Transgender Youth, Adolescent Decisionmaking, and Roper v. Simmons

UCLA Law Review

Volumn 56, Issue 3, 2009, Pages 725-758

  Carroll, Maureen ^a  

^a NONE

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EID: 64949132939     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (216)

1. 543 U.S. 551 (2005).
2. This Comment uses the terms adolescents, minors, juveniles, and youth interchangeably when referring to individuals younger than eighteen years old.
3. See Donald L. Beschle, Cognitive Dissonance Revisited: Roper v. Simmons and the Issue of Adolescent Decision-Making Competence, 52 WAYNE L. REV. 1, 32 (2006) ("Many who would applaud the invocation of the Simmons rationale to limit the harshness of criminal law as applied to juveniles would object to the use of the same rationale to limit adolescent autonomy in those non-criminal contexts [involving reproductive rights and other types of health care decisions].");
4. Kimberly M. Mutcherson, Minor Discrepancies: Forging a Common Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal Responsibility, 6 nEV. L.J. 927,928 (2006) (describing the "potentially clashing views of adolescent decision-making capacity" embraced by juvenile justice advocates and adolescent healthcare advocates);
5. see also Larry Cunningham, A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law, 10 U.C. DAVIS J. JUV. L & pOL'Y 275,331 (2006) (noting the inconsistency of "the proposition that a minor is mature enough to make a major decision about whether to carry a baby to term, on the one hand, but developmentally incapable of deciding to avoid committing a capital offense, on the other hand").
6. See Beschle, supra note 3, at 32-41 (analyzing the potential impact of Roper in contexts outside of the criminal law);
7. W. Matt Nakajima, Note, Life or Death: How Roper v. Simmons Affects Juvenile Abortion Jurisprudence, 34 N. KY. L. REV. 389 (2007).
8. Roper, 543 U.S. at 569 ("In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.").
9. Such concerns are based on the possibility that accepting the Roper Court's view of adolescence might "compel the rejection of claims of adolescent autonomy" in other legal contexts. Beschle, supra note 3, at 32-33; see also Mutcherson, supra note 3, at 928 ("[E]mbracing one view of the developmental capacity of adolescents seems to preclude embracing the other."). Because autonomy arguments can be central to youth advocacy in multiple areas, including health care, custody, and education, see generally Elisa Poncz, Rethinking Child Advocacy After Roper v. Simmons: "Kids Are Just Different" and "Kids Are Like Adults" Advocacy Strategies, 6 CARDOZO PUB. L POL'Y & ETHICS J. 273 (2008), the rejection of autonomy arguments could have a negative impact on adolescent rights.
10. Cunningham, supra note 3, at 277 ("Congress, state legislatures, the Supreme Court, and state courts have created laws and decided cases without a comprehensive vision of what it means to be a child or how children think and behave. Particularly troublesome is the varying manner in which the question of psychological capacity has been addressed by decisionmakers, if at all."). But see Mutcherson, supra note 3, at 954 (noting the consistency among U.S. Supreme Court decisions finding that "young people are consistently flawed and generally immature whether they are committing capital crimes or seeking to terminate an unwanted pregnancy").
11. Cunningham, supra note 3, at 277 ("Some areas of the law view children as 'infants' who do not have the capacity to act⋯ Other areas of the law presume capacity in all instances or disregard the question of capacity altogether.").
12. Cf. Paul Arshagouni, "But I'm on Adult Now⋯ Sort of: Adolescent Consent in Health Care Decision-Making and the Adolescent Brain, 9 J. HEALTH CARE L. & POL'Y 315, 363 (2006) ("[T]he same understanding of adolescent development should be applied across the board. But that does not necessarily mean that we will get the same answer in each discipline.");
13. Mutcherson, supra note 3, at 958 ("[D]ecision-making in different contexts is so qualitatively dissimilar that it is not incongruous to find that the same individual's decision-making abilities may be sufficient to support autonomous decision making in one realm but insufficient to support a finding of autonomous decision-making in a distinct set of circumstances.") .
14. Several states, including Arkansas, Idaho, Illinois, Kansas, Mississippi, Nevada, New York, Ohio, Tennessee, and West Virginia, have expressly or impliedly adopted the mature minor doctrine by statute or through case law. See ARK. CODE ANN. § 82-363(g) (1987);
15. IDAHO CODE ANN. § 394302 (2002); Miss. CODE ANN. § 41-41-3(3) (2005);
16. NEV. REV. STAT. ANN. § 129.030(2) (LexisNexis 2004);
17. In re EG., 549 N.E2d 322 (111. 1989);
18. Younts v. St. Francis Hosp. & Sch. of Nursing, Inc., 469 P.2d 330 (Kan. 1970);
19. Bach v.Long Island Jewish Hosp., 267N.Y.S.2d 289 (1966);
20. Lacey v. Laird, 139N.E2d 25 (Ohio 1956);
21. Cardwell v. Bechtol, 724 S.W.2d 739 (Term. 1987);
22. Belcher v. Charleston Area Med. Or., 422 S.E2d 827 (W. Va. 1992). But see Commonwealth v. Nixon, 761 A.2d 1151 (Pa. 2000) (rejecting the mature minor doctrine in Pennsylvania).
