In 2018, the Swedish government proposed a new law that, if passed, will allow 15- to 18-year-old minors to undergo genital surgery if they wish, and if the procedure has been approved by the National Board of Health and Welfare. Permission from parents will not be an absolute requirement if the health service deems a self-identified transgender adolescent is able to fully comprehend the nature and consequences of the medical procedure. But while this law is being touted as progressive, it is not.
Like all Western countries, the UK is undergoing proposed changes to laws surrounding the rights of adults who identify as transgender. Indeed, it was at the forefront of constituting adult transgenderism as a dimension of legal personhood with the Gender Recognition Act (GRA) 2004. However, we “lag behind” Sweden in its campaign to introduce genital surgery as a child’s right.
Although children aged 16 and over are deemed by UK law to be competent under certain circumstances to consent to medical or surgical treatment, the child’s autonomy in the matter of genital surgery is restricted because of the invasive and irreversible nature of the procedure. Despite this difference between the two countries, the UK embraces the principle behind Swedish law reform: that “gender identity” is inherent and that a child can be born in “the wrong body;” that the child has a legal right to “gender identity” as a fundamental aspect of its personhood; and that puberty blockers and cross-sex hormones can be administered to facilitate the child’s gender self-affirmation.
Trans-affirmative proponents of genital surgery argue that state failure to legally ratify this “right” should be in contravention of children’s human rights, as set out in the Convention on the Rights of the Child (UNCRC). They insist adult transgender rights are commensurable with children’s rights and are working to include the child’s “right” to genital surgery in the UNCRC definition of the rights of the child.
The Yogyakarta Principles for law reform, written by academics and trans lobbyists, advocate that gender identity replace sex in law. In the document, “transgender rights” are defined as politically progressive and intersectional, alongside the rights of other oppressed or marginalized groups, such as women and children. The Principles state:
All human beings are born free and equal in dignity and rights. All human rights are universal, interdependent, indivisible, and interrelated… and gender identity [is] integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse.”
This sounds well and good, but when “gender identity” is defined, things become vague, as the distinction between sex and gender is blurred, and the definition reflects an essentialist, stereotypical notion of gender:
Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical, or other means) and other expressions of gender, including dress, speech, and mannerisms.”
The seemingly innocuous, all-inclusive concept of “gender identity” has been embraced by the left as progressive and now supersedes in popularity the feminist model of the past that suggested people break away from gender roles, not embrace them as innate. In the latter model, sex (i.e. whether one is born female or male) is not “assigned,” but is a biological reality, and gender is not “each person’s deeply felt internal and individual experience,” which must be affirmed, but the structural, hierarchical stereotypes society maps onto biological sex. Transgender activists have successfully campaigned for “gender identity” to be viewed as a more sophisticated analysis of gender, which has now been established as a civil right and a dimension of legal personhood.
Belief that “gender identity” marks a sea change for human rights provides the grounds for the state’s proposed law reform. Advocates insist that “no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age… shall be a prerequisite to change one’s name, legal sex, or gender.” They argue this approach to children is part of the obligation of the state to “guarantee and protect the rights of everyone, including all children, to bodily and mental integrity, autonomy, and self-determination.” But the Yogyakarta Principles also state:
Bearing in mind the child’s right to life, non-discrimination, the best interests of the child, and respect for the child’s views, this means a commitment to ensure that children are fully consulted and informed regarding any modifications to their sex characteristics… and ensure that any such modifications are consented to by the child concerned in a manner consistent with the child’s evolving capacity.”
This approach might read as laudable, but there are many questions that need to be considered before we jump on board.
First, the rights of children to have their best interests prioritized begs the question of what their best interests are and who determines them. From a gender critical perspective, the idea that the state mandates its national health system to require no “psycho-medical diagnosis” and no “minimum or maximum age” does not make children’s interests paramount. Rather, it prioritizes the political interests of transgender adults to redefine transgenderism as a “born” rather than a psychological condition. The Gender Identity Development Service (GIDS), a National Health Service UK specialist clinic for gender dysphoric children, views youth identifying as transgender as a phenomenon that encompasses a wide variety of psychological presentations that cannot be explained by one factor, namely a certainty of “true” gender arising from an inner feeling. “Gender dysphoria” — unhappiness with one’s gender or sex — is the only condition for which a doctor prescribes or performs surgery where there is no test and the diagnosis is self-reported. There is no credible neuro-scientific evidence for the narrative that a natal male or female brain exists, let alone a “pink” or “blue” brain that can be located in the “wrong” body. A senior consultant at the GIDS acknowledges, “The meaning of trans rests on no demonstrable foundational truths but is constantly being shaped and re-shaped in our social world.”
