper with a vital human developmental matter with no reason for confidence in what will emerge beyond a lifetime preoccupied with medico-surgical interventions to maintain the illusion that one’s sex has changed.

It was with this crucial feature of human beings in mind that the UK court ruled that no child is capable of consenting to these treatments. The court in Bell v. Tavistock noted “the immediate consequences of the treatment in physical and psychological terms,” “the unknown physical consequences of taking puberty blockers,” and the prospective loss of sexual function and fertility.

The court then wrote that a child under 16 could scarcely “understand and weigh up such information. Although a child may understand the concept of the loss of fertility for example, this is not the same as understanding how this will affect his or her adult life. A child’s attitude to having biological children and the understanding of what this really means, is likely to change between childhood and adulthood.” Indeed, “for many children,” it “will not be possible to conceptualize what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life,” the court wrote. Children can neither understand nor evaluate the information that they receive precisely because they are not adults.

Not only is the capacity for informed consent limited in children, experience has provided a strong hint that puberty-blocking may also significantly impair the voluntariness with which these children consent to subsequent cross-sex hormonal regimens and even to later surgeries. Eighty-five to 90 percent of children with gender dysphoria abandon it if their puberty proceeds without interference. In contrast, fewer than 10 percent of children started on puberty blockers (with all the neuroendocrine effects we described above) come to reject these ideas or rebuff proposals to proceed with cross-sex hormones and surgery.

It thus appears that the majority of children complaining of distress with their natal sex do best if not treated: They outgrow their sense of being in the “wrong body” and come to live peacefully being the male or female they were found to be at birth. This point did not elude the UK court. Besides holding that children were incapable of consenting to this treatment, the court also wrote: “The evidence shows that the vast majority of children who take [puberty blockers] move on to take cross-sex hormones, that [these] are two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it.”

Clinicians cannot identify children who complain of gender dysphoria but who will naturally outgrow it. The Endocrine Society’s guidelines, for example, state that current knowledge does not enable medical professionals to “predict the psychosexual outcome for any specific child.” This uncertainty is crucially important if, as experience suggests, puberty blockers operate on the patients so as to lock them into the later, even more radical, steps of cross-sex hormones and mutilating surgeries many of them may come to regret.

Finally, we believe that the basis for holding that no youth can responsibly consent to these treatments goes deeper still. It is not primarily that children lack the sophistication to understand the information that is offered to them, although they do. It is not principally that they lack the maturity to evaluate the costs and benefits implied by that information, although they do. It is not even mainly that they are drawn by their distress as if involuntarily into a closed loop of further (and still more) pharmaceutical dependence, although they are. It is rather that blocking pubescent development as the boy or girl one is, and then substituting for it a drug-induced simulacrum of the post-pubescent development of the boy or girl one imagines oneself to be, assumes more than anyone can about the outcome of these manipulations.

Actual and truly informed consent in these matters is impossible for anyone—for the child or for the most concerned and dutiful parent. How can anyone legitimately support this course of treatment when no one can know either what person would have emerged had it not been followed or what human costs were paid because it was? “Affirmative” treatment of a child with gender dysphoria subverts the concept of informed consent by ignoring the momentous issue of just what’s been given up. If nobody really knows what’s happening, how can one consent to it?

For all these reasons, we maintain that this program, dominant though it is in our elite cultural conversation, is going to collapse. The injuries being inflicted recklessly and thoughtlessly on children will surely upend it.

All the makings of a legal sea change are present here. To illustrate what we mean, picture a likely case of a 10-year-old girl today, somewhere in the United States, who is being put on puberty blockers by a “gender clinician” with the support of her mother or father. They listened to this girl—let’s call her Kelsey—argue against her sex. Later, at age 25, Kelsey—now known as Kevin—awakens realizing that she has a five o’clock shadow, that she is neither male nor female in sexual appearance, having undergone various mutilations to her body, and that she is infertile.

This now emotionally devastated young woman will ask her parents: “How did you let this happen to me?” And her parents will reply, “Well, the doctors said…” Then parents and Kelsey will visit the doctors and ask, “Why did you recommend this treatment?” The doctors will reply, “That’s standard treatment for the transgendered.” Kelsey will answer, “But I wasn’t transgendered, I was a confused child!” And the doctors will be forced to admit, “We can’t identify the children who will later show that the transgender diagnosis didn’t fit.”

One adult who had undergone “gender-transition” reported regrets such as Kelsey’s in the UK Tavistock case:

It is only until recently that I have started to think about having children and if that is ever a possibility, I have to live with the fact that I will not be able to breastfeed my children. I still do not believe that I have fully processed the surgical procedure that I had to remove my breasts and how major it really was. I made a brash decision as a teenager, (as a lot of teenagers do) trying to find confidence and happiness, except now the rest of my life will be negatively affected. I cannot reverse any of the physical, mental or legal changes that I went through. Transition was a very temporary, superficial fix for a very complex identity issue.

With the appearance in the United States of even one well-publicized case such as Kelsey’s, with its obvious potential for a major lawsuit, the transgender misadventure will come to a close. A public outcry will start, insurance companies will cease malpractice support as lawsuits emerge, and reputations of doctors and health systems will sink.

The damage to the victims will nonetheless be irreparable and (as Abigail Shrier’s 2020 book on this subject has it) irreversible.2 Their sense of betrayal will be matched by the shame of everyone capable of feeling it.

For all these reasons, we join with the people of Arkansas and say, “Leave the kids alone.” Let their brains and bodies develop unimpeded, and let them grow into the adults they would naturally be. Then, after they have acquired some understanding of what is involved and some readiness to accept the consequences of their decisions, let them choose for themselves what they want from their lives and their given sexual natures.

1 D. Kennedy and C. Norman: Science 309 (2005), page 90.

2 Irreversible Damage: Teenage Girls and the Transgender Craze (Regnery Publishing).