23. See infra Part II.B.2. See generally Sonja Shield, The Doctor Won't See You Now: Rights of Transgender Adolescents to Sex Reassignment Treatment, 31 N.Y.U. REV. L.& SOC. CHANGE 361 (2007).
24. See infra note 99.
25. If a physician provides the youth with the requested medical care, and a subsequent tort action alleges that the youth lacked sufficient maturity to provide informed consent under the mature minor doctrine, the reviewing court would not be required to look to the Roper decision as binding precedent. However, the Roper Court's discussion of adolescent characteristics would be useful persuasive authority in such a context, as the decision provides guidance about which differences between youth and adults the Court viewed as legally significant when evaluating adolescent maturity and decisionmaking ability.
26. See infra Part III.
27. bLACK'S lAW dICTIONARY 1144 (8th ed. 2004); see also Alfred L. Snapp & Son, Inc., v. Barez, 458 U.S. 592, 600 & n.8 (1982). The patens patriae responsibility has traditionally extended to "persons under legal disability," Alfred L. Snapp & Son, Inc., 458 U.S. at 600 n.8 (quoting bLACK'S lAW dICTIONARY 1003 (5th ed. 1979)), a category that includes adolescents. See Santosky v. Kramer, 455 U.S. 745, 766 (1982) (noting the state's "parens patriae interest in preserving and promoting the welfare of the child"). While the Roper decision did not explicitly discuss parens patriae, the opinion "utilize[d] key established differences between adults and juveniles that bear a striking resemblance to the foundational basis for operation of the parens patriae doctrine in the juvenile court system." Sally T. Green, Prosecutorial Waiver Into Adult Criminal Court: A Conflict of Interests Violation Amounting to the States' Legislative Abrogation of Juveniles' Due Process Rights, 110 PENN ST. L. REV. 233, 266 (2005).
28. See generally Rhonda Gay Hartman, AIDS and Adolescents, 7 J. HEALTH CARE L. & POL'Y 280, 299-301 (2004) (discussing the development of parens patriae authority in the context of adolescent decisionmaking).
29. See Beschle, supra note 3, at 40.
30. See infra Part III.
31. Cf. Emily A. Bishop, Note, A Child's Expertise: Establishing Statutory Protection for Intersexed Children Who Reject Their Gender of Assignment, 82 N.Y.U. L. REV. 531, 566 (2007) (arguing that "each day of forced rearing in an assigned gender role with which one does not identify can inflict severe psychological harm on a child").
32. 543 U.S. 551 (2005).
33. Id. at 578.
34. Id. at 564-67.
35. Id. at 568 (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)).
36. Id. at 569.
37. Id. at 572-73.
38. Id. at 575. The Court also noted that the United States was one of only two countries worldwide that had not ratified a treaty expressly prohibiting imposition of the death penalty for crimes committed by juvenile offenders. Id. at 576.
39. Id. at 569-70.
40. Id. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
41. Id.
42. Id. at 570.
43. Id. at 572-73.
44. Id. at 573.
45. Id. at 569-75 (citing Johnson, 509 U.S. 350 (nineteen-year-old defendant);
46. Stanford v. Kentucky, 492 U.S. 361 (1989) (seventeen-year-old defendant);
47. Thompson v. Oklahoma, 487 U.S. 815 (1988) (fifteen-year-old defendant);
48. Eddings v. Oklahoma, 455 U.S. 104 (1982) (sixteen-year-old defendant)).
49. Id. at 569. But see Cunningham, supra note 3, at 310-11 ("[T]hose Justices who supported a categorical determination of incapacity did not give major discussion in their opinions to the common law court decisions in the areas of contract law, property, and torts. ⋯ To the extent that the Court tried to reconcile the inconsistent view of capacity under law, they were doing so with respect to their own jurisprudence only.").
50. Roper, 543 U.S. at 619 (Scalia, J., dissenting) (quoting Stanford, 492 U.S. at 374).
51. See, e.g., Donald L Beschle, The Juvenile Justice Counterrevolution: Responding to Cognitive Dissonance in the Law's View of the Decision-Making Capacity of Minors, 48 EMORY L.J. 65 (1999); Cunningham, supra note 3.
52. Cunningham, supra note 3, at 287-323 (referring to multiple areas of categorical incapacity, including alcohol, contracts, and voting).
53. Id. at 323-53 (describing individual determinations of capacity in a wide range of contexts, including marriage and prosecutorial waiver).
54. Id. at 354-64 (noting categorical capacity in situations ranging from mental health treatment to legislative waiver).
55. Paisley Currah et at., Introduction to TRANSGENDER RIGHTS at xiii, xiv (Paisley Currah et al. eds., 2006). Sex refers to the male or female designation assigned to an individual at birth, usually based on external genitalia. Julie A. Greenberg, The Roads Less Traveled: The Problem With Binary Sex Categories, in tRANSGENDER RIGHTS, supra, at 51, 52. Gender identity, in contrast, refers to an individual's "internal, deeply felt sense of being either male or female, or something other or in between." Jamison Green, Introduction to pAISLEY cURRAH &c sHANNON MLNTER, tRANSGENDER EQUALITY: A HANDBOOK for Activists and Policymakers 1, 3 (2000), available at http://www.thetaskforce.org/ downloads/reports/reports/TransgenderEquality.pdf. This Comment uses transgender as an umbrella term encompassing a wide variety of gender nonconformances, including transsexual and genderqueer identities.
