The UN Convention on the Rights of the Child grants minors a right to participate in decisions concerning their health and their bodies. Yet the degree of participation in medical decision-making practice remains deeply entangled with the tension between protection and self-determination. In the fields of intersex and trans healthcare for minors, this tension is most visible.
For a long time, so-called sex-‘normalising’ surgical and hormonal interventions were routinely performed on intersex children with the aim of aligning their bodies with societal norms of male or female bodies. Crucially, these decisions were, and still are, made by clinicians and parents, often shortly after birth or during early childhood, and thus in the absence of the child’s voice. Over the past decade, a range of international human rights bodies have urged states to prohibit non-medically necessary interventions on young intersex children, referring to bodily integrity, autonomy and the principle of informed consent. Six European countries have since introduced legislation.
Concurrently, gender-affirming care for trans youth has become highly polarised. Although international clinical guidelines require that such interventions be conditioned on informed consent provided by a sufficiently mature adolescent, the assessment of the minor’s decision-making capacity has itself become a focal point of criticism. For example, some critics claim that trans adolescents cannot meaningfully grasp the implications of these interventions for fertility, while others emphasise uncertainty regarding long-term outcomes to challenge the informed consent process.
Building on these parallel – yet divergent – developments, this presentation explores what current disputes surrounding the legitimacy of informed consent in the context of gender-affirming medical interventions for trans minors could imply for present and future legislative reforms concerning sex-‘normalising’ medical interventions for intersex minors. The focus will be on the required level of participation, assessment of decision-making capacity, procedural guarantees and related challenges.
