Disclaimer:  The views, opinions, and findings expressed in this article are those of the author and do not necessarily reflect the position or policy of the Editorial Board or Management of JLTP or the Governing Body of Young Lawyers Forum.

I. Introduction

Gender reassignment surgery is a medical procedure that allows Transgender individuals to align their physical characteristics with their self-perceived gender identity. This surgery could be a life-affirming and transformative step towards self-acceptance and well-being. However, when it comes to minors, the discussion is complex and sparks intense debates on the appropriateness and safety of providing such procedures to individuals below the age of consent. On one side, the proponents argue the benefits it provides in alleviating gender dysphoria[1], while opponents are concerned about the irreversible nature of such surgery, their incapacity to provide informed consent and potential long-term effects on mental and physical well-being[2]. In this paper, we’ll delve into the complexities surrounding minors and gender reassignment surgery and legal, medical, and ethical considerations in this regard while also respecting the rights of young individuals in the context of gender identity and healthcare access.

2. Informed Consent: Meaning and Concept

In medical jurisprudence, it is widely accepted that an individual can only agree to medical treatment, including surgeries if they are competent and capable. The Hon’ble Supreme Court of India in the case Samira Kohli vs. Dr. Prabha Manchada & anr[3], in para 32 of the judgment held that “All treatments including surgery require consent. The person consenting should have the capacity and competence to consent, should consent voluntarily and should have adequate information concerning the nature of his treatment.” [4]This emphasizes the importance of “consent “in any medical procedure. This genuinely ensures the protection of human rights and minors who are legally too young to give consent are also individuals of the society who have been vested with these rights. Section 2(i) of the Mental Healthcare Act, 2017 defines “informed consent”, as consent obtained from a person after being given adequate information. A person is said to have a capacity only when he/she can understand the required information, retain it and use it for decision-making. It also depends on what is being consented to, more serious the treatment, the more required the capacity. In Re Jane[5], the court held that a minor girl, 17, lacked the mental capacity to make an abortion decision.

In an early U.S. case, Smith v. Seibly[6], a doctrine called Mature Minor was established according to which a minor could give consent or make a decision regarding medical procedures if he/she can understand the risks and necessary information regarding the treatment. This doctrine has been widely accepted in many countries and has been consistently applied in cases where a minor (1) is near the age of majority (15 years or older) (2) when he/she displays the required capacity (3) where the treatment is not “serious”.[7]

In Younts v. St. Francis Hosp. & school of Nursing[8] the court stated that the minor’s awareness of the benefits and risks of the medical procedure was used to determine whether or not they could give informed consent.

The nature of Gender Reassignment surgery is serious in the sense that it’s not reversible and hence requires a huge amount of maturity which is usually lacking in cases of Minors. Also, a report published by the Delhi Medical Council dated 25th April 2018, stated that a minor is not legally competent to give consent and any person of sound mind above the age of legal majority can give consent. [9]

However, the Supreme Court of Canada recognized the mature minor doctrine in A.C. v. Manitoba[10]. In ruling A.C. v. Manitoba found that children may make decisions about their medical treatment. In the majority opinion, Justice Rosalie Abella wrote: "The result of this [decision] is that young people under 16 will have the right to demonstrate mature medical decisional capacity. ...If, after a careful analysis of the young person’s ability to exercise mature and independent judgment, the court is persuaded that the necessary level of maturity exists, the young person’s views ought to be respected."

Also, in Planned Parenthood of Central Missouri v. Danforth the court held that, without parental permission, a minor who is old enough to comprehend the implications of medical decisions may make them.

It is the welfare and best interest of the minor that is mostly taken into paramount consideration in any matter concerning a minor. Thus, it could be on conclusion said that it’s the maturity and rational capacity of a minor that matters the most in cases of giving informed consent regarding treatments.

3. Sex Reassignment Surgery and Age implications

Today, many people prefer to undergo Gender affirmation surgery to overcome Gender incongruence. However, SRS can only be performed with the consent of the patient or Guardian. The High Court of Madras while deciding Arunkumar and Sreeja v. Inspector General of Registration [11]observed that transgender youngsters should be given adequate time to comprehend their real gender identity and the means to develop and grow. Medical procedures should only be performed after a comprehensive assessment of the patient's capacity to give informed consent. Following this judgment, the Tamil Nadu Govt. passed a G.O. to ban intersex minors undergoing Sex Reassignment Surgery.

