Informed Consent, In regards to Transgender Affirming Care

Lauren Hickman

Clincial Intern

Nova Mental Health Services is a queer-affirming clinic. Being up to date on current policies impacting the populations we serve is necessary. If we fail to keep up with criteria, changes in policy, and trends, we are failing to support our clients and maintain professional integrity.
    There are currently hundreds of anti-trans bills, legislation that does not seek to understand but to control and regulate the bodies of others. The Informed Consent Model is one where patients can assess what is best for them within the constructs of a regulated system. Those regulations have existed since gender-affirming care became more available, starting in the 1970s with progressive physician, Harry Benjamin. He drafted the original standards of care for trans clients and those seeking medical intervention for HBIGDA (1979) the predecessor of WPATH - the World Professional Association for Transgender Health. ​

    Gender Dysphoria is a new term, updated in the DSM-5 from Gender Identity Disorder, removing the stigma of “disorder” and acknowledging the discomfort of the trans or nonbinary individual. 
    Traditionally, there was a linear timeline of process that created guidelines for the providers and consumers of gender-affirming care. This was practical in that 40 years ago, accessing care was difficult, and understanding what changes and experiences the client would experience provides a version of informed consent. A person knows what stages they would experience, but this prescribed timeline asks a lot of the individual — both in time, financial, and emotional distress. First, a trans client would need to seek therapy — some policies suggest years of therapy before the client could proceed with a diagnosis and a “permission slip” of approval from a mental health professional before receiving medical care. Traditionally these were psychologists, psychiatrists, and these days, Masters level practitioners, such as LCSWs. 
    This older transition timeline included the real-life test or real-life experience where, before receiving hormone therapy or affirming surgery, the client lived as their gender, changing name, pronouns, and appearance as another period of trial to see that this is “what they really wanted to do”. This real-life test was intended to be helpful. Medical practitioners adhere to the Hippocratic oath (Do No Harm) and a life-altering procedure that may create permanent changes in the physical body, and could potentially cause mental, emotional, and physical discomfort. One may wish the physicians could consider more of the positive outcomes, such as gender euphoria. 
    Thus, after years of therapy, a letter of medical consent by a mental health professional, and a year of real-life tests — the expression of gender identity before medical intervention— only then could a trans person access hormone treatment and non-genital surgery before having access to genital gender confirmation/affirmation surgery. This is such a patronizing system, infantilizing transgender people and as if to say are you sure this is what you want? What do you really, truly want? This does not at all honor the individual's agency to believe that they know who they are. The gender binary is being dismantled, and gender identity is not so fixed — suppose where the real-life test leaves nonbinary people in the gender journey? Gender identity is not a “fixed” thing and is an identity one can assume, regardless of physical form or appearance. 
    To further illustrate gatekeeping we turn to its definition: the activity of controlling, and usually limiting, general access to something. Gatekeeping is distrustful of individual autonomy and the client service ethic of self-determination refers to respecting the right of clients to control their own life. There is a power differential in the relationship between client and therapist, and informed consent helps to level the playing field in that the mental health professional is required to communicate the parameters of their services, that nothing is forced but always consented to, and that the client has the right to change their mind, withdraw services at any time and to always protect the client’s interest if they cannot provide informed consent (NASW, 2018).  
    In this medical model, informed consent implies that a mental health professional may be requested to write letters of approval for gender-affirming care.  While policymakers can assist in shifting the narrative to a fully informed consent model, practitioners are currently required to act as gatekeepers for medical care. The responsibility is to do so ethically and focus on the agency of the individual to have bodily autonomy and make choices for themselves. They may have to produce a letter for the insurance company, but professionals do not have to act as patriarchal gatekeepers and prevent someone from receiving the care they need. 
    FORGE Forward, an organization that aims to advocate for Transgender people, provided an educational seminar on gatekeeping and suggestions and awareness building for therapists and medical providers when it involves the gatekeeping aspect of the medical diagnosis/letter of approval for gender-affirming care, which is namely provided for insurance companies in their decision to pay out. A note about insurance policy: the Biden administration noted in 2022 “categorical coverage exclusions or limitations for all health services related to gender transition are discriminatory” and that a covered entity can’t deny or limit coverage or claims, or charge more in cost-sharing related to gender transition” (Sandroff, 2023). Before that, 2010’s Affordable Care Act banned health insurance discrimination based on sexual orientation and gender identity. 
