Judicial Discomfort over ‘Innovative’ Treatment for Adolescents with Gender Dysphoria

Abstract

Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing court involvement in Australia and recent judicial review proceedings in the UK. In Re Imogen [No 6], the Family Court of Australia held that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent’s capacity to consent, or the proposed treatment. In this article, we examine the Family Court’s rationale for preserving its welfare jurisdiction in gender dysphoria cases. We analyse case law developments in Australia and more recently in the UK and identify a thread of judicial discomfort in gender dysphoria jurisprudence about adolescents consenting to medical treatment that the court perceives to be ‘innovative’, ‘experimental’, ‘unique’, or ‘controversial’. We explore whether treatment for gender dysphoria can be characterised as ‘innovative’ and identify four factors that appear to be influencing courts in Australia and the UK. We also consider how such a characterisation might impact (if at all) on an adolescent’s capacity to consent to gender dysphoria treatment. We critique the ongoing role of courts in these cases and recommend a robust decision-making framework for gender dysphoria treatment to minimise court involvement in the future.

Reforming the Law on Consent to Medical Treatment for Trans Youth: A Renewed Call for Legislative Intervention

“…For an analysis of the congruency of the law with medical knowledge, see (Jowett 2022). On this point, see also (Taylor-Sands and Dimopoulos 2022). Note that the Guidelines referred to the judgment were subsequently published: (Telfer et al 2021).…”

“…A rights-based approach stands in contrast to this welfare-based approach in that it requires that children and young people are recognised and respected as active subjects with evolving capacities for decision making (Dimopoulos 2022). As Fortin (2009, p. 402) has argued, '[c]hildren's rights should not be lost somewhere .…”

Gender CARE beyond the courts: an alternative framework for resolving disputes over gender health care for children and adolescents

“…Gender CARE beyond the courts: an alternative framework for resolving disputes over gender health care for children and adolescents G ender health care for transgender and gender diverse children and adolescents in Australia continues to be scrutinised in an increasingly polarised socio-political climate. Courts have labelled this area of health care "innovative", "experimental" and "unique", 1 with treatment options often raising moral, ethical, human rights and clinical dilemmas. These problems include respect for children's evolving autonomy, the role of family in supporting health care outcomes, and the influence of cisnormative assumptions and socio-cultural expectations of gender.…”