56. See Susan Stryker, (De)Subjugated Knowledges: An Introduction to Transgender Studies, in THE TRANSGENDER STUDIES READER 1, 4 (Susan Stryker & Stephen Whittle eds., 2006) (discussing the evolution of the word "transgender" and its current usage as "a 'pangender' umbrella term").
57. Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People, 11 MICH. J. GENDER & L. 253, 268-70 (2005). "Some transgender people undergo no medical care related to their expression of a gender identity that differs from their birth-assigned sex," while "[o]thers undergo only hormone therapy treatment or any of a number of surgical procedures." Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 754 (2008). Among those who do seek medical care to facilitate their gender expression, masculinizing and feminizing hormones are the most common approach. Id. at 754-55.
58. Hormones known as blockers suppress the development of secondary sex characteristics that would otherwise result from pubertal changes. Walter Meyer III et al., The Harry Benjamin International Gender Dysphoria Association's Standards of Care for Gender Identity Disorders, Sixth Version, reprinted in 13 J. PSYCHOL. & HUM. SEXUALITY 1, 10 (2001). Masculinizing and feminizing hormones, in contrast, cause transgender youth to develop secondary sex characteristics aligned with their gender identity. Id. The effects of blockers are fully reversible, while the effects of masculinizing and feminizing hormones are partially reversible. Id. Unless otherwise noted, the discussion in this Comment refers to masculinizing and feminizing hormones rather than blockers.
59. JOSEPH G. KOSCIW & ELIZABETH M. DIAZ, GAY, LESBIAN AND STRAIGHT EDUC NETWORK, THE 2005 NATIONAL SCHOOL CUMATE SURVEY: THE EXPERIENCES OF LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH IN OUR NATION'S SCHOOLS 61-62 (2006), available at http://www.glsen.org/binary-data/ GLSEN-ATTACHMENTS/file/585-l.pdf (finding that more than half of transgender students surveyed experienced verbal harassment, more than half experienced physical harassment, and a third were assaulted at school); see also Shield, supra note 11, at 368-72;
60. Dean Spade, Compliance Is Gendered: Struggling for Gender Self-Determination in a Hostile Economy, in TRANSGENDER RIGHTS, supra note 40, at 217, 219 ("[H]arassment and violence against trans and gender nonconforming students is rampant in schools, and many drop out before finishing or are kicked out.").
61. HUMAN RIGHTS WATCH, HATRED IN THE HALLWAYS, ch. 7 (2001), available at http://www.hrw.org/reports/2001/ uslgbt/toc.htm ("The most common response to harassment [of LGBT students], according to the students we interviewed, is no response⋯ We heard numerous accounts of teachers and administrators who refused to act to protect lesbian, gay, bisexual, and transgender students out of the belief that they get what they deserve.").
62. Id. (describing accounts of "teachers and administrators who actually took part in harassing students because of their actual or perceived sexual orientation or gender identity");
63. Patience W. Crozier, Forcing Boys to Be Boys: The Persecution Of Gender Non-Conforming Youth, 21 B.C. THIRD wORLD LJ. 123, 131-32 (2001) (book review) (describing the "abusive and prejudicial treatment" experienced by gender non-conforming youth in schools, and finding that some schools "actively create a hostile environment for these students");
64. see also Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in TRANSGENDER RIGHTS, supra note 40, at 3, 7-8 (describing examples of school officials punishing youth for deviating from traditional gender boundaries).
65. See Christian Burgess, Internal and External Stress Factors Associated With the Identity Development of Transgendered Youth, J. GAY & lESBIAN SOC. sERVS., No. 3/4, 1999, at 35, 42; Spade, supra note 43, at 219.
66. Shield, supra note 11, at 372; Spade, supra note 43, at 219.
67. Shield, supra note 11, at 373.
68. Id. at 373-75; Spade, supra note 43, at 219.
69. Shield, supra note 11, at 375; Spade, supra note 43, at 219;
70. see also nICHOLAS rAY ET AL., LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH: AN EPIDEMIC OF HOMELESSNESS 58 (2007), available at http://www.thetaskforce.org/downloads/HomelessYouth.pdf ("Transgender youth are disproportionately represented in the homeless population. More generally, some reports indicate that one in five transgender individuals need or are at risk of needing homeless shelter assistance.").
71. See Crozier, supra note 45, at 130 ("Because of the intense homophobia and transphobia present throughout American society, gender non-conforming youth comprise a minority youth population invisible to family, peers, and schools-the main support systems for youth.").
72. Burgess, supra note 46, at 40 ("While many adolescents find solace⋯ in peer groups where they can share stories of their physical trials and tribulations, transgender youth seldom have such support systems.");
73. cf. John Alan Cohan, Parental Duties and the Rightof Homosexual Minors to Refuse "Reparative" Therapy, 11 BUFF. WOMEN'S LJ. 67, 71 (2002-2003) ("What makes gay and lesbian youth different from other minorities is that they do not, for the most part, grow up with people like themselves.").
74. Burgess, supra note 46, at 35-36 ("In addition to undergoing the regular perils of adolescence, [transgender youth] face an extraordinary amount of additional internal and external pressures associated with their identity development, centered around a society that is overwhelmingly uncomfortable with gender non-conformity. When left unchecked, these pressures amount to extreme isolation and confusion, which can lead to an array of bio-psycho-social problems⋯");
75. cf. Cohan, supra note 52, at 71 (discussing the psychological effects of isolation on gay and lesbian youth, whose "isolation becomes more encompassing if they live in a homophobic social environment").
