A Bioethical Argument Against Medical Sex-Change Procedures in Children

Grounded in Neither Superstition nor Prejudice with Full Respect for Equal Protection

by John Otrompke

As I describe in my recent Lancet article, when the Endocrine Society issued its updated clinical practice guideline on sex change (“gender affirmation”) procedures late last fall, the authors acknowledged a trend that was already underway.

The guideline described four kinds of sex change procedures in children: social transitioning, the administration of puberty-blocking hormones, gender affirmation hormones, and surgery. 

Regarding social transitioning, I believe a child should be free to tell anyone they are whatever they want to be, to transition again, and to transition back, any time they want to. That’s a child’s inherent imaginative freedom, and obviously such a procedure is non-invasive and reversible. Unlike the authors of the guideline, I don’t even think consultation with a psychologist is important if a child undertakes social transitioning.

Puberty-blocking hormones administered in children as young as 9 years old prevent the child from undergoing puberty, while sex change hormones cause the child to develop sex characteristics of the other gender. 

But for bioethical reasons that have nothing to do with superstition, I hope, I am opposed to most of these medical procedures in children. I don’t believe I have a fundamental difference from many of my colleagues; I suspect the appearance of the seeming difference of opinion arises because many of my colleagues conflate the equal protection issue with the bioethical issue. I entirely support the equal protection of transgendered people, as well as LGBTQIA+ freedom and equality. 

But from a bioethics perspective, I don’t think these medical procedures should be performed in minors.

The Procedures Expose Children to Medical Risks

Here is why I take that view. Under current principles, a minor cannot consent to a medical procedure that presents some risk of harm. Nor can a parent give effective informed consent on behalf of a child to risky medical procedure which cannot benefit the child. For example, court cases that held that a child’s parents cannot consent to a child’s participation in risky non-therapeutic research, such as an experiment that may some day benefit patients with a disease the child does not have.

‘Gender affirmation’ procedures present certain risks. For example, any surgery presents certain non-negligible hazards, such as death under anesthesia. Other things can go wrong, such as stenosis of the vagina, or a failure of the neogenital nerve graft, leaving the patient without any feeling in their sex organs. The fact that these events may be rare doesn’t mean they aren’t serious. And what about other fatal adverse events during the procedure? 

Even the administration of hormone blockers, which advocates claim is reversible, comes with certain risks, because the delay of puberty is associated with weaker bones.

In addition, some studies have found that trans-women experience an increased risk for major adverse coronary events such as ischemic stroke and pulmonary embolism. 

What about regrets? The physicians who have performed the vast majority of sex change operations in Europe recently published very extensive data analyzing their large and longstanding cohort of almost 7,000 patients since 1972 for a variety of adverse events, including regret. The researchers found that a very small percentage (less than 1%) of patients reported regretting their sex change procedures, but they only looked at patients who underwent surgery (not those who just underwent hormone treatment). In my opinion, those findings were also flawed by the large proportion (36%) of patients who were lost to follow-up, and could not or would not report on whether they experienced any regret.

Most Children Desist Following Puberty

Given the risks that are attendant upon sex change procedures, do children enjoy any benefit from the procedures, such as puberty-blocking and sex change hormone treatment, or surgery, that a parent or guardian could weigh in deciding whether the risks are justified?

They do, according to advocates for gender affirmation medical treatment in children (such as Dr. Steve Rosenthal, MD, an author on the guideline), who say that children who undergo puberty in their “birth-assigned gender” have a substantially higher risk of suicide and anxiety, for example. (One study, however, which examined data from nearly 1,000 transwomen found that an increased risk of suicide was largely responsible for a risk of death that was roughly 1.5 times as great as that in the general population).

The other problem with this analysis is that the “gender dysphoria” (unhappiness with one’s birth-assigned gender) desists in 60 to 85% of children with the condition once they go through puberty. 

Advocates, and the authors of the guideline, argue that the high remission rate is due to the use of inaccurate methods of diagnosis. “Intense” anatomic dysphoria and “Real Life Experience” are the key to identifying those children whose dysphoria will persist into adulthood, according to some researchers. 

In my opinion, this points out the flawed nature of contemporary psychology, which I regard as a non-mature science of inherently subjective, intangible matters. Did health care providers use flawed methods to diagnose this condition in the past? How many children received the procedures based on false positives? Are the doctors really certain they have the diagnostic criteria right this time?

