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

Abstract

Australian trans youth seeking medical treatment for gender dysphoria can encounter significant legal barriers to healthcare. Legal requirements for obtaining valid consent to gender-affirming care, first established in 2004, mean that an application to the Family Court is required in many cases before treatment can be provided. The development of Australian law concerning consent for the medical treatment of trans youth has been slow, haphazard, and remains incomplete. The Family Court process has been found to be damaging to trans youth and their families. There is widespread agreement that the law needs reform, even more so since the 2020 decision in Re: Imogen. This article explores the implications of the decision in Re: Imogen for trans youth and their families and raises possible models for reform. It starts by providing the background to Re: Imogen and explaining the current legal position. It then explores why the law needs to be reformed, highlighting the inconsistent approach to competency in Australian law and the harm the current law does to trans youth. Building on critiques of the law in this area, it reviews various options for law reform and suggests an optimal model.

A Continuum of Protection to Empowerment: The Evolving Legal Landscape of Decision-Making for Children and Adolescents

“…Adolescents' participation in society is essential to ensure just treatment of this important social group (Patton et al 2016(Patton et al , 2018Sawyer et al 2012). As shown by many of the articles in this Special Issue, ensuring greater participation by children and adolescents is essential for best practice and good outcomes in a range of settings spanning child care and protection decision-making (Cashmore et al 2023); medical decision-making (Jowett et al 2022); and forensic interviewing in child sexual abuse investigations (Holder et al 2023). Enhanced participation also boosts civic engagement, and will enhance social policy, and ensure pressing social issues are more fully understood and can be remediated by appropriate social policy.…”

“…When legislation is absent, and the law is unclear about the parameters of children's capacity for decision-making, a court response becomes necessary. In this Special Issue, the analysis by Jowett et al (2022) emphasized the harms which a court intervention in decisions about consent to gender-affirming medical treatment can cause for trans youth, including health, wellbeing and financial implications. Jowett et al (2022) identified the widespread concern about these matters shared amongst the legal fraternity, judicial officers and health practitioners.…”

“…In this Special Issue, the analysis by Jowett et al (2022) emphasized the harms which a court intervention in decisions about consent to gender-affirming medical treatment can cause for trans youth, including health, wellbeing and financial implications. Jowett et al (2022) identified the widespread concern about these matters shared amongst the legal fraternity, judicial officers and health practitioners. Jowett et al (2022) suggested legislative reform is needed for adolescents' healthcare decision-making and that 16 years of age was an appropriate threshold for consent to healthcare.…”

“…Jowett et al (2022) identified the widespread concern about these matters shared amongst the legal fraternity, judicial officers and health practitioners. Jowett et al (2022) suggested legislative reform is needed for adolescents' healthcare decision-making and that 16 years of age was an appropriate threshold for consent to healthcare. More specifically, they argued that a statutory presumption of capacity should be set at 16 years of age for medical decision-making; a legislative test could replace the common law mature minor principle; or a specific provision for gender-affirming care should be included in a relevant statute.…”

Experiences of parents of trans young people accessing Australian health services for their child: Findings from Trans Pathways

“…However, the relative scarcity of specialist gender services and practitioners with experience providing affirmative care to trans people constitutes a barrier to service access for both trans adults and young people (Riggs et al., 2014 ; Strauss et al., 2021 ). In Australia, consent of both parents is needed prior to commencement of any gender-affirming medical treatment, even when a young person is assessed as competent to consent, leading many families to navigate the Family Court system and creating additional barriers to care (Jowett et al., 2022 ). Both globally and within Australia, trans young people report difficulties in accessing services appropriate to their needs (Chong et al., 2021 ; Winter et al., 2016 ).…”