'The Requirement for Trans and Gender Diverse Youth to Seek Court Approval for the Commencement of Hormone Treatment: A Comparison of Australian Jurisprudence with the English Decision in Bell' by Malcolm K Smith in (2022) Medical Law Review comments
This article outlines the Australian legal position relevant to minors and the commencement of hormone treatment for Gender Dysphoria (GD). It traces the significant Australian legal developments in this field and compares the Australian jurisprudence with recent English caselaw. In Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors, the English High Court held that minors below 16 years are not likely to have the requisite competency to lawfully consent to the commencement of puberty suppressing drugs. The Court of Appeal subsequently overturned this decision, but there are important aspects of the High Court’s reasoning that warrant further analysis, particularly some of the underlying reasoning about the nature of GD as a condition and its treatment. This article highlights several common themes when comparing the High Court’s reasoning in Bell with Australian jurisprudence and highlights how the Australian position has advanced significantly since the first Australian cases in this field were decided. This comparison shows that the Australian perspective is important in demonstrating how judicial views can advance over time alongside a deeper understanding of GD, its treatment, and the broader impact of a requirement to involve the court in such cases. It is concluded that the Australian perspective should be considered in future English cases.
The author argues
There is a growing body of jurisprudence, discