Liability · Informed consent · 2026-05-24
Informed consent as the strongest route
In practice the informed-consent route is by far the strongest legal avenue. Not because the treatment is per se unlawful, but because the patient can claim that — given full information — they would have chosen otherwise. That is the informed-consent counterfactual.
The Wgbo (art. 7:448 BW) requires honest information on the nature and purpose of treatment, expected effects and risks, alternatives, and health status. Below are five elements where that duty in practice often falls short — with sources.
1. Uncertainty about effectiveness
When international reviews rate the evidence quality as very low, that is a material fact. NICE (2020)1, SBU (2022)2 and the Cass Review (2024)3 all reach this rating. A physician who presents the treatment as safe and effective, while structural doubt persists in the international literature, breaches the duty of disclosure. It cannot be the case that the Dutch physician does not know this debate — or, knowing it, withholds it from the patient.
2. Irreversibility — the pause-button myth
Puberty blockers are often presented as a pause button. The data say otherwise. In the Dutch cohort by Brik et al. (2020), 98% of adolescents who received puberty blockers continued to cross-sex hormones.4 Comparable figures — above 95% — come from the Tavistock cohort (Carmichael et al. 2021)5 and subsequent reviews. Statistically this is not a pause but an entry route. A physician presenting the treatment as reversible paints an inaccurate picture.
Add to this the more specific irreversible effects: structural effects on bone density6, possibly on brain development, and — in combination with cross-sex hormones — permanent sterility. Surgical interventions are of course definitive.
3. Fertility loss
When hormone treatment starts in early puberty (Tanner stage 2), gamete cryopreservation is often physiologically impossible because there are no mature gametes yet. The adolescent is thus placed before a lifelong decision at an age at which developmental psychology does not consider them capable of grasping the implications — childlessness at 30, at 40 — in any real sense.
A physician facilitating this decision without accounting for the fact that a 13-year-old cannot grasp the impact of permanent infertility stands legally weak. "But the parents also signed" does not cover this: the child is the patient, and the child bears the consequences for life.
4. The existence of alternatives
The Wgbo requires disclosure of alternative treatment options, including watchful waiting. Classical prospective studies (Wallien & Cohen-Kettenis 2008; Drummond et al. 2008; Steensma et al. 2013) and subsequent reviews find that a substantial share of prepubertal children with gender dysphoria lose these feelings without medical intervention — desistance.7 Reported figures range, depending on study and cohort, typically between 60 and 90 percent. When this fact is not discussed, or when affirmative treatment is presented as the only option, the duty of disclosure is breached.
5. Comorbidity and differential diagnosis
Among adolescents presenting for gender care, comorbidity is the rule rather than the exception: autism spectrum, depression, anxiety, trauma, eating disorders.8 When these are not first thoroughly diagnosed and treated, it is unclear whether gender dysphoria is the primary problem or a secondary symptom. A physician who does not exercise this diligence breaches the second disciplinary norm.
Causation and damage: what must be proven?
For a successful civil claim the chain must be established: breach, hypothetical alternative decision (counterfactual), damage. For disciplinary law, the breach in principle suffices.
- The breach: missing or misleading information, deficient diagnostics, failure to discuss alternatives, ignoring comorbidity, following an outdated guideline without critical review.
- The counterfactual: would the patient — or, in the case of a minor, the parents, or the now-adult child looking back — have chosen otherwise given full information?
- The damage: physical (osteoporosis, infertility, sexual dysfunction, surgical complications, lifelong medication dependence), psychological (regret, depression, identity crisis), social (relationships, desire for children, work disability).
Next in this dossier
Notes
- NICE. Evidence review: Gonadotrophin releasing hormone analogues for children and adolescents with gender dysphoria. March 2020.
- SBU/Socialstyrelsen. Care of children and adolescents with gender dysphoria — National guidelines. 2022.
- Cass H. The Cass Review — Final Report. NHS England, April 2024.
- Brik T, Vrouenraets LJJJ, de Vries MC, Hannema SE. Trajectories of adolescents treated with gonadotropin-releasing hormone analogues for gender dysphoria. Archives of Sexual Behavior. 2020;49(7):2611–2618.
- Carmichael P, Butler G, Masic U, et al. Short-term outcomes of pubertal suppression in a selected cohort of 12 to 15 year old young people with persistent gender dysphoria in the UK. PLOS ONE. 2021;16(2):e0243894.
- Schagen SEE, Wouters FM, Cohen-Kettenis PT, Gooren LJ, Hannema SE. Bone development in transgender adolescents treated with GnRH analogues and subsequent gender-affirming hormones. J Clin Endocrinol Metab. 2020;105(12):e4252–e4263.
- Steensma TD, McGuire JK, Kreukels BPC, Beekman AJ, Cohen-Kettenis PT. Factors associated with desistence and persistence of childhood gender dysphoria: a quantitative follow-up study. J Am Acad Child Adolesc Psychiatry. 2013;52(6):582–590; for review see Ristori J, Steensma TD. Gender dysphoria in childhood. Int Rev Psychiatry. 2016;28(1):13–20.
- de Vries ALC, Noens ILJ, Cohen-Kettenis PT, van Berckelaer-Onnes IA, Doreleijers TA. Autism spectrum disorders in gender dysphoric children and adolescents. J Autism Dev Disord. 2010;40(8):930–6; Kaltiala-Heino R, Sumia M, Työläjärvi M, Lindberg N. Two years of gender identity service for minors. Child Adolesc Psychiatry Ment Health. 2015;9:9.