76. Shield, supra note 11, at 384; Crossing to Safety: Transgender Health and Homelessness, HEALING HANDS (Health Care for the Homeless Clinicians' Network, Nashville, Term.), J une 2002, at 2 ("High rates of⋯ depression, anxiety, and suicide among transgender people attest to the psychological burden of discrimination, isolation, and victimization.");
77. see also Burgess, supra note 46, at 41 ("Because of the internalization of negative attitudes toward gender non-conformity, transgender youth are at an increased risk for low self-esteem, which may manifest itself through depression, substance abuse, self-mutilation and/or suicide.");
78. Judith Butler, Undiagnosing Gender, in TRANSGENDER RIGHTS, supra note 40, at 274, 294 ("[T]he cruelty of adolescent peer pressure on transgendered youth can lead to suicide.").
79. Warren J. Blumenfeld &. Laurie Lindop, Gay, Lesbian, Bisexual, Transgender Youth Suicide, http://www.outproud.org/article-suicide.html (last visited Sept. 26, 2008) (describing a study finding that "[f]ifty-three percent of transsexuals surveyed had made suicide attempts");
80. Paul Cody, Counseling Ctr., Univ. of N. H., Suicide and Gay, Lesbian, Bisexual and Transgender Youth, http://www.unhcc.unh.edu/resources/glbt- suicide.html;
81. see also Sundstrom v.Frank, No.06-C-112, 2007 WL3046240, at*3n.2 (ED. Wis. Oct. 15, 2007).
82. Spade, supra note 41, at 755 & n.l 10.
83. Pooja S. Gehi & Gabriel Arkles, Unraveling Injustice: Race and Class Impact of Medicaid Exclusions of Transition-Related Health Care for Transgender People, 4 SEXUALITY RES. & SOC. POL'Y 7, 12 (2007).
84. Meyer et al., supra note 42, at 10 ("Hormonal treatment can often alleviate anxiety and depression in people without the use of additional psychotropic medications.");
85. Shield, supra note 11, at 383-84.
86. Cf. GEHI & Arkles, supra note 57, at 13 ("Research ⋯ has shown that transition-related health care is an effective treatment for ameliorating⋯ suicidal tendencies.").
87. Cf. HENRY RUBIN, SELF-MADE MEN: IDENTITY AND EMBODIMENT AMONG TRANSSEXUAL MEN 11 (2003) ("[B]odies, especially secondary sex characteristics, facilitate intra-and inter-subjective recognition of a core (gendered) self. Bodies matter for subjects who are routinely misrecognized by others and whose bodies cause them great emotional and physical discomfort.");
88. Burgess, supra note 46, at 45 ("Just a simple validation of who the individual is, including his/her gender identity, can make all the difference in the world for [a transgender] person.").
89. SYLVIA RIVERA LAW PROJECT, YOUR HEALTHCARE RIGHTS: TRANS YOUTH IN NEW YORK 4 (2006), available at http://www.srlp.org/files/HC.youth-pdf ("Trans youth often have a very hard time getting necessary healthcare. Hormones are especially hard for people under the age of eighteen to get.").
90. Burgess, supra note 46, at 41; FIERCE! and SRLP Team Up: Safe Hormone Access for Teens!, SYLVIA RIVERA LAW PROJECT NEWSLETTER (Sylvia Rivera Law Project, New York, N.Y.), Feb. 2004, at 1 [hereinafter "SRLP n EWSLETTER"];
91. Jessica M. Xavier, Gender Ed. & Advocacy, The Washington Transgender Needs Assessment Survey, http://www.glaa.org/archive/2000/tgneedsassessment1112. shtml (last visited Oct. 17, 2008) (reporting the results of a survey in which 58 percent of transgender respondents had "acquired hormones from friends or on the street").
92. Shield, supra note 11, at 381;
93. see also SRLP nEWSLETTER, supra note 62 (noting that "improper dosage of hormones can result in stroke and liver damage").
94. Jordan W. Edwards et al., Male-to-Female Transgender and Transsexual Clients of HIV Service Programs in Los Angeles County, California, 97 AM. J. pub. health 1030, 1030 (2007) (discussing the high risk of HIV transmission that results from transgender individuals injecting hormones with used needles);
95. see also SRLP nEWSLETTER, supra note 62 (noting that "unsanitary [hormone] intake conditions put transgender teens at the risk of contracting HIV and Hepatitis").
96. SHANNON MINTER &. CHRISTOPHER DALEY, TRANS REALITIES: A LEGAL NEEDS ASSESSMENT OF SAN FRANCISCO'S TRANSGENDER COMMUNITIES, at LA (2003) (describing the results of a survey by the National Center for Lesbian Rights and the Transgender Law Center in which "[o]ver 30% of respondents report[ed] that they ha[d] been discriminated against while trying to access health care");
97. Shield, supra note 11, at 380.
98. mINTER & dALEY, supra note 65, at II.A.5 (describing the difficulties transgender people face in "finding a doctor who is familiar and comfortable providing primary health care services to a transgender person");
99. Green, supra note 40, at 11-12 ("Many providers treat trans people only with great reluctance, sometimes pointedly harassing them and embarrassing them.⋯").
