Minor Consent to "Gender Affirming Care."

Massachusetts v. Louisiana.

There have been recent reports about American hospitals performing sex reassignment surgeries on minors.    This got me wondering -- can a minor alone consent to having hormone therapy, puberty blockers or sex reassignment surgery? 

I recall from law school that if a minor enters into a contract, the contract is voidable by the minor.  The rationale being a minor is not fully aware of what he is getting himself into. 

This makes total sense if a 16-year-old signs a promissory note to buy a used car at 28% annual compounding interest payable over six years.  Most of us know that a minor cannot consent to sex with an adult.  It follows that a minor cannot also consent to an adult removing their sex organs, right?

Consent to medical treatment is generally a state law issue and each state handles it differently.    Being admitted to the bars of both Louisiana and Massachusetts (inactive), and because much of the recent news on this subject has been about Boston Children’s Hospital, I thought these two states might be good places to start.

Under Massachusetts law, minors are generally considered to lack the legal capacity to consent to medical treatment, unless the treatment is urgently and medically needed.  G. L. c. 112, §12F provides in pertinent part:

Section 12F. No physician, dentist or hospital shall be held liable for damages for failure to obtain consent of a parent, legal guardian, or other person having custody or control of a minor child, or of the spouse of a patient, to emergency examination and treatment, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient.

There are other exceptions and provisions to minor consent found in §12, such as obtaining psychotherapy or receiving blood transfusions. 

As for abortions, Massachusetts requires a minor under 16 to have at least one parent’s consent or obtain a “judicial bypass.” 

Somewhere Elizabeth Warren is fuming in her tipi. 

Here’s where it gets weird.  The Massachusetts Department of Children and Families (“DCF”) published its own guidelines and policies for transgender care for minors who are in the state’s custody and care.   And these guidelines discuss the minor’s consent to such medical treatment.

One such publication is the LGBTQ “A Guide for Working with Youth and Families published in 2015.”    As you can see, the DCF has no qualms about pushing transgender medical intervention on youth.  Consider these statements:

Some transgender youth who are close to reaching puberty, or after commencing puberty, may complement social transition with medical intervention that may include hormone suppressants, cross-gender hormone therapy, and, for a small number of young people, a range of gender-confirming surgeries.[1]

*          *          *

Gender transition may be medically indicated in some cases for transgender youth.[2]

When would gender transition or gender confirming surgeries ever be “medically indicated?” 

They go on:

Medical transition is likely to be the recommended treatment for some children and youth who are in DCF care or custody. As delaying medical transition holds the potential to create medical and mental health problems, support for gender transition might include the following:

- mental health assessment for eligibility and readiness;

- puberty-suppressing hormones at the start of puberty (typically age 10 to 13);

- cross-gender hormones;

- gender-affirming surgery.[3]

I have a 10 year old son. I would not let him choose our groceries let alone his gender. 

Also consider DCF’s Gender Affirming Policy 2021-01, titled “Gender Affirming Medication Consent Policy.”   The DCF’s consent process is reduced to a form which gathers the consent of the Department, minor, doctor and social worker, but not the parent or guardian:

Medical providers must seek consent from the Department before beginning gender affirmation medication for children/youth in state custody.[4]

*          *          *

[D]ocumentation of the wishes of the child/youth’s parent(s)/guardian(s) regarding treatment (see #3), except when termination of parental rights has occurred; and

*          *          *

“The social worker sends the completed request form to their Supervisor for review. Their Supervisor forwards the form to the Regional Nurse. The Regional Nurse reviews and sends the form to the Department’s Child Psychiatrist and Department’s Medical Director.  They review the form, seek out additional information or consultation as needed, and consent to the medication.[5]

The parent’s “wishes” are merely considered, but not determinative.  How comfortable are you with leaving the decision to medically sterilize or castrate your child to a social worker, a doctor and the Massachusetts government?

So how does my home state of Louisiana handle minor consent to medical treatment?  By treating the minor the same as an adult:

La. R.S. 40:1079.1. Minor’s Consent to Medical treatment

A.(1) Consent to the provision of medical or surgical care or services by a hospital or public clinic, or to the performance of medical or surgical care or services by a physician, licensed to practice medicine in this state, when executed by a minor who is or believes himself to be afflicted with an illness or disease, shall be valid and binding as if the minor had achieved his majority. Any such consent shall not be subject to a later disaffirmance by reason of his minority.

From the “Fundamentals of the Pediatric Consent Process in Louisiana”:

Louisiana is one of a small handful of states that allow minors, regardless of age or maturity, to consent to medical treatment. The public policy behind this allowance is obvious: the state wants its youngest citizens to be able to acquire necessary healthcare despite any negligence on the part of their parents in ensuring medical care for their children. This policy has led to a fairly generalized minor consent statute with little nuance, certainly none as to the ability of minors along the spectrum of age to weigh the considerations necessary for true, informed consent.[6]

Wait, what?  I admit, I wasn’t expecting this, Louisiana being much more conservative than Massachusetts.  The simpletons in the Louisiana legislature must have assumed children would only seek medical treatment when they needed immediate and ordinary medical help. 

Researching Louisiana gender clinics yields murky results.  If the clinic’s website discusses treating minors, it usually also discusses obtaining parental consent.  

Every parent knows that nobody cares for your child like you do.  I wonder if children under DCF care have been steered into irreversible “gender affirming care” by the people who work there.

---

[1] LGBTQ, “A Guide for Working with Youth and Families published in 2015,” p. D-16.   

[2] Id. At D-17 (emphasis added).

[3] Id. At D-17.

[4] DCF’s Gender Affirming Policy 2021-01, “Gender Affirming Medication Consent Policy,” p. 2.  

[5] Id. At p. 5.

[6]  “Fundamentals of the Pediatric Consent Process in Louisiana,” Ashley Peairs, MD, Meredith Miceli, JD, Michael G. White, MD, and Dominic S. Carollo, MD.