Bioethicists frequently deal with extraordinarily messy situations that also involve the courts. One might ask why an ethicist would write about a case of divorce, IVF, donor eggs and transgender transition. Nonetheless, these are all wrapped up in one hotly contested situation, becoming a test case for the legitimacy of transgender medicine in children, a valid medical ethics issue.
The James Younger case started in Spring, 2017 and thrust Texas into the national spotlight in October 2019. James is a seven-year-old twin. His parents are engaged in a bitter divorce and custody battle. According to James’ mother, a pediatrician, James does not identify as a boy, i.e., he sees himself as a girl. She dresses him as a girl and calls him by the name Luna when he is with her. According to various and conflicting reports, she is planning to start him on puberty-blocking drugs, one of the first steps in physically transitioning James to a girl. Adding to the complexity of this case, recently discovered court documents disclosed that the twins were IVF babies, using the father’s sperm and a donor’s egg. That means that James’ mother is not his biological mother.
When James is with his father, he dresses and acts like a boy. What we have here is an out of control custody battle that has been taken into the courts. On October 21, a jury awarded sole custody to James’ mother, effectively allowing her to proceed with James’ transition to Luna. But then on October 25, a judge overruled the jury and awarded custody to both parents. This means they need to agree on medical treatment.
Texas has very strong laws protecting children from physical and emotional abuse but, without evidence of injury that is observable and causing material impairment, this case falls into the gray zone.
Gender dysphoria or gender incongruence is defined by strong, persistent feelings of identification with another gender and discomfort with one’s own assigned gender and sex. For children, cross-gender behaviors may start between ages 2 and 4.
However, this is the same age at which most typically developing children begin showing gendered behaviors and interests. Gender atypical behavior is common among young children and could be part of normal development.
The fact that normal development can send confusing signals, such as children choosing gender-opposite roles in game-playing and beyond, raises ethical concerns when parents seriously consider and act upon their child beginning gender transition treatments.
Children are too young to legally consent but can assent, i.e. agree to, their parent’s direction. Guidelines for assent decision-making in research indicate that children 7-12 years old can assent using a simple form. But, is gender transition considered research?
There is a wealth of replicated research that tells us that 80–95% of children who experience a cross-sex identification in childhood will eventually desist and come to identify with their natal sex as adults.
The decision to implement puberty-blocking treatment is very difficult and cannot be made without ethical dilemmas. Both opponents and advocates of pubertal suppression are guided by the same ethical principles, beneficence, non-maleficence, and autonomy, but have different views on where these principles lead.
A unique and clear overview is necessary, and, to this day, it has not yet been elaborated. Considering that pubertal treatment in young children is relatively new and controversial, additional qualitative research and empirical studies are necessary for appropriate bioethical definitions.
Where does this leave James Younger? James is not only experiencing the trauma of his parent’s divorce but, here is a child who at birth was a boy, with a mother who believes the boy really wants to be a girl and a father who believes differently. As a result, at a vulnerable age, the “boy” is caught between the opposing positions of hostile parents. Piling on with even more complexity, the mother is not his biological mother. So, does that legally challenge the custody calculus in parenting?
Currently, the case is being looked into by the Texas Attorney General’s Office and the Texas Department of Family and Protective Services. The final decision will be left up to the judge.
Ultimately, there are a few paths for James at this young age. James remains with his natal sex and 1) desists at a later age, therefore consciously accepting his natal sex, growing up as a boy or 2) he follows this path but actually feels a disconnect with his gender, causing greater distress over the years. Alternatively, he could assent to beginning puberty suppression as an early-on step toward transition and 1) finds his true self or 2) he begins this process and feels a disconnect with the outcomes of gender transition. Any decision takes time to unfold and meanwhile, could cause psychological and/or physical harm if it is the wrong decision. But is one “less wrong?”
Sadly, even the bioethical principle that defines the best interests of such a young child is being debated. For now, James remains caught between warring parents and the unknowns of a fast-paced world that offers no evidence-based outcomes or consensus-driven longitudinal studies regarding the effects of gender transition in very young children. It is unequivocal, however, that the bioethical principle of non-maleficence, “do no harm,” remains fundamental to any decision made by medical professionals, the courts and most importantly, the parents.