100. See Vade, supra note 41, at 271 n.62 ("Transgender women were refused hormones because they did not go to the doctor in a skirt. Transgender men were refused hormones because they disclosed to their doctor that they are gay. Disclosing to one's doctor that one is neither female nor male and obtaining hormones is virtually impossible." (citing interviews, in San Francisco Bay Area, Cal. (2002))).
101. MINTER & DALEY, supra note 65, at II.A.5 ("[Transgender] people ⋯ face a challenge in finding a health care provider who can competently provide services.... Even if a particular doctor has the cultural competency to provide good services, no guarantee exists that the doctor's staff and business partners share this competency.");
102. SYLVIA RIVERA LAW PROJECT, supra note 61 (noting that some doctors refuse to provide transgender identity-related services because of lack of expertise).
103. Voicemail From Dean Spade, Assistant Professor of Law, Seattle Univ. (Oct. 3,2008);
104. see, e.g., Fenway Cmty. Health Transgender Health Program, Protocol for Hormone Therapy 2 (Sept. 2007), available at http://www.fenwayhealth.org/site/Doc("Candidates [for hormonal treatment] must be at least 18 years of age and able to give informed consent.").
105. Meyer et al., supra note 42, at 14.
106. See Spade, supra note 43, at 228 ("[M]edical care of all kinds, but particularly gender-related medical care, remains extremely inaccessible to most low-income gender-transgressive people.").
107. Vade, supra note 41, at 258 n.14 (citing a number of studies, all of which indicate that only about half of transgender respondents have health insurance).
108. JAMISON GREEN, BECOMING a VISIBLE MAN 91 (2004) ("[H]ormones⋯are some of the most frequently prescribed substances because hormonal imbalances or deficiencies are extremely common. Yet it's only transsexual people whose hormonal imbalances or deficiencies are restricted from treatment under insurance plans.");
109. LNTER & DALEY, supra note 65, at II.A.5 ("[M]any health insurance plans, HMO plans, and employee benefits plans will deny coverage of hormones, surgery, and other procedures that are a part of a person's transition.");
110. Shield, supra note 11, at 380.
111. Cf. Abigail English & Madlyn Morreale, A Legal and Policy Framework for Adolescent Health Care: Past, Present, and Future, 1 HOUS. J. HEALTH L & POL'Y 63, 106 (2001) ("[F]ew families and even fewer adolescents can afford to pay out-of-pocket for all the health care they need.").
112. See Leslie I. Lax, Is the United States Falling Behind? The Legal Recognition of Post-Operative Transsexuals' Acquired Sex in the United States and Abroad, 7 QUINNIPAC HEALTH LJ. 123,125-26 (2003);
113. see also Meyer et al., supra note 42.
114. Meyer et al., supra note 42, at 2 (noting that the "clinical threshold" for treatment occurs "[w]hen dissatisfied individuals meet specified criteria in one of two official nomenclatures-the International Classification of Diseases-10 (ICD-10) or the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV)-[and therefore] they are formally designated as suffering from a gender identity disorder (GID)");
115. see also Mark Blankenship, Affrrrning Transgender Care, THE ADVOCATE, Apr. 11, 2006, at 46 ("Transgender people hoping to begin their physical transition are often denied hormone therapy until they endure a lengthy psychological evaluation that proves they suffer from gender identity disorder. The process alienates some trans people, discouraging them from seeking basic medical attention.").
116. Meyer et al., supra note 42, at 14.
117. Id. at 10.
118. Id.
119. Id. at 14.
120. See, e.g., Butler, supra note 54, at 275 ("[O]n the one hand, the [G1D] diagnosis continues to be valued because it facilitates an economically feasible way of transitioning. On the other hand, the diagnosis is adamantly opposed because it continues to pathologize as a mental disorder what ought to be understood instead as one among many human possibilities of determining one's gender for oneself.").
121. See GID Reform Advocates, http://www.gidreform.org (last visited Sept. 26, 2008) ("GID literally implies a 'disordered' gender identity.").
122. See Dean Spade, Resisting Medicine, Re/modeling Gender, 18 BERKELEY WOMEN'S LJ. 15,23 (2003) (criticizing the medicalization of transgender identity and describing "the gulf between trans community understandings of our bodies, our experiences, and our liberation, and the medical interpretations of our lives").
123. See Vade, supra note 41, at 286-87 n.107 ("The [HBIGDA] 'Standards of Care' outline who is deemed a real transgender person and who is not, who gets care and who does not. The Standards give doctors the power to make that determination.").
124. Cunningham, supra note 3, at 317 ("Minors are categorically incapable of giving informed consent for most medical procedures.⋯ [T]he power to decide when a child will have a medical procedure vests with the child's lawful guardian, usually a parent."). A medical professional who provides care to a minor without informed consent from a lawful guardian may face tort liability for battery. See Sarah Katz, When the Child Is a Parent: Effective Advocacy for Teen Parents in the Child Welfare System, 79 TEMP. L. REV. 535, 545 (2006).
