B.C.’s highest court says 14-year-old can continue hormone treatment, despite gaps in risk disclosure
The B.C. Gender Clinic’s “Informed Consent Form” for “hormone therapy” is both inadequate and misleading, in my view. Yet the province’s highest court ruled last week, in AB v CD, that a 14-year-old girl who had signed the form could continue to receive testosterone therapy despite her father’s objections.
In this article, I explain that decision and what it may mean for B.C. children and families.
What is the AB v CD case about?
ARPA was in court last week as an intervenor in AB v CD (anonymized short forms for a girl and her father) at the Court of Appeal. The appeal raised two major issues:
- Can a minor (14 years old), who identifies as transgender, be given puberty blockers and “hormone therapy” (testosterone) without a parent’s consent?
- May a court – as the lower court did – tell a father that he may not (a) try to persuade his daughter to stop hormone treatment, or (b) call his daughter by her birth name or refer to her with female pronouns (when speaking to her or anyone else), or (c) give out any information “relating to [his child’s] sex, gender identity, sexual orientation, mental or physical health, medical status or therapies” whether directly or through his lawyers?
ARPA’s written and oral submissions focused on the second issue– censoring the parent. We believe the Court of Appeal was receptive to our arguments and hope that it will lift the lower court’s censorship. You can read more about the case and ARPA’s written arguments here.
This article, however, is about the first issue – informed consent to hormone therapy. At the end of the hearing last week, the Court of Appeal ruled “from the bench”, that is, orally in the courtroom, that AB could continue receiving treatment from the Gender Clinic.
When can a minor decide for herself?
The father’s lawyers argued that AB’s doctors had no right to proceed with the treatment without his consent, according to the Infants Act, section 17. The Infants Act says that a minor may consent to treatment only where the doctor: “(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and the reasonably foreseeable benefits and risks of the health care, and (b) has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interest.”
In other words, the “infant” (person under 18) needs to understand the treatment and its risks and the doctor must have good reasons to believe the treatment will actually help the child. If the doctor is not satisfied that the minor understands the treatment’s consequences and risks, then he must obtain a parent or guardian’s consent.
The Court of Appeal Justices were obviously hesitant to interfere with the determination by the Gender Clinic doctors that AB understood the nature, consequences, and risks of “hormone therapy” and that it was in her best interest. In one way, such a deferential approach is understandable – what business do judges have overruling doctors?
Yet even doctors require legal oversight. Doctors are just as prone as anyone to make decisions according to their ideological biases (these are doctors who have self-selected to work at a place that gives hormone treatment to minors) and self-interest (they make more money the more patients they can bill the government for). Not only that, but this is not merely a question of medical expertise. It is properly a question of ethics and law, too.
Even if, as a society, we wish to allow teenagers to make “health care” decisions that may render them permanently infertile, among other harmful side effects, most would agree that all relevant information about the treatment in question – and its alternatives – should first be disclosed to the person making the decision. The question is: was that done in AB’s case?
The Gender Clinic’s “Informed Consent Form: Testosterone Therapy”
The consent form does not provide full and frank disclosure regarding what is known and unknown about gender dysphoria or the use of puberty blockers and hormone injections to “treat” gender dysphoria.
The form begins by asserting: “The cause of gender dysphoria is not known, but is thought to be partly due to genetic or environmental causes affecting the early development of my brain pathways.” “Thought to be” by whom? It doesn’t say. What “environmental causes”? None given. “Genetic” causes? Nada. Meanwhile, although there is evidence that gender dysphoria is (at least partly) a social phenomenon (or a social contagion), that fact isn’t mentioned.
The consent form continues: “It has been explained to me [the patient] that doctors are prescribing testosterone because they believe that I will continue towards full or partial physical transition to a male body […]. There is another kind of surgery to create male genitalia…”
But a female person cannot obtain a male body, or male genitalia – only surgically formed imitations that cannot perform the same function. “Sex reassignment” doesn’t work. The form does not explain this.
The form says that decisions about surgery can be made only after “I have been living in the gender role that is congruent with my gender identity for a period of time.” What does “living in the gender role” mean? Taking testosterone? Wearing masculine clothing? Using masculine pronouns? How long is “a period of time”? All this goes unanswered.
