In the US
On February 22, 2023, Chole Cole, now 18 years old, sued Kaiser Permanente (her medical provider) for medical malpractice related to her transition. At the age of 12, Ms.Cole decided she was a boy. Her physicians put her on puberty blockers and testosterone (the predominant male sex hormone) when she was 13 and performed a double mastectomy at 16. [1] Two years later, she’s become the poster child of the “detrans movement,” trying to reassert her feminine status. Just this past week, another case was filed by Layla Jane, also suing Kaiser, who gave her puberty blockers and testosterone when she was 12 and performed a radical double mastectomy when she was only 13. Her case parrots some of the emotional rhetoric in the Cole case;
“The lawsuit alleges that the doctors presented Layla’s parents with the false dilemma: would they rather have a live son, or a dead daughter? These are decisions I will have to live with for the rest of my life,” [Layla said] I’m ready to join the growing group of detransitioners so that no other child has to go through the torment I went through at the hands of doctors I should have been able to trust.”
A conservative non-profit, the Centre for American Liberty, filed both complaints, alleging a host of vituperative charges. Claiming that Ms. Cole was permanently “disfigured for profit” by the medical professionals, that she is on the autism spectrum [2], and is particularly concerned about her fertility and the pain and discomfort caused by skin grafts. In essence, Ms. Cole alleges her doctors induced her to trans, claiming that without the procedures, her gender dysphoria would never resolve. Kaiser Permanente is muzzled by HIPAA privacy laws and can’t fully respond beyond pointing out they were following the standard of medical care.
In the UK
Four years ago, a similar case was brought by Keira Bell in the United Kingdom against the National Health Service and her healthcare provider, the Tavistock gender clinic. At 15, Ms. Bell decided to transition from female to male. She started puberty blockers at age 16; at 17 began hormone therapy and had a double mastectomy at age 20. Now in her early 20s, Ms. Bell regrets transitioning, which has left her with no breasts, a deep voice, body hair, a beard, and affected her sexual functioning. Moreover, she may be infertile as a side effect of the drugs.
In her own words, Keira’s story presents the complex issues in a heart-rendering fashion. By twenty, “I appeared to have a more masculine build, as well as a man’s voice, a man’s beard, and a man’s name: Quincy, after Quincy Jones.” But Keira wanted to transition; she was adamant, demanding - there was no compulsion or inducement here. Her legal claim centers on the fact that as demanding as she was, no teenager is capable of giving informed consent to such a procedure; and that after a series of superficial conversations with social workers who should have ignored her demands.
When Ms. Bell was administered the puberty blockers and sex hormones some seven years ago, the full impact wasn’t known. There is still a lacuna in information: If these drugs are administered before puberty, the children lose the option of preserving gametes for later reproduction and may lose the capacity to experience orgasm.
“In December 2020, the … Court ruled [in favor of Ms. Bell] that under-16s were “unlikely to be able to give informed consent to what it described as "experimental" treatment, which is sometimes used to pause puberty in children experiencing gender dysphoria.”
Citing experts, the court decided the issue was legal rather than medical. One expert also opined that teenagers often engage in risky behavior, a trademark of this age group, and hence should be precluded from consenting.
As a result, the initial British ruling held that as a matter of law, informed consent of such treatment was not available to minors under 16 (in a perverted way worsening the status of those younger, as the decision then vests in their parents, who are competent under law to testify - referred to as Gillick competence in the UK.
This finding tracked with American Law, where minors under 18 cannot consent to medical treatment, except in rare circumstances where children under 15 could consent as “mature minors” or even younger children where public health issues are involved, such as children with sexually transmitted diseases.
The Bell case didn’t rule on the propriety of using puberty blockers and, later, sex hormones, per se. However, the lower court made abundantly clear its disdain for the lack of research by the NHS, such as the statistical difference between male-to-female and female-to-male transitioning. They also noted the treatments were experimental. While puberty-blocking treatment was reversible and gave children a longer time to consider their decisions, virtually all patients went on to sex hormone therapy which could have long-term irreversible effects on fertility and sexual function.
What youngster can really appreciate the consequences of these choices? While Ms. Bell could well be considered a “mature minor” legally able to consent (at least according to US standards), Ms. Cole’s case, also involving the lack of informed consent, also claims what might be called coercion, “that the doctors presented her case to her parents as a choice between … a suicidal daughter or a trans son.” [1]
In the doctors’ defense, they were following the accepted standard of medical care. Both the AMA and the American Association of Pediatrics recommend gender-affirming care. Will reliance on the consensus of scientific opinion protect the doctors? In the US, this remains to be seen.
On September 17, 2021, the Bell v. Tavistock opinion was reversed on appeal. In the appellate decision on Bell, the court ruled it would not interfere in the doctor-patient relationship, and it was up to the physician to determine the patient's mental competence.
American standards for making that decision vary among the states. But the Bell case sounded a death knell for the young plaintiffs and their parents.
This hasn’t stopped the surge of American interest in bringing these cases. Chloe Cole’s lawyer says she’s been contacted by lawyers around the country preparing their own cases.
“This so-called ‘treatment’ of Layla by her providers represents a despicable, failed medical experiment that grossly breached the standard of care….Layla’s medical providers grossly and recklessly breached the standard of care in this case, and others…we look forward to holding them liable for what they did, and together we seek to deter this assembly-line, insensitive, and destructive treatment of children with these woke, unscientific, and barbaric practices.”
- Attorney Harmeet Dhillon, Center for American Liberties.
The issue of informed consent
In most informed consent cases, the question is whether the physician provided enough information for the patient to make an informed decision regarding evaluating risks and benefits. Here, the issue is, no matter how much information is given, is a youngster capable of making decisions that involve consequences they cannot even imagine?
Under the doctrine of parens patriae, courts often remove the child's and their parents' decision-making ability when it comes to matters such as blood transfusions in Jehovah’s Witness babies [3]. Does the same approach hold here – or is this a matter of doctor-patient determination? Alternatively, some segments of the population, prisoners, for example, are considered vulnerable as a matter of law, such that they cannot consent to any experimental procedure. Do these children fit this model?
In essence, the cases boil down to, can you consent to the unknown? And when it comes to minors, is this a legal or a medical decision? The British have said that the ability to appreciate the information given to provide informed consent vests in the doctor. We will soon see what the courts say in the US.
While some say that eventually, science will win out, the British legal decision had little effect on public opinion or government policy. The promised class action has led to the closure of Tavistock, the UK’s only national gender clinic. [4]
"The UK’s only gender clinic, the Tavistock, has been ordered to close next year over concerns for the safety of its patients. …. more than 1000 families of former patients are expected to join a class action to sue the Tavistock for recklessly prescribing puberty blockers and unquestioningly launching children on a “gender affirmation” path.”
- BioEdge
[1] Will suing change transgender care? The Economist, March 11, 2023
[2] There is a recognized overlap between individuals with autism and gender dysphoria. You can find more information here.
[3] As depicted in the movie, The Children Act
[4] Even with the closure of the Tavistock Clinic, gender-affirming care will be available in the UK in regional centers.