125. Burgess, supra note 46, at 42; Shield, supra note 11, at 372; Spade, supra note 43, at 219.
126. Cunningham, supra note 3, at 324; see Arshagouni, supra note 9, at 336-39; Rhonda Gay Hartman, Adolescent Autonomy: Clarifying an Ageless Conundrum, 51 HASTINGS LJ. 1265, 1310-17 (2000). The arguments in this Comment supporting a presumption in favor of access in states that have adopted the mature minor doctrine also support the adoption of the doctrine in states that have yet to do so. For further arguments in favor of expanding of the mature minor doctrine, see Shield, supra note 11. Some states have adopted additional exceptions to parental consent that may be applicable to transgender youth. See generally Rhonda Gay Hartman, Coming of Age: Devising Legislation for Adolescent Medical Decision-Making, 28 AM. J.L & MED. 409, 416-22 (2002) (surveying state legislation allowing adolescents to exercise legal autonomy over medical decisionmaking). For example, in some states homeless youth may consent to their own medical care. Shield, supra note 11, at 431. Unfortunately, because many transgender adolescents ate homeless, this exception is especially relevant to transgender youth seeking hormone treatment. Shield, supra note 11, at 375;
127. Spade, supra note 43, at 219.
128. See Cunningham, supra note 3, at 324 ("The mature minor doctrine essentially carves out a new category of adolescents who, on a case-by-case basis, may have the capacity to give consent for medical treatment."). In some states, a strand of the emancipated minor doctrine allows medical care without parental consent based on the same general standard. Arshagouni, supra note 9, at 335.
129. Some states have adopted the mature minor doctrine by statute, and others through common law. English & Morreale, supra note 74, at 71-72.
130. See id. at 81-82 (describing variations among minor consent laws in different states).
131. In re E.G., 549 N.E2d 322, 327-28 (Ill. 1989).
132. W. VA. CODE ANN. § 16-30-3(o) (LexisNexis 2006).
133. See, e.g., id. (allowing medical professionals to determine a minor's capacity to consent to treatment without requiring court involvement);
134. Belcher v. Charleston Area Med. Crr., 422 S.E2d 827, 837 (W. Va. 1992) (discussing the common law version of the mature minor doctrine, and noting that it "places the doctor in the difficult position of making the determination of whether the minor at issue is mature").
135. See English & Morreale, supra note 74, at 72 ("According to the mature minor doctrine, a physician will not be liable simply on the basis of failing to obtain parental consent when providing non-negligent care that is both low risk and within the mainstream of medical opinion to a minor who is capable of giving informed consent to the care and who does so voluntarily.").
136. Belcher, 422 S.E.2d at 837-38 n.14 (noting that in a case of conflict, "the physician's good faith assessment of the minor's maturity level would immunize him or her from liability for the failure to obtain parental consent" and describing the importance of good recordkeeping in such situations).
137. Cf. Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 hARV. l. rEV. 1001,1005 (1975) ("Apprehension regarding potential liability for providing minors with services absent parental consent persists among physicians and hospitals, for the emancipation and mature minor exceptions call for subtle legal determinations regarding the child's mental capabilities and social milieu that doctors make at their considerable peril. Where uncertainty exists the physician will often refuse to provide nonemergency treatment to minors without obtaining parental consent.").
138. The lack of litigation against physicians and health care facilities that have provided hormones to transgender youth suggests that any such fear is unwarranted. Indeed, "no doctor has been held liable for battery in the past thirty years when treating a patient over age fourteen without parental consent." Lawrence Schlam & Joseph P. Wood, Informed Consent to the Medical Treatment of Minors: Law and Practice, 10 HEALTH MATRIX 141, 163 (2000).
139. Such a presumption would not be without precedent. For example, Tennessee adopted a presumption in favor of medical decisionmaking autonomy for youth over the age of fourteen. Cardwell v. Bechtol, 724 S.W.2d 739, 749 (Term. 1987). The decision was based in part on the Rule of Sevens, which had "been part of the common law for over a century." Id. at 744-45 (citing The Queen v. Smith, 1 Cox C.C. 260 (1845)). The Rule of Sevens established categorical incapacity for minors under the age of seven, a rebuttable presumption of no capacity between the ages of seven and fourteen, and a rebuttable presumption of capacity between the ages of fourteen and twenty-one. Id. at 745.
140. See In re E.G., 549 N.E2d 322, 329 (111. 1990) (Ward, J., dissenting) (criticizing the Illinois Supreme Court's adoption of the mature minor doctrine because it "does not attempt to state a standard by which 'mature' is to be measured by judges in making these important findings");
141. Arshagouni, supra note 9, at 338;
142. Garfield, supra note 93, at 93 (noting that scholars have criticized mature minor statutes "because they are ambiguous and do not provide proper guidance to courts for their application").
143. 543 US. 551 (2005).
144. See supra Part II.B.2.
145. Arshagouni, supra note 9, at 338.
146. See, e.g., Deborah W. Denno, The Scientific Shortcomings of Roper v. Simmons, 3 OHIO ST. J. CRIM. L. 379,396 (2006) (concluding that "although Roper was correct in its result, the Court's use of social science research was, at times, limited and flawed");
147. Kathryn Lynn Modecki, Addressing Gaps in the Maturity of Judgment Literature: Age Differences and Delinquency, 32 LAW & HUM. BEHAV. 78, 78 (2008) (surveying research supporting the proposition that "due to immaturity of judgment, adolescents' antisocial decisions should be viewed through a lens of mitigated criminal culpability").
