Pence's point on gender-affirming care for minors ignores parental consent rules for tattoos

Twice in the past few weeks, former Vice President Mike Pence has offered a model for determining whether minors should be able to receive gender-affirming care: the laws that govern whether minors can get a tattoo.

Pence, who is running for the 2024 Republican presidential nomination, raised the idea in a May 24 Scripps News interview. 

"Look, you can't get a tattoo under the age of 18 in most states in the country," Pence said. "And this idea that we would allow children to go through either chemical or surgical transition treatment really before they've come of age, before they have a full appreciation for the decisions that they make and the long term consequences — I've supported measures in my home state and around the country that would simply ban gender-transition treatment for young people. And I think that's in our children's best interests."

Pence said the law has "always limited what children under the age of 18 are able to do, whether it's (to) get a tattoo, whether it's (to) enter into a contract. And even criminal law deals with minors, in most cases, in different ways. So, I think there's justification for protecting our kids very, very broadly."

He repeated the comparison in a June 7 CNN town hall, saying, "There's a reason why you don't let kids get a tattoo before they're 18, right?"

When questioned by the moderator, Dana Bash, Pence said he would favor barring minors from receiving gender-affirming care even if their parents and doctors agreed that it was the right course. 

"The state has the obligation to see to the safety and health and well-being of the people in the state," he said.

There are some issues with Pence’s analogy.

First, Pence misstated the nature of consent laws for minors seeking tattoos. Second, tattoos are an aesthetic choice, while most medical organizations consider gender-affirming care medically necessary and even lifesaving. 

There is no federal law on minimum age for tattoos; states govern the issue. We checked with experts and they agreed that state laws fall broadly into three categories.

• In 27 states, the law does not specify the minimum age for a tattoo but allows minors to be tattooed as long as they have received a parent or legal guardian’s consent and/or have a parent present for the tattoo session.

• Five more states set the minimum age for a tattoo at 14 or 16, as long as a parent consents and/or is present.

• The remaining 18 states and the District of Columbia do set a firm minimum age of 18 for receiving a tattoo, without specifying that a parent can consent to allow a minor to receive one.

In other words, Pence’s bright line of age 18 — above it, you can get a tattoo, below it, you can’t — prevails in about one-third of states. However, in the other two-thirds of states, minors can receive tattoos with parental consent. 

Jessica Silbey, a Boston University law professor, said parental consent for minors has a long history beyond the question of tattoos.

"Minors can have medical treatment with consent of their guardian," Silbey said. "That’s why we sign health forms for schools and attend doctor's appointments with our children."

Other cosmetic procedures that are not always medically necessary, including rhinoplasty and breast augmentation, may be available to minors with parental consent, experts said.

Even in cases in which parents refuse to allow their child to receive a medical procedure, such as blood transfusions, children usually have a chance to make their case through the legal system.

"Under the constitutional right to bodily autonomy, a minor can petition a court for a bypass," she said. It is usually allowed, she added, especially when surgery will alleviate pain and relieve illness.

Unlike a tattoo, gender-affirming care is not just a cosmetic procedure. 

It is an individualized approach to health care that works to support a person’s gender identity. Gender identity refers to someone’s internal sense of being a man, woman, something in-between or neither, and is different from biological sex.  

For many people, their sex and gender are the same, but people who are transgender have a mismatch between the two. This incongruence can cause distress called gender dysphoria, which can include discomfort with one’s body, specifically the parts that signal biological sex. Some may feel their bodies have betrayed them and, in some cases, discomfort with their bodies can lead to self-harm or depression. 

The World Professional Association for Transgender Health’s standards of care note that gender-affirming care is more than just transition-related medical treatments such as hormone therapy or surgeries.

It can include social transitioning — using a preferred name or wearing certain clothes. As children age, it can extend to medical treatments. Younger adolescents can be prescribed puberty blockers, and older adolescents can receive hormonal therapies and, in rare cases, surgery. 

Those types of emotional and social affirmation — which also include creating a safe space to explore gender identity — are important elements of pediatric gender-affirming care, said Jason Rafferty, a pediatrician and child psychiatrist at Hasbro Children’s Hospital in Providence, Rhode Island. 

Dr. Alex Keuroghlian, director of the Massachusetts General Hospital Psychiatry Gender Identity Program said invoking tattoos in such a context ignores that "tattoos generally aren't medical care."

"At a basic level, we're comparing evidence-based medically necessary care to body art," Keuroghlian said.

Numerous studies have found a link between access to gender-affirming care and improved mental health for young people experiencing gender dysphoria.

"I’m not aware of comparable medical evidence or applications for tattoos," Keuroghlian said.

In its correspondence with PolitiFact, Pence’s team argued that tattoos can be reversed, while changing a minor’s sex cannot be. 

Gender-affirming surgeries are typically reserved for adults but can be recommended for older adolescents case by case, according to the American Academy of Pediatrics. The World Professional Association of Transgender Health’s Standards of Care also does not specify a specific age cutoff for surgical intervention, instead providing "a detailed framework to help providers assess the needs of patients at different developmental stages of life," according to the association’s president, Dr. Marci Bowers.

Bowers called Pence’s comparison "misleading and misguided," and said it "trivializes the in-depth, individualized and deeply personal importance of gender identity to an individual’s well-being."

Bowers said, "We want to ensure every transgender person receives the developmentally appropriate and individualized care that is best for them and their level of maturity." While there are some examples of minors receiving gender reassignment surgery, they are not the norm.

Other transition care available to adolescents, including gender-affirming hormones are partially reversible. But the most common medical treatment for minors, puberty blockers, are categorized by the American Academy of Pediatrics as reversible. 

Experts said that although deciding to get a tattoo is often impulsive, choosing to seek gender-affirming care requires intention, time and planning and, for minors, parental consent and involvement. 

"Health professionals and parents work together to help transgender young people get the care that meets their unique needs," said Bowers. 

Dr. Michelle Forcier, a pediatrics professor who specializes in gender and sexual and reproductive health at Brown University’s Warren Alpert Medical School, said Pence’s rhetoric also serves to diminish gender-affirmative health care’s importance. "To compare gender affirmative care to someone choosing a tattoo …  is a miscarriage of comparison and metaphor."