The World Health Organization has published a report titled “Sexual Health, Human Rights and the Law”. It suggests “delaying intersex genital mutilation (IGM) until the affected individuals are mature enough to make their own decisions”. The passage from the aforementioned report that follows will speak for itself: “.... A major concern for intersex people is that so-called sex normalizing procedures are often undertaken during their infancy and childhood... As a result, such children may be subjected to medically unnecessary, often irreversible, interventions that may have lifelong consequences for their physical and mental health, including irreversible termination of all or some of their reproductive and sexual capacity. Such procedures, however, are sometimes proposed on the basis of weak evidence, without discussing and considering alternative solutions”[12]

Section 15 of the Transgender Persons (Protection of Rights) Act, 2019 calls on the government to release a health manual related to SRS in compliance with the World Professional Association for Transgender Health, and it may rely on the eligibility criteria stated in the World Professional Association for Transgender Health (version 7). Under the head “criteria for surgeries” capacity to make a fully informed decision and to consent to treatment and the Age of majority in a given country are mentioned as criteria for undergoing GAS surgeries. Also, in Version 8 of WPATH guidelines, 2022 recommends that a person seeking sex reassignment surgery should undergo a minimum of 12 months of continuous hormone therapy and regular psychotherapy. [13]

Following the Judgment given in the Arunkumar and Sreeja case, the Government of Tamil Nadu issued a GO order that bans intersex minors from undergoing Gender reassignment Surgery. Even in Tingley v. Ferguson[14], the court held that Washington’s ban on Intersex children conversion therapy was valid.

But surprisingly in Re Carla[15], the Australian Family Court allowed an SRS for a child aged 5. It was stated by the court that the SRS done before attaining puberty would be more favourable as it reduces mental health risks. Also, it is favourable for the reason that it could potentially reduce Gender dysphoria as at puberty a person experiences even more distress due to the incongruence between secondary sexual Physical characteristics and the self-perceived gender identity.

4. Doctrine of Gillick Competence and the Principle of Best Interest

The doctrine of Gillick competence was actually evolved in the case Gillick v. West Norfolk and Wisbech Area Health Authority[16], and this is used in the medical jurisprudence to decide if a person under the age of 16 years is able to give consent to their own medical treatment without the consent or acknowledgement of parents.

A similar provision of law appears in Scotland by the Age of Legal Capacity (Scotland) Act 1991. According to Sec. 2(4) of the said act a person below 16 years can consent to any medical treatments including surgery if he’s capable enough to understand the possible consequences and effects of the surgery.

In Secretary of the Department of Health and Community Services v JWB[17], the High Court of Australia upheld the concept of Gillick competence as held in Gillick v West Norfolk and Wisbech Area Health Authority. In the case, the HC ruled that “even as dad and mom may additionally consent to clinical treatment for his or her kids, the authority does now not enlarge to remedy now not in the child's nice interests. Additionally, the court held that if the clinical remedy has sterilization as its primary goal, the dad and mom no longer have the authority to consent on behalf of their minor. “

According to Art 3 of the UN Convention on Child Rights, “In all actions concerning children, the best interests of the child shall be a primary consideration”. Also, in Ashu Dutt v Aneesha Dutt, [18]it was held that the paramount consideration is the welfare of the child and not the legal rights of the parents and also held that children are not chattel or property of parents.

Chapter 2 of the Juvenile Justice Act gives the general principle of care and protection of children where it mentions the principle of best interest according to which any action concerning children the best interest of the child should be the prime consideration.

5. Right to Decisional autonomy of a minor and concept of Parental Consent

In Suchitha Srivastav v. Chandigarh Administration[19], SC allowed a minor’s Informed decision to undergo Medical Termination of Pregnancy under the MTP act considering the best interest of the Minor and her Right to bodily Autonomy.

As held in the NALSA case[20], the right to bodily autonomy is a fundamental right and it was observed that “Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc.”

Under Transgender Persons Act, 2019[21] any member who wishes to identify as transgender person has the right to self-perceive his gender irrespective of what age group he/she belongs to. This article guarantees the right to recognition of such self-perceived identity.

Even the international frameworks acknowledge the significance of allowing individuals, including children, to express themselves freely and have their opinions and perspectives respected, regardless of their sexual orientation or gender identity. For example:

Article 12[22] guarantees children the right to develop their own perspectives and express them freely in all matters that concern them. It emphasizes that the child's opinions should be given appropriate consideration based on their age and level of maturity. Likewise, Article 13 of the Convention recognizes the child's freedom of expression, enabling them to seek, receive, and share information and ideas of all kinds, without any limitations based on borders.