148. Roper, 543 U.S. at 569.
149. Id.
150. Id. at 570.
151. Id. (noting the "susceptibility of juveniles to immature and irresponsible behavior" and explaining why "[t]hese differences [between juveniles and adults] render suspect any conclusion that a juvenile falls among the worst offenders").
152. Id. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
153. See generally supra Part II.B.l.
154. Mutcherson, supra note 3, at 959.
155. Cf. id. at 929 ("[I]t is logical to conclude that the decision-making process in formal healthcare settings leads to better decisions that the law should support than is the case in the informal settings in which young people decide to participate in criminal activities.").
156. Id. at 962.
157. See id.
158. See Meyer et al., supra note 58, at 20 ("The maximum physical effects of hormones may not be evident until two years of continuous treatment.").
159. See generally supra notes 75-80 and accompanying text.
160. Meyer et al., supra note 42, at 14.
161. See Burgess, supra note 46, at 41;
162. SRLP nEWSLETTER, supra note 62, at l;
163. Xavier, supra note 62.
164. See supra notes 63-64 and accompanying text (discussing the health risks of hormones obtained and injected on the street).
165. Roper v. Simmons, 543 U.S. 551, 569 (2005).
166. Shield, supra note 11, at 404 (evaluating the concern "that a teenager might seek sex reassignment treatment as a means to fit in better with peers").
167. See supra Part II.A; see also Burgess, supra note 46, at 35-36 ("[Transgender youth] face an extraordinary amount of⋯ internal and external pressures associated with their identity development, centered around a society that is overwhelmingly uncomfortable with gender non-conformity.");
168. cf. Holning Lau, Pluralism: A Principle for Children's Rights, 42 HARV. C.R.-C.L. L. REV. 317 (2007) (explaining how assimilation demands lead children to suppress minority characteristics). This pressure comes not only from peers and families, but also from the medical establishment. See Butler, supra note 54, at 295 (arguing that the GID diagnosis itself may "act precisely as peer pressure, as an elevated form of teasing, as a euphemized form of social violence"). Pressure to express a gender identity conforming to an individual's birth-assigned sex is enforced through legal sanctions and economic consequences. See Nancy J. Knauer, Gender Matters: Making the Case for Trans Inclusion, 6 PIERCE L. REV. 1, 2 (2007) (noting that the law "speaks in terms of 'gender fraud' and carefully polices the binary gender system");
169. Spade, supra note 43, at 221 ("Access to participation in the U.S. economy has always been conditioned on the ability of each individual to comply with norms of gendered behavior and expression, and the U.S. economy has always been shaped by explicit incentives that coerce people into normative gender and sexual structures, identities, and behaviors.").
170. GREEN, supra note 73, at 90.
171. rUBIN, supra note 60, at 11.
172. Roper, 543 U.S. at 569.
173. See GREEN, supra note 73, at 95 (noting that "the body is where we live" while explaining the author's decision to take hormones and the benefits he subsequently experienced).
174. See supra Part II.A.
175. Roper, 543 U.S. at 570.
176. Id. ("The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a j uvenile is evidence of irretrievably depraved
177. character⋯. Indeed, the relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient⋯." (alterations, citation, and internal quotation marks omitted)).
178. Cf. Emily Buss, Allocating Developmental Control Among Parent, Child and the State, 2004 U. CHI. LEGAL F. 27, 41 ("In adulthood, our identities become relatively (though certainly not completely) fixed. Until this occurs, however, we should be slow to put decisionmaking control over matters with long-term consequences into the hands of someone with only short-term identity competence." (footnote omitted)).
179. Secondary sex characteristics include physical features traditionally associated with males (such as facial hair) or females (such as breasts).
180. See Meyer et al., supra note 42, at 20 (describing physical changes induced by masculinizing and feminizing hormones).
181. Id. (describing reversible and irreversible effects of hormones); Lax, supra note 75, at 127 ("While many of the changes induced by hormone therapy are reversible, there are a number of effects that are irreversible, including breast enlargement in natal males and increased facial and body hair, as well as a deepening of the voice in natal females.").
182. Shield, supra note 11, at 378-79;
183. Henk Asscheman & Louis J.G. Gooren, Hormone Treatment in Transsexuals, 5 J. PSYCHOL. & HUM. SEXUALITY 39, 39 (1992) (noting that pubertal exposure to testosterone causes "secondary sex characteristics [such] as sexual hair, deepening of the voice, a muscular build, and ⋯ greater average height" while pubertal exposure to estrogen causes "breast formation and a fat distribution predominantly around the hips").
184. RUBIN, supra note 60, at 94-95 ("After puberty, as the process of sexual development took over their bodies, [the subjects of the study] felt simultaneously disembodied and acutely aware of their bodies⋯. They claim that their experiences of puberty were uniquely different, either quantitatively more painful or qualitatively different in kind, than that of most other adolescents.").
185. Shield, supra note 11, at 362-63 ("[T]he physical changes wrought by puberty are not easily reversed, so an individual barred from sex reassignment procedures until after puberty will forever see the mark of this delay on his or her body.");
186. Asscheman & Gooren, supra note 133, at 40 ("The greater height, the shape of the jaws, the size and shape of the hands and feet, and the narrow width of the pelvis can not be redressed [through hormones] once they have reached their final size at the end of puberty.").
