Medicalising children in the name of human rights
22nd September 2021
Professor Bernd Ahrbeck and Professor Marion Felder explore how governments across Europe are passing legislation designed to make it easier for people to change gender. Such laws often encompass children, paving the way for minors to begin the process of transtion regardless of parental consent.
The UK’s High Court ruled that children were highly unlikely to be able to consent to puberty-blocking medication, in a case brought by detransitioner Keira Bell. However, this judgement has recently been overturned by the Court of Appeal, once more paving the way for children to be medicalised in the name of human rights.
In May 2021, a new ‘gender self-determination’ bill was put before the German Parliament. The new legislation had emerged from two separate proposals, one from the FDP (Free Democratic Party) and one from the Green Party, but they did not fundamentally differ. Both were intended to improve the lives of transgender people and counteract discrimination by seeking to repeal an existing transsexual law and to permit greater freedom for gender self-identification. The new legislation would allow every citizen the legal right to change their gender identity up to once a year, through a mere speech act, and without any further verification. In addition, after reaching the age of 14, children would be able to decide for themselves whether to take hormones (the Green Party’s preference) or to undergo surgery (proposed by both the Green Party and FDP). Both proposals suggested that children would be able to consent to hormones or sugery themselves, without their parents permission. They would just need a green light from the courts.
Both party’s proposals were rejected by a majority. But, in the German Parliament, this does not signify the end of the matter. The bills are expected to be re-introduced at some point in the future. Other European countries have already passed similar legislation, including Malta, Ireland, Norway and Spain, while others, such as Sweden and the UK, rejected them.
The problem with self-identification
There are two main objections to gender self-identification laws. Feminists are sounding the alarm because they fear that women’s rights and protected spaces will be taken away from them. Female-only shelters, prisons, sports, changing rooms and toilets, for example, would all be put at risk if gender differences were effectively abolished.
In addition, such legal changes grant children and adolescents broad decision-making freedoms. This is highly contested, particularly when it comes to medical intervention. These concerns are reflected in the decision of the English High Court in the case of Kiera Bell, a young woman who medically transitioned while still a teenager but later came to regret her decision and de-transitioned.
The High Court’s judgement ruled that children under the age of 16 are not yet capable of fully understanding the consequences of medical gender transition including taking hormones which may lead to infertility and loss of bone mass. This ruling has been appealed and the judgement was overturned on September 19th, 2021. The courts’ main argument was that clinicians and doctors should establish Gillick competence (establishing competencies in a minor to make decisions regarding medical treatment) and not judges. They also ruled that puberty blockers are not an unlawful treatment.
It seems that a fundamental reorientation in our understanding of gender, childhood and consent is taking place. A new understanding of “gender identity” has been established, at least in parts of society, and has been presented to the public with great impact. When gender self-identification rights are extended to children under the age of 18, this poses serious consequences for the relationship between adults and children as well as for school and education.
The social theorist and philosopher Heather Brunskell-Evans points out that a human rights paradigm is dominating the explanation and treatment of children with gender dysphoria. One consequence of this is that complex bio-psycho-social aspects of gender dysphoria and its treatment are pushed to the side, if not declared meaningless. This leaves children’s health and welfare in a very vulnerable position.
Psychiatrically, in international classifications of health and disease, childhood ‘gender dysphoria’ is considered to be a marked incongruence between perceived and biological sex from birth. In order to meet this diagnostic criteria, the incongruence must cause considerable distress to the person affected.
Many Western countries have noted a dramatic increase in the numbers of people reported to be experiencing gender dysphoria. In the US, 1 in 10 teenagers in a study of an urban school district reported some kind of gender variant. In the UK, the number of diagnoses of gender dysphoria increased by 4500% in the years between 2009 and 2016, with girls at 80% in the majority.
There is, to date, no clear evidence as to why there is such an increase in young people with gender dysphoria. Those who view gender dysphoric youth simply through the lens of a human rights paradigm attribute the increase to a more open society – children and young people are less afraid of ‘coming out’ and revealing their true, authentic selves. This explanation is not terribly convincing. Lisa Littman’s study points to the phenomenon of social contagion among teenagers which is reinforced on social media by transgender role models and influencers as one possible cause of adolescents wanting to change their gender. It unclear why more girls than boys want to change sex, although as detransitioners report, pervasive sex stereotypes, and wanting to escape from them, seem to play a role.
The research is also far from reliable on the treatment of ‘gender dysphoria’. There have been few robust long-term studies. There is no doubt due to the complexity of the field. Some studies point to a difficult starting situation: over 60 percent of children and adolescents with ‘gender dysphoria’ suffer from mental health issues. Prescribing puberty suppression and then opposite-sex hormone treatment is controversial for children with severe psychopathological findings. Many questions remain unanswered. This is because most studies only refer to the short-term effects. High psychological stress can continue even after a sex change has taken place, as a renowned Swedish study involving 324 people has shown. Adults who underwent surgery between 1973 and 2003 had a much higher risk of suicide. The authors consider psychotherapeutic treatment to be indispensable even after sex reassignment surgery.