    However…
    The push for anti-trans legislation has created laws in certain states that are working around these federal rulings by punishing providers and insurance companies by threatening to take away practice licenses. For example, Texas SB1029 which passed in February of 2023 holds health insurance plans strictly liable for all claimed gender-affirming care damages for life as well as the doctors being liable for the same. What this translates to in the rare incident of a trans person deciding to de-transition, the insurance company and physicians are responsible. In Florida, the comically named “Reverse Woke Act” holds employers liable if an employee wants gender-affirming care if they decide to de-transition— another sideways form of discrimination by discouraging employers from hiring trans people. South Dakota, HB 1080 bars trans-affirming care to trans minors, including puberty-blocking hormones which are most crucial in administering during the time of puberty. The list continues. Anti-trans rhetoric is abundant and legislation impacting bodily autonomy is life-threatening. These anti-trans bills and anti-female bills (repealing of Roe v. Wade) feel similar to colonizing citizens’ bodies by regulating access to medical care. 
    To reiterate, being transgender is not a pathology. Culturally we have come so far to admonish anti-trans perspectives and to acknowledge and uplift the community… only to a degree. With our culture being divided 50/50 between progression and regression to “traditional values,” these are hotbed issues that we mental health professionals must pay attention to in protecting ourselves, and our practice and by doing what we can to progress social policy to be inclusive. 
    When it comes to drafting a letter of medical approval, if a therapist chooses to implement an informed consent model, they have to consider what their boundaries are and what is ethically comfortable for them. Will that therapist write a letter after one therapeutic meeting? Six months? Will a clinician have boundaries if a client expresses dissociative tendencies? If the client shows ambivalence or extremes of expression? What of the incidence of non-suicidal self-injury or substance abuse? History of trauma/abuse? 
    I spoke with Tayler Clark, MSW LCSW, founder of Nova. “Each therapist decides how they handle the letters. I do not have requirements for how long they need to see me before getting a letter. I go through the DSM criteria for diagnoses and review the letter with the client to ensure we get all the correct information. We also go through informed consent and document it in the client’s notes. Normally, we [clinicians] are the last step before they can schedule their surgery. By the time [the client] gets to us, they are pretty well aware of the risks and benefits and have thought about it a lot and their minds are made up. I don’t want to stand in their way by making it a long and complicated process.” 
    Committing to the sovereignty and agency of each client means we assume people know who they are. Building strong client relationships, and having clarity of boundaries and preferences around medical letters, the therapeutic relationship is one of informed consent. We as therapists must communicate with our clients clearly about expectations. Contracts can be produced in both written and verbal format to acknowledge if there are any strings attached to the therapeutic process of accessing medical care. FORGE Forward recommends overtly asking clients if they need a letter or if they would like to focus on the general “life stuff” of traditional therapy — or both. Their body is theirs and it is a privilege to be involved in the letter-writing process. Keeping that in mind reduces the power dynamic and the gatekeeping reality. Allow clients to read and redact from the letter to further assist feelings of autonomy and protect their privacy. 
    Additionally, we as practitioners should be in tune with our communities: who prescribes hormones, who operates under informed consent models, and which providers use different types of care; where are affirming support groups? As well, learning and continuing to engage in transgender advocacy, education, and policy will assist those therapists, both cis and trans-identifying providers. We as gatekeepers to medical care must be aware of the power dynamic of the therapeutic relationship and the identity and experience of marginalized trans and nonbinary folks.
References:
National Association of Social Workers. (2017). NASW code of ethics. Retrieved August 18, 2023, from https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English
    FORGE Forward. (2023, March 4). Dismantling the gates: Informed consent models of care [Video]. YouTube. https://www.youtube.com/watch?v=5b0Bu9aNt_w

Pearsall, J., Hanks, P., Soanes, C., & Stevenson, A. (2010b). Oxford Dictionary of English. In Oxford University Press eBooks. https://doi.org/10.1093/acref/9780199571123.001.0001

​Sandroff, R. (2023). Does insurance cover Gender-Affirming care? Investopedia. https://www.investopedia.com/paying-for-transgender-surgeries-5184794