Second, the child’s ability to consent to genital surgery only has value if he or she has accurate information about the nature of procedures and their adverse health effects. The child needs to be informed that genital surgery, aside from inevitable sterility, will have complex consequences and include the need for continuous hormone use and reliance on lifelong medical care. Informed consent must include the views of clinicians and endocrinologists who, even though they carry out medical procedures, point to the inevitable serious physical harm of cross-sex hormones. The child needs to be made aware that procedures, including the prescribed hormones that accompany genital surgery, will only create the appearance of sexual characteristics that differ from her or his chromosomal makeup. The human body is a whole organism, and seeks homeostasis, or internal stability. Interventions — whether surgical or hormonal — cannot actually create the desired sexed body, but can only modify the appearance and functioning of the child’s own sexed body. Surgery on male bodies to create a simulated vagina requires ongoing dilation to keep the cavity from closing; surgery on female bodies to produce a penis cannot create a fully functioning and sensate organ. The genitals of the other sex can never truly be created, and surgery will result in loss of sexual sensation. Furthermore, the child’s consent to genital surgery only has value if other models, such as the gender critical model, are made available as ways to understand or address their gender discomfort. The adolescent should also be made aware that detransitioned persons advocate for alternative care, support, and perspectives that do not involve hormones and surgery.
Finally, the new law would ultimately place genital surgery outside of the control of the National Board of Health and Welfare, since under the newly conceived rights, the service would be compelled to concede all decision-making to the children. The obligation to perform genital surgery would supersede any clinical misgivings, and the purpose of the support given would not be medical but rather to facilitate the child’s self-determination. A child’s right to self-determination needs to be balanced by adult oversight. Can a 15-year-old truly predict the consequences their teenage decision-making will have on their future adult selves? The ethical issue of whether the child can consent to genital surgery goes beyond an assessment of whether the adolescent has mental capacity and can express independent wishes. Children are social beings as well as independent actors who take up normative identities made available to them within the prevalent culture and which may lead them to wish for and consent to harmful treatments. The media, the internet, and trans-affirmative educational programs that provide workshops about “gender identity” for school teachers and children as young as four, collectively provide the background to children’s everyday lives. The child’s capacity for consent is not sufficient to counter systemic attitudes and beliefs, which may well account for the current statistical prevalence of girls wanting to transition. In combination, these influences construct a definitive set of “truths” about “gender identity” that, ironically, reproduce a catalogue of gender stereotypes that confirm to children they are transgender, that medical reassignment of their sexed body will resolve gender discomfort, and that without social and physical intervention they will be likely to self-harm and probably commit suicide.
Under these circumstances, clinicians are unable to operate within the medical ethos to which they aspire, namely “first do no harm.” The affirmative model blurs the distinction between sex and gender such that “gender identity” as a “born” property enables the state to countenance law reform, even though the inevitable result will make children sterile and consign them to a lifelong pursuit of difficult and painful physical and psychological transitioning that will uphold and deepen socially constructed gender-based oppression and never actually change a person’s biological sex.
The transgender field is highly politicized, and the rise of identity politics means that any suggestion that “gender identity” is psychological and sociological is automatically construed as transphobic. The general climate of fear — fear of causing offence, fear of being accused of transphobia, or, for parents, the horrendous fear they will lose their children if they refuse permission for surgery — means that reasoned debate has become almost impossible. Within the context of highly contested and unverifiable theories, the citizens of all democratic countries should be able to ask without reprisal: How free is the medical profession to formulate its own views about performing genital surgery, given the current political climate? Who has the right to define sex and gender that then informs clinical practice? Who decides what is politically progressive, and whose “truths” does the state authorize to create social policy upon?
Close inspection of the proposition made by trans activists that human rights based on “gender identity” are “universal, interdependent, indivisible, and interrelated” reveals this assertion to be misguided. If Sweden passes a law allowing 15- to 18-year-olds to undergo genital surgery, it will not signify the extension of children’s rights, but their egregious breach. That the abuse and sterilization of children’s bodies might soon be legally sanctioned in Sweden in the name of progressivism should alert us to the extreme dangers of transgender identity politics and lobby groups in the UK and other European countries, and the influence they exert on medical practice.