If the medical procedures are associated with certain non-negligible risks, and many children would enjoy no benefit from the procedure because the condition giving rise to the need for the procedure would resolve on its own if the child were to go undergo puberty without medical treatment, it seems to me that the procedures are experimental, and because they it is questionable whether they offer any medical benefit, it is unnecessary to undergo the invasive procedures in most children. 

Hence, I conclude that the administration of physical sex change procedures, including puberty-blocking hormones, is unethical in children. 

Thoughtful opinions to the contrary are welcome. If you disagree with me, you may write to me telling me why; if I like your commentary, I may publish it on my website.

Proposed Amendment to South Korea’s Constitution Refers to Animal Protection

Does the Nation Join a Historic March Toward Animal Rights?

by John Otrompke

On or about the first day of spring this year, the president of South Korea announced a proposed amendment to the country’s constitution. The lengthy proposal (a copy of the Korean text of which is on file with this author) addresses a variety of topics including presidential term limits, as well as animal protection.

If the amendment passes, Korea will join other countries such as Ecuador, Germany, India, and Switzerland whose constitutions specifically mention animal welfare. While the language in the South Korean proposal relating to animals is brief in relation to the entire text, it could have significant impact on efforts to improve the well-being of animals in Korea.

“The proposed amendment bill includes, for the first time in constitutional history, the nation’s responsibility for animal protection. Article 38 (3) stipulates that ‘the nation must implement a policy for the protection of animals,’” said Jooyeon Park, LLM, attorney and co-president of People for Nonhuman Rights.

But how useful will this proposed language be in addressing specific animal problems in Korea, such as the dog meat trade? Possibly very useful, experts say.

“It will make it possible to file a constitutional complaint against the government’s neglect to establish a policy and laws for fundamental and better animal welfare- for example, the insufficient law articles for wildlife protection. It is expected to be a stepping stone for securing the special status and rights of animals, as it recognizes ‘animal protection’ as a constitutional value,” explained Park, who is currently litigating an animal rights case involving dog slaughter in South Korea (see below).

A Growing Chorus of Opposition Among Enlightened Constitutions

“Animal welfare is an important part of our constitution in Austria, Germany and Switzerland. The constitutional provisions don’t provide a private citizen with the means of bringing a case, but at least he could cooperate with law enforcement bodies,” said Antoine Goetschel, JD, founder and president of the Global Animal Law Association in Zurich.

In Germany, the effect of such a constitutional provision is simple, explained Goetschel, who has drafted a UN convention on animal health and protection. “It just foresees since 2002 that the animals in the short term ought to be protected by the state. It sounds boring, but in those countries when animals are protected by the Constitution, for example, artists are not allowed to abuse animals to produce their artwork. It gives a balance to the animal, and the judge has to balance that out.”

By incorporating the concept of dignity into its constitution, however, Switzerland is quite unique. “The idea is to acknowledge an inherent or intrinsic value of animals, who are not to be reduced just to a machine, or instrumentalized,” added Goetschel, formerly the  prosecutor and chief animal welfare attorney for the canton of Zurich.
“Based on the Constitution, we have animal welfare legislation in Switzerland, and based on the legislation, we have an animal welfare ordinance which is quite large.” As an example, he said, the boiling of lobster is illegal in Switzerland.

“Constitutional provisions in Ecuador, Germany and Switzerland recognize animals as sentient beings and gives them a legal status that is more than mere property, but not fully human; a third legal status. This new constitutional amendment doesn’t state specific animal rights, but it is a big step,” added Minhee Janet Yoo, policy team manager for Coexistence of Animal Rights on Earth (CARE) in Seoul.

Growing Concern for Animals in South Korea

Under South Korean law, within 60 days of the proposal to amend the constitution, the National Assembly must vote on it, according to Park. If two-thirds of the National Assembly approve the bill, a referendum must be held within 30 days. But even if the constitution is amended, a separate law enactment is necessary for the distribution of dog meat to be prohibited, she said.

“The dog meat trade is not banned by the proposed new constitutional amendment, but it could make it possible to regulate inhumane industries in South Korea such as the dog meat trade,” noted Yoo of CARE.

