The Role of the IACHR in Hormonal Treatments for Minors: An Urgent Call for Caution

[Juana Acosta-López is an Associate Professor at Universidad de La Sabana (Colombia).]

This post has been previously published in Spanish on the Agenda Estado de Derecho blog

Recently, a press release titled “IACHR warns against regressive measures in the field of health that impact trans and intersex youth in the United States of America” was issued. This statement is published in a context where there are legitimate concerns surrounding the transparency of the deliberation process involved in drafting such releases, the thoroughness of the review of pertinent documentation, and the voting and majority system employed by the IACHR to publish them. These concerns are particularly significant considering that these releases increasingly take positions on critical issues regarding the interpretation of the American Convention, which may entail potential obligations for the State. It is important to note that consensus within the international body on these matters has yet to be reached.

Apart from these concerns, I would like to highlight two problematic issues in this statement. Firstly, the apparent stance on access to puberty-blocking medications for minors, and secondly, the position that there can be no conscientious objection to the implementation of these treatments. Before delving into these points, it is important to clarify two premises. Firstly, the IACtHR has not made any pronouncement on these sensitive and controversial issues, and while the IACHR has addressed access to gender-affirming hormone treatments in some statements (which also require broader discussion and deliberation), none have explicitly addressed the specific situation of minors or the right to conscientious objection.

Secondly, although the statement seems to target the political and regulatory context of the United States, it is evident that its impact extends beyond this country to Latin American and Caribbean nations. The intention is to establish “standards” that can later be enforced through the mechanism of conventionality control.

Considering these premises, let’s address the first issue. The statement expresses concern about laws and policies that “restrict access to puberty-blocking medications (…) for trans individuals,” particularly highlighting the differential impact of some laws on the rights of children. This is an extremely delicate matter that warrants extensive, deliberative, and well-documented debate. Recent global scientific studies on this topic actually present differing findings. The IACHR could just as well express concern about the potential impacts and effects of puberty-blocking hormones on the rights of children, particularly their physical and mental health, which have already been shown to have irreversible consequences in the majority of cases.

In fact, a study published this year concludes that “systematic reviews of evidence for adolescents are consistent with long-term adult studies, which failed to show credible improvements in mental health and suggested a pattern of treatment-associated harms”. The study emphasizes the need to prioritize traditional principles of evidence-based medicine over arguments of social justice, given the future and well-being of young patients and their families.

The IACHR should take note that some of the harms associated with these treatments are precisely the ones the statement aims to prevent. As stated in the referenced scientific article, “[t]he longest-term studies, with the strongest methodologies, reported markedly increased morbidity and mortality and a persistently high risk of post-transition suicide among transitioned adults”. Consequently, countries like Finland, Sweden, France, Norway, and the United Kingdom are witnessing scientists and public health officials warning against the potential harm outweighing the benefits of these interventions. Hence, some countries are starting to reverse policies that previously deemed these treatments suitable for such cases and are cautioning about the serious consequences of artificially halting the natural puberty process through hormones. Indeed, long-term use of these hormones can lead to significant medical complications, including cancer development, bone and brain damage, infertility, liver toxicity, vaginal lacerations, blood pressure problems, organ dysfunction, and, of course, mental health implications.

In this context, the statement overlooks a crucial matter: the capacity of girls, boys, and adolescents to make such decisions. International law provides several examples where it is established that minors lack the capacity to consent to certain decisions. For instance, in the context of armed conflicts, the recruitment of minors – those under 18 years of age according to the Optional Protocol to the Convention on the Rights of the Child and 15 years of age according to Additional Protocols I and II to the Geneva Conventions, as well as customary law 136 – is prohibited even if there is the minor’s willingness, as they cannot reasonably provide informed consent.

Likewise, in the field of business and human rights, various international bodies (UNICEF, WHO, or UN Special Rapporteurs) have recommended restricting advertising of certain food and beverages to minors, recognizing that this population is highly influenced in consumption decisions.

However, when it comes to a decision as profound as undergoing invasive medical procedures to alter biological sex, the statement seems to assume that decisions should be deemed free and informed, and that the role of doctors is not to assist patients in discerning, but solely to “affirm,” under the risk of losing their jobs, jeopardizing their medical licenses, being labeled as transphobic, and facing professional ostracism.

Moving on to the second issue, the statement expresses concern that certain measures would allow “healthcare providers, including doctors and insurance companies, to reject medical services based on their religious beliefs”. In this regard, as we have highlighted on previous occasions, it is deeply concerning that the narrative reinforcing the idea that conscientious objection, a right protected under international conventions, is an obstacle to the protection of rights continues to be strengthened.

Nevertheless, it is reductionist to suggest that objections to affirmative gender identity treatments arise solely from offense to religious convictions. Expressions from healthcare professionals questioning the medical necessity of performing mastectomies on healthy organs, halting puberty through medications with multiple side effects, or conducting highly invasive procedures that have not demonstrated prevention of mental health issues, not only fall within the legitimate exercise of conscientious objection but also serve as a means to discuss matters that can gravely impact minors.

Therefore, there are still unresolved questions in this regard that require responsible debate. It is crucial for the IACHR to listen to all perspectives and not prematurely close the conversation. Some of these questions include: What is causing gender dysphoria, which was once an extremely rare phenomenon, to exponentially increase in recent years? Shouldn’t we reflect on the thousands of children and adolescents resorting to these treatments despite the scarcity of solid scientific evidence regarding their long-term safety and efficacy? Why should we assume that the emerging “trans identity” in increasingly younger children is authentic and will be lifelong, or that all variations of gender identity are healthy and should be “affirmed,” or that the only way to alleviate or prevent mental health issues is by altering the body at the earliest signs of puberty? Will we not take seriously the economic interests behind the growing number of clinics dedicated to hormonal or surgical treatments, including the over 17,480 mastectomies performed for gender affirmation procedures between 2016 and 2019 in the United States? Isn’t it alarming that out of these mastectomies, 1,114 were performed on adolescents, representing a 389% increase?

Lastly, I would like to draw attention to a closely related issue that was recently raised by Reem Alsalem, UN Special Rapporteur on violence against women. This topic requires an open space for dialogue, fully respecting freedom of expression, without the risk of anyone daring to express an opinion being automatically censored. It is concerning that even adults who have undergone hormonal and/or surgical transition processes and have publicly expressed the harm and impacts they have experienced, as well as the reasons for attempting to detransition, have been labeled as transphobic. This is unacceptable. Discussions on such profound matters cannot be reduced to a false pro-rights vs. anti-rights polarization.

In this regard, it is crucial to consider the words of the Special Rapporteur when she states that “it is important that people, including researchers and academic, who express their views on “gender affirming” interventions including for children are not silenced, threatened, or intimidated simply for holding and articulating such views. This is particularly important given the implications for vital issues such as safeguarding, participation and consent by children, and sex education. Measures that I find particularly concerning include reprisals such as censorship, legal harassment, (…) removal from social media platforms, speaking engagements and the refusal to publish research conclusions and articles.”

The Special Rapporteur’s statements are not only significant in terms of their content but also because they highlight that international law has not yet settled on the best and most legitimate responses to this highly complex social issue. Therefore, a call for prudence: it is not the role of the IACHR, especially through a press release, to convey the message that international obligations require states to guarantee puberty-blocking hormone treatments for minors or to restrict the exercise of conscientious objection regarding such treatments. This is definitely not the role of an international human rights body.

Photo of the author attributed to Niels Ackermann.