Shyanne Dougherty analyzes the poor justification and harmful impact of the new law against gender-affirming care in Tennessee.

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Bill Lee, the Governor of Tennessee, recently signed a law that bans drag shows that could be seen by minors, and the use of gender-affirming treatment in minors. The law will allow continued access to gender-affirming treatment until March 31 2024, for those whose treatment has begun or will have begun by July 1 2023. After March 31 2024, the law stipulates that the Attorney General may fine health care providers up to $25,000 per violation. Any patients reliant on such treatments after March 31 2024 must find alternative options for continued care, such as ordering treatment online or leaving the state. This law is a direct violation of the duties of healthcare providers, spreads an anti-transgender agenda, and raises ethical concerns related to equity, and justice, while potentially harming patients.

Photo Credit: Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. Image Description: Tennessee State Capitol building.

One critical consideration in favour of passing such a law is a common concept in healthcare: do minors have the capacity to make life-altering decisions about their healthcare? A reason for the law is that it supposedly protects vulnerable minors from making potentially irreversible decisions about their body while they lack the maturity to make such decisions. This argument might have merit when considering the impulsive nature of children and the fact that childhood often involves instances of identity crises. However, some patients impacted by this law are in the mature minor category. Laws in many jurisdictions recognize that an age range exists where an individual is considered a mature minor, meaning they are mature enough to make informed decisions about their health and well-being. Tennessee is no exception. According to the mature-minor-doctrine in Tennessee, patients under the age of 7 are considered to lack the capacity to make healthcare decisions and parental consent for any treatment is required. Between the ages of 7 and 14, there is a rebuttable presumption that the individual does not have the capacity; thus, physicians are to err on the side of parental consent for treatments. When dealing with patients between 14-18 years old, however, physicians should assume the patient has capacity and can provide treatment without parental consent unless there is reason to believe that the individual is not sufficiently mature to have a full understanding and appreciation of the consequences of their decision. Given that a medical criteria for starting on gender-affirming treatments like puberty blockers is the onset of puberty, which typically occurs between the ages of 8-13 for females, and 9-14 for males, the majority of patients seeking gender affirming care are either in the middle category where capacity is questionable, or in the mature minor category where capacity can be assumed.

Tennessee’s own rules about mature minors supports that mature minors can make sound health, well-being, medical care, and bodily decisions. Why, then, is there a need to ban gender-affirming care for all minors? Mature minors can make their own decisions to seek gender-affirming treatment. This gap between the state’s understanding of capacity for decision-making and the ban on gender-affirming care in minors suggests that the state’s goal is to push an agenda against the LGBTQ community rather than to protect vulnerable minors. The pairing in this bill between the ban of gender-affirming health services and ban on drag shows helps to support this claim.

This misalignment between protecting patients and the ban on gender-affirming care is also evident when examining how the ban infringes on the healthcare system’s critical principles and values. Physicians are required to treat patients with understanding, sympathy, and respect, to avoid doing harm, and to do good for their patients whenever possible. Denying an informed and fully capable patient their request for gender-affirming care for no medical reason is not respecting the individual’s autonomy and needs. This denial of gender-affirming care can also harm mental health and, consequentially, the patient’s overall well-being. There is a high correlation between gender dysphoria and depression and anxiety. Since gender dysphoria can be treated through gender-affirming treatments, this treatment is a critical component in maintaining patients’ mental health.

This anti-trans Tennessee law seems to put physicians in an untenable position of having to choose between fulfilling their ethical obligations to patients or self-preservation by avoiding legal action against them. The law also puts minors in a desperate situation where they are denied health care options to help alleviate gender dysphoria, which again, is highly correlated with depression and anxiety. Not only does this law remove a very viable treatment option for gender dysphoria-caused depression and anxiety, but it might also add to it. Many trans individuals have responded in the media with anxiety about whether they will be allowed to exist in public without being policed over their gender or identity presentation. The law has a far greater impact than merely banning gender-affirming care for minors; it spreads an anti-transgender message and could be a step toward criminalizing it.

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Shyanne Dougherty is a Master of Health Ethics student at Memorial University.