Concern about dog meat, for example, has been growing among humanitarians around the world. (It is sometimes said that In the dog meat trade, dogs are sometimes slaughtered by hanging them by the neck until dead, because of a superstitious belief that the meat tastes better).

“Fortunately, there are less people who think that dog meat is Korean culture these days,” said the attorney, Park. “Recently, as the Korean population with companion animals highly increased up to over 10 million, it is seen that the awareness and movement for animal rights is on its rise; more than half a million people signed a petition put forward by the Humane Society and Korea Animal Rights Advocates (KARA) this year.

“Currently the dog meat trade is neither legal nor illegal under the law,” added Park. “The Livestock Products Sanitary Control Act, which regulates animal slaughter and distribution for edible purposes, excludes ‘dogs’ from the livestock subject to slaughter, so slaughtering dogs for food is not covered by the Act.”

Progress in Korea as Measured by Other Laws

However, another law, the Animal Protection Act, was also amended in March.
“The keeping, transportation, and slaughtering of dogs is done in ways that cause much unnecessary physical (as well as mental) suffering. The amended Animal Protection Act enables us to press definitive and specific charges of ‘physical suffering’ on the dog meat farmers and traders,” explained Yoo of CARE.

“Seals, as one of the endangered species, are protected by the Wildlife Protection and Management Act as endangered; thus it is punishable to capture, collect, damage or kill any of them. If an animal is not one of the endangered species, it is likely to be prohibited to kill it for fur by Animal Protection Act. For example, it is illegal to kill in front of other dogs or to kill by a cruel method under the Animal Protection Act,” said attorney Park.

“Most of the dog slaughters use an electric stick to kill a dog, so it must be considered as a ‘cruel’ method. However, judgments in the courts (and sometimes prosecution itself) may be different in judging this ‘cruelty.’ Also, prosecutors or courts tend not to strictly enforce the APA. Hence, the same slaughtering of a dog may have different results depending on the court. For example, even though a court once ruled that killing a dog using electric rods violated the APA, the other court recently decided that the same action is not illegal as they consider the method is not cruel, because of the fact that electric slaughter is also used in pigs.”

The question of whether slaughtering a dog by means of an electric pole is prohibited as cruel by Korea’s Animal Protection Act is currently pending before the Supreme Court of Korea, in a prosecutor-initiated case (2017-do-16732). (The link connects to a Korean language website concerning the case in the Court of Appeal).

Park’s organization, People for Nonhuman Rights, has filed an attorney’s written opinion with the court in that case, she noted.

Let’s Interpret the Lack of a Nobel Prize for Literature this Year as a Tribute to Leonard Cohen

While We're At It, Could Someone Bring a Trust Enforcement Action Against the Nobel Committee?

When the Swedish Academy announced on Friday, May 4, that there would be no Nobel Prize for literature awarded this year, it struck me that an entire 18 months had gone by since we lost Leonard Cohen. I rejoiced in Dylan’s receipt of the Prize in 2016 (for his songs of rebellion and romanticism, of course, not his spiritual contrition or whiskey), because his works played a memorable role in a very happy era in my life.

I also yearned for Cohen to get the Prize as well, for much the same reason. However, Cohen was a very different creature from Dylan, of course (although they worked in the same genre and locations and were contemporaries). For one thing, Cohen’s work in his youth was never sarcastic or bitter, and Cohen’s work is more consistently mysterious and full of tenderly romantic spirituality.

I don’t mean to be a Shiite about it (although I love partisanship in general), but Cohen deserved the Nobel Prize for literature for his songs every bit as much as Dylan did.

The Academy can chalk it up to scandal and “the currently diminished Academy and the reduced public confidence in the Academy" if they want to; they may even believe it.

However, I can’t conceive how something the Academy allegedly did wrong could entitle them to withhold all that money for another year. As far as I can see, old man Nobel told them to give the prize to the artist who created the greatest work “in an idealish direction” in the preceding year, and gave them no discretion to withhold the prize and the money based on their own behavior. In fact, that would have been fraught with moral hazard, as it would have presented an incentive toward wrong-doing on the Academy’s part.

So the Academy can explain the lack of an award this year however they’d like; as for you and I, let’s rest in peace in the knowledge that this year’s lack of a Nobel Prize for Literature award is a silent tribute to the late, great Leonard Cohen- in my opinion, one of the greatest English language artists of the last hundred years.

Kudos, Leonard!