In view of the overall situation, there is little to suggest that these burdens are largely or even exclusively the result of social discrimination, as is asserted by some. Especially in a country like Sweden, which traditionally sees itself as particularly tolerant. A sex change must be irritating for quite different reasons. The feeling of not being housed in the right body almost inevitably creates inner tensions that are hardly ever easy to bear. In addition to psychological stress, there are various physical risks, among other things due to lifelong hormone treatment. Some hormonal treatment and surgical interventions may lead to sterility and a loss of libido can occur.
The Dutch Protocol
The Dutch Protocol, which was developed in the Netherlands, is recognised in many Western countries as the standard treatment for ‘gender dysphoria’. The individual treatment steps are: first a social transition (in clothing, name, speech), followed by suppression of puberty though hormone treatment at the age of 12, then the administration of cross sex hormones at the age of 16 and finally a surgical sex change at 18. This corresponds to the currently valid national and international recommendations, which are, however, increasingly scientifically controversial.
The original thinking behind prescribing puberty blockers was that stopping puberty could give children and adolescents time to make a decision and not feel under pressure from their developing body. However, others argue, that by administering puberty blockers, an almost certain path is laid out for further interventions, such as cross-sex hormones and surgery, thus raising questions about the claim that puberty blockers are a reversible treatment.
If no puberty blockers are administered, 61-98% of youth with gender dysphoria are at peace with their biological sex after puberty.
This figure raises the question as to why all affected children should be treated with the recommendations of the Dutch Protocol. Not infrequently, a temporary gender dysphoria turns out to be a harbinger of a homosexual development, which is ultimately accompanied by a clear self-definition as a man or woman with a particular sexual orientation. The German child psychiatrist Alexander Korte describes a hastily initiated transition as a ‘homosexuality prevention programme’. Therefore, he and others think it is advantageous if puberty is experienced physically so that a better decision can be made, psycho-sexual development can occur.
Overall, the Dutch Protocol promotes ‘watchful waiting’, a cautious approach that is aware of the problems of such interventions. It assumes that practitioners should not react too quickly: uncertainties about gender identity should be endured at least until the onset of puberty. No medical intervention should be carried out on children under the age of 12, and therefore no hormone therapy should be given. Psychotherapeutic support is considered necessary as part of the overall process.
Nevertheless, even according to the Dutch Protocol, serious decisions can still be made at an early age. It can lead to significant and perhaps irreversible steps being taken. Even social transition is not as harmless as it may initially appear. Facts are created which are difficult to retreat from.
In recent years, activists, scientists and experts have called for flexibility in the age limits for hormone treatment and surgery. Ultimately, this means that intervention can take place even earlier. There are now reported to be children as young as 13 getting double mastectomies in some parts of the US.
This calls into question the (relative) caution still contained in the Dutch Protocol. In the background is a paradigm shift. Self-diagnosis at ever younger ages is the key factor, this is documented by various new draft laws and laws that have already been passed. The experience of those affected is regarded as an expression of a true inner state which must no longer be questioned. Distortions of perception and defensive processes are outside the scope of calculation. All that counts is an innate feeling of being of the opposite gender. The complex interplay of social, biological and psychological factors has become meaningless. This marks the beginning of a highly dangerous development.
Implications for education and treatment
In the last 25 years, an anthropological reorientation has taken place, which – starting from numerically small interest groups – has now developed into a powerful societal reality. The self-construction and with it the self-determination thesis, which includes not only gender, but also biological sex, serves as the guiding idea. It follows from this that irritations in gender classification are considered a desirable state, even if they lead to deep insecurity.
Children, young people and adults should no longer be forced to define themselves as boy or girl, man or woman. Within the framework of postulated self-construction, the desire for transformation plays a special role. It stands in contrast to the hyperflexible designs that promise any kind of freedom and an openness that knows no definitions. Now the exact opposite is supposed to be true: an undeniable implicit knowledge of one’s own condition/gender identity insists on a clear (new) gender affiliation. Since the medical gender ‘reassignment’ procedures turn children and young adults into life-long patients, it can be asked whether freedom is won or new dependencies with unforeseen consequences are created.
Since it is not clear what caused the dramatic increase in gender dysphoria in recent years and the evidence for the outcome of medical treatments is highly controversial, caution should be taken with treatment decisions. We are concerned that a one-size-fits-all approach to treatment is used, while the children and youth affected are a highly diverse group of individuals with unique situations and needs. Thorough assessment procedures and open-ended psychotherapy should be the first approach. In addition, questions of consent are paramount if not all the facts are in. How can children and youth even consent to procedures if the consequences are not fully known yet?
The judgement in the Keira Bell case reverberated throughout Europe and was the facilitator for further questioning medical treatments in gender dysphoria. The subsequent result of the appeal does not change that. The evidence and concerns are still valid.
Professor Bernd Ahrbeck PhD. is Professor of Psychoanalytic Pedagogy at the International Psychoanalytic University in Berlin, Germany. To contact Professor Ahrbeck email: firstname.lastname@example.org.
Professor Marion Felder, PhD. is Deputy Head of Education and Upbringing at Koblenz University of Applied Sciences, Germany. To contact Professor Felder email: email@example.com.