The Yogyakarta Principles encompass a comprehensive range of human rights standards and their application to sexual orientation and gender identity. Principle 1 asserts that individuals of all sexual orientations and gender identities are entitled to the full enjoyment of human rights. Furthermore, Principle 19 underscores the right to freedom of thought and expression for all individuals, irrespective of their sexual orientation or gender identity.[23]

Moreover the Universal Declaration of Human Rights[24] and International Covenant on Civil and Political Rights,[25]  clearly put forth the right to life being inherent and protected under law without any arbitrary denial to any human irrespective of his race, creed, gender or place of birth. Furthermore, it acknowledges the right to recognition as a person before the law for each individual without any discrimination. ICCPR[26] protects all humans from arbitrary or unlawful interference with regard to their privacy.

Taking a broad look at all of these rights leads us to the conclusion that even as a minor, a person is still entitled to these rights as a part of this community and cannot be prevented from making decisions about their body because they are legally too young. So, is it that a minor can directly take charge of the decisional autonomy for their medical treatment? Certainly not. Here comes the necessity for us to understand the concept of parental consent and rights in matters of treatment for their children.

Art. 18 of the UN CRC read, "Parents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child.”. Also, Art.3 and 5 of the convention say that in ensuring a child’s protection and best interest parent’s or Legal guardians’ duties and rights’ has a massive role in a manner consistent with the evolving capacities of the child and appropriate direction and guidance. Even in Suchita Srivastava case(supra), though the minor in this case was an orphan it was the court that decided on behalf of the minor in the capacity of “parens patriae”. Parens patriae means parent of the nation and is the inherent power of the state to provide protection to persons non sui juris like minors, insane and incompetent persons.

In the medical context, treating a minor without parental consent can be a complex issue. Generally, it's advisable and often required for medical professionals to seek parental or guardian consent before providing medical treatment to a minor. This is to ensure that the minor's best interests are upheld and that appropriate decisions are made on their behalf.

6. Positive Side of SRS done before Puberty

Ø  Alleviation of Gender Dysphoria: When a person's gender identification does not correspond with their physical appearance, they may experience gender dysphoria, which is a distressing or uncomfortable state. Early intervention surgeries can help alleviate this distress and contribute to an improved sense of well-being and mental health for transgender individuals.

Ø  Enhanced Psychological Well-being: Early surgery can help transgender people feel better mentally by easing their anxiety, depression, and other psychological issues related to gender Dysphoria. Aligning their physical appearance with their gender identity can improve self-esteem and overall quality of life.

Ø  Development of Self-Confidence: By undergoing gender affirmation surgeries before puberty, individuals can grow up with a body that aligns with their gender identity. This can contribute to the development of self-confidence and a stronger sense of identity during the crucial formative years.

Ø  Prevention of Secondary Sex Characteristics: Early intervention surgeries can prevent the development of secondary sex characteristics (such as facial hair growth, deepening voice, breast development, etc.) that may cause distress to transgender individuals when they do not align with their gender identity.

Ø  Reduced Need for Additional Surgeries: In some cases, early intervention surgeries can lead to a reduced need for additional surgical procedures in the future. This can be particularly beneficial in terms of both physical and emotional recovery.

Ø  Improved Social Integration: Early surgeries can allow transgender individuals to enter puberty and adolescence without the challenges of navigating physical changes that do not align with their identity. This can result in improved social integration, better peer relationships, and a more positive overall social experience.[27]

7. Negative Side of SRS done for Puberty

Ø  Physical and Emotional Development: Performing gender affirmation surgery before puberty might impact the individual's physical and emotional development. Puberty brings about significant changes in the body, including growth spurts and the development of secondary sexual characteristics. Surgery performed before these changes might lead to a body that does not align with the individual's age-appropriate physical development, which could lead to social and psychological challenges.

Ø  Long-Term Psychological Impact: While gender affirmation surgery can have positive psychological effects, undergoing such a major procedure at a young age might also lead to unexpected psychological challenges. Individuals might experience regret or dissatisfaction with the results as they grow older, and their understanding of their gender identity matures.

Ø  Limited Informed Consent: Children and adolescents might not have the same level of informed consent as adults, as they might not fully comprehend the long-term implications of gender affirmation surgery. There is a concern that they might make irreversible decisions without fully understanding the potential consequences.

Ø  Surgical Complications: Like any surgical procedure, gender affirmation surgery carries risks, including infection, scarring, pain, and potential complications related to anaesthesia. Younger individuals might be more vulnerable to certain surgical risks due to their developing bodies.