Regarding infertility, the form says, “Even if you stop taking testosterone, you may or may not be able to get pregnant in the future.” That statement is true for every girl and woman who does not take puberty suppressants or testosterone, so this can hardly be considered risk disclosure. Rather, if a girl starts puberty suppressants and testosterone, beginning at age 14 and continuing for a few years, it will likely make her sterile. And if she continues down this road to receive the surgeries the form mentions (removing uterus and ovaries), pregnancy is out of the question. Does a 14-year-old girl understand the decision she is making here?
The form also says that “it is not known with certainty” whether testosterone injections for females “increases the risk of ovarian, breast, cervical or uterine cancer.” Of course, such things are rarely known with certainty, but if there is evidence of a causal link, it should be disclosed.
Even more significantly, the form does not disclose any of the following facts:
- Lupron (used by the Clinic to suppress puberty) is used to treat cancers in adults, but has not been studied for use as a puberty suppressant – an “off-label” use.
- There are many reports of bone and joint problems associated with the use of Lupron by minors.
- Gender dysphoria in 80-98% of youth (depending on the study) will resolve naturally, without puberty suppressants, hormones, or surgery, through growth into sexual maturity.
- Studies indicate that rates of suicide and depression do not decrease following medical “transition”.
- Many people regret their medical transition and choose to de-transition, though there are often irreversible consequences of the initial transition process.
- A large percentage of gender dysphoric young people have a substantial co-occurring history of psychosocial and psychological vulnerability, and some doctors believe that this may underlie the gender dysphoria and require care
The Court of Appeal ruling on Issue #1
How, then, did the Court of Appeal decide not to interfere with the decisions of the doctors and the lower court that first heard this case? Well, we do not really know yet. The Chief Justice said that the Court’s reasons would follow, in writing, at a later date.
What I suspect, based on observing the whole hearing, is that the judges separated the issue of AB’s capacity to consent from the question of whether the consent was adequately informed. That is, the judges may believe that even if all the relevant information was not disclosed, the decision about whether to get treatment or not still lies with AB, not CD. Any deficiency in disclosure, then, would be a problem that AB may choose to address – say, in a future lawsuit against the Clinic – but it is not CD’s place to complain on AB’s behalf.
The problems with this reasoning, from my perspective, are twofold:
- How can AB be deemed mature enough to understand consequences and risks that were not disclosed?
- Decisions about a minor’s health care belong to a parent unless and until the doctor determines that the minor fully understands the treatment’s implications. If a parent cannot challenge the doctor’s determination, the parent would have no way to defend their decision-making right or to defend their child, who may be deceived or misguided.
It is also possible that the judges thought that any deficiencies in the consent form were compensated for by conversations AB had with her doctors. However, the father’s lawyers argued at the hearing that if that were the case, it should be incumbent on the other side to prove it, that they had failed to do so, and that they had rebuffed his efforts to discover what they had discussed with his daughter. ARPA did not have access to the record (the affidavits and other documentary evidence) in this hearing.
What next?
For now, ARPA’s legal team awaits the Court of Appeal’s written ruling, which will explain why the Court decided Issue #1 as it did, and will also contain the Court’s decision on Issue #2.
Our concern, of course, is that the Court’s decision may seem to signal that the Consent Form is just fine. We hope that the Court, in its written reasons, will at least indicate that there is room for improvement.
Meanwhile, ARPA is considering next steps in terms of public and political advocacy. Are there ways – besides raising awareness – to protect other families from falling into the same situation as AB and CD? Maybe the Clinic could be persuaded to seriously beef up its consent form, which may deter some parents (who ordinarily are asked to sign the form) and young people from going ahead with “hormone therapy”?
Let me know what you think – [email protected].
Citations / further reading
Here is the Gender Clinic’s Informed Consent Form.
For more about gender dysphoria (specifically late / rapid onset dysphoria), see The Economist.
For more on why “sex reassignment” is not truly possible, see The Heritage Foundation.
For more about the side effects of Lupron (used off-label as puberty blocker), see StatNews.
For more about transgenderism as a medical and public policy issue, see ARPA’s Policy Report.
B.C.’s law regarding minors consenting to treatment is found in section 17 of the Infants Act.