187. This refers only to the future balance of subjective harms from granting or denying access. In contrast, the very fact that the transgender youth seeks access to hormones indicates that the current balance of subjective harms favors access.
188. See supra Part II.B.1, for a discussion of the barriers that must be overcome before informed consent laws have a practical effect. This Comment does not assume that any of those barriers are appropriate; rather, it simply recognizes that they exist.
189. Darryl B. Hill et al., Gender Identity Disorders in Childhood and Adolescence: A Critical Inquiry, in "SEXUAL AND GENDER DIAGNOSES OF THE DIAGNOSTIC AND STATISTICAL MANUAL (DSM): A REEVALUATION 7, 15 (Dan Katasic & Jack Drescher eds., 2005) (surveying studies addressing "the validity and reliability of the GID diagnosis for children and adolescents"). In one study, researchers found that they were able to diagnose GID in children accurately 69 to 83 percent of the time. Id. In another study, twenty-two adolescents diagnosed with GID obtained irreversible sex reassignment surgery, and none expressed regret one to five years later. Shield, supra note 11, at 389.
190. Xavier, supra note 62 (reporting the results of a survey in which "90% of those [transgender respondents] currently taking hormones state[d] [that] they plan[ned] to continue taking them for the rest of their lives").
191. RUBIN, supra note 60, at 11 (reporting "that bodies are a crucial element in personal identity formation and perception" as "one of the most significant findings" of the ethnographic study);
192. cf. Lau, supra note 121, at 320 (arguing that "the state must avoid socialization policies that undermine a child's ability to develop and express her identity" unless "protecting that exercise [of identity interests] would cause cognizable harms to the child or to others").
193. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 US. 503, 511 (1969) (finding that "students are entitled to freedom of expression" in part because a contrary holding would allow states to run schools in a manner that would '"foster a homogenous people'" instead of allowing individual development (quoting Meyer v. Nebraska, 262 U.S. 390, 402 (1923))). Lower courts have recognized that conduct related to the expression of an individual's gender identity can constitute speech protected by the First Amendment. See Kastl v. Maricopa County Cmty. Coll., No. Civ. 024531PHX-SRB, 2004 WL 2008954, at *9 & n.13 (D. Ariz. June 3, 2004);
194. Zalewska v. County of Sullivan, N.Y., 316 F3d 314, 320 (2d Cir. 2003) (citing with approval Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000)).
195. For some transgender youth, restricting access to hormones may impede social development as well. As one scholar has noted, "[b]ecause transgender youth frequently avoid initiating platonic or romantic relationships before transitioning, they may developmentally fall behind their peers in these areas." Shield, supra note 11, at 367.
196. Cf. Holly Boswell, The Transgender Paradigm Shift Toward Free Expression, in GENDER BLENDING 53, 54 (Bonnie Bullough et al. eds., 1997) ("I used to be amazed that, despite my elaborate explanations, no one could ever quite understand my experience of transgender, until I finally realized that neither have I ever understood what it is to be a man or a woman.").
197. Roper v. Simmons, 543 U.S. 551, 572 (2005) ("Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death.").
198. See id. at 573 ("An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.").
199. Id. In the case before the Court, the prosecutor's closing argument played on jurors' fears of youthful offenders. The prosecutor said during closing, "Think about age. Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit Quite the contrary." Id. at 558.
200. See id. at 573.
201. Id.
202. See supra notes 65-68 and accompanying text.
203. See supra Part II.B.2.
204. See supra notes 46-47 and accompanying text.
205. Shield, supra note 11, at 363 ("[P]arents may refuse to consent to their child receiving transgender-related treatment, acting out of bias and ignorance rather than their child's genuine need and best interests.").
206. The legal system may determine access directly, through a specific decision granting or denying a request to obtain hormones without parental consent, or indirectly, through an allocation of burdens that makes court involvement unnecessary. See supra notes 93-98 and accompanying text.
207. Knauer, supra note 121, at 2; see also Noa Ben-Asher, Paradoxes of Health and Equality: When a Boy Becomes a Girl, 16 yALE J.L. & fEMINISM 275 (2004) (discussing a case in which a court removed a gender-nonconforming child to foster care because the child's birth-assigned sex was male but her parents enrolled her in school as a girl).
208. Roper v. Simmons, 543 U.S. 551, 573 (2005).
209. Id.
210. But see Cunningham, supra note 3, at 368 (arguing that "[p]resumptive capacity, as opposed to categorical capacity," leaves youth "subject to the whims and assumptions of the particular factfinder" assigned to their case).
211. See generally In re Gault, 387 U.S. 1,14-18 (1967) (describing the history and philosophy of the juvenile justice system).
212. See id. at 19-20 (requiring due process protections in delinquency proceedings because its absence had "resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy");
213. see also Kent v. United States, 383 U.S. 541, 555 (1966) ("While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults.").
214. 543 U.S. 551.
215. Cf. Nakajima, supra note 4, at 408 (reconciling juvenile abortion and death penalty cases on the basis that "the Court is oath bound to protect the minor's interest first and foremost").
216. Arshagouni, supra note 9, at 343 (arguing that Supreme Court precedent supports the proposition that "in circumstances where adolescents are not immature, or inexperienced, or lacking in judgment, their rights ought not to be infringed").