Ø  Changes in Gender Identity: Gender identity can be fluid, especially during childhood and adolescence. Some individuals who identify as transgender at a young age might not continue to identify that way as they grow older. Performing gender affirmation surgery before a stable gender identity is established could lead to future identity conflicts and distress.

Ø  Ethical and Legal Concerns: There are ethical and legal debates about the appropriate age for gender affirmation surgery in minors. Balancing the rights of individuals to express their gender identity with the need for thorough evaluation and informed consent is a complex issue.[28]

 8. Conclusion

In conclusion, the issue of minors and gender reassignment surgery is a nuanced one, touching upon legal, medical, ethical, and psychological aspects. Balancing the rights of minors to express their gender identity with their capacity to make informed decisions requires careful consideration. The collaboration between medical professionals, legal experts, and mental health practitioners is vital in ensuring that decisions are made in the minor's best interests. While legal frameworks differ, the common thread is the emphasis on comprehensive evaluation, informed consent, and a holistic approach that prioritizes the minor's well-being. As society continues to evolve, an empathetic and collaborative approach will help navigate the challenges posed by minors seeking gender affirmation surgery.

References:

[1] August Samie, Gender-affirming surgery, BRITANNICA (July 03, 2023, 4:40 PM), https://www.britannica.com/science/gender-affirming-surgery

[2] Richard P. Fitzgibbons, Transsexual attractions and sexual reassignment surgery: Risks and potential risks, 82(4) LINACRE QUARTERLY 337, 342 (2015)

[3] Samira Kohli vs. Dr Prabha Manchanda, 2008 AIR SC 855

[4] Id.

[5] Re Jane , 566 N.E 2d 1181( Ohio 1990)

[6] Smith v Seibly, 72 Wn.2d 16, 431 P.2d 719 (1967)

[7] Lawrence Schlam & Joseph P. Wood, Informed Consent to the Medical Treatment of Minors: Law & Practice, 10 HEALTH MATRIX 141 (2000)3

[8] Younts v. St. Francis Hosp. & School of Nursing ,Inc., 469 P.2d 330, 337 (1970)

[9] Dr. Arun Gupta, How to avoid Litigation in medical practices, Delhi Medical Council, DELHI MEDICAL COUNCIL (July 10, 2023, 6:30 PM), https://delhimedicalcouncil.org/pdf/validinformedconsent.pdf

[10] A.C. v. Manitoba, 2009 SCC 30

[11] Arun Kumar and Sreeja vs. Inspector General of Registration ,W.P. (MD)No.4125 of 2019

[12] Sexual health, human rights and the law, WORLD HEALTH ORGANIZATION (July 05, 2023, 5:34 PM), https://iris.who.int/bitstream/handle/10665/175556/9789241564984_eng.pdf?sequence=1

[13] Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, WPATH (July 05, 2023, 7:00 PM), https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English.pdf

[14] Tingley v. Ferguson, 9th US Circuit Court of Appeals No. 21-35815

[15] RE: CARLA (MEDICAL PROCEDURE) [2016] FamCA 7

[16] Gillick v West Norfolk and Wisbech Area Health Authority, [1986] AC 112

[17] Secretary of the Department of Health and Community Services v JWB, (1992) 175 CLR 218

[18] Ashu Dutt v Aneesha Dutt, Family court appeal no. 17 of 2021

[19] Suchitha Srivastav v. Chandigarh Administration, AIR 2009 9 SCC 1

[20] National Legal Services Authority v Union of India and Ors, AIR 2014 SC 1863

[21] Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India)

[22] UNIVERSAL DECLARATION OF HUMAN RIGHTS, art. 12

[23] Principles on the application of International Human Rights Law in relation to Sexual orientation and Gender Identity, REF WORLD (July 09, 2023, 5:30 PM), https://www.refworld.org/pdfid/48244e602.pdf

[24] UNIVERSAL DECLARATION OF HUMAN RIGHTS, art. 6

[25] INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, art. 16

[26] INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, art. 17

[27] Annelou L C de Vries, Jenifer K McGuire, Thomas D. Steensma, Eva C F Wagenaar, Theo A H Doreleijers, Peggy T. Cohen-Kettenis, Young adult psychological outcome after puberty suppression and gender reassignment, PEDIATRICS (July 11, 2023, 7:00 PM), http://pediatrics.aappublications.org/cgi/pmidlookup?view=long&pmid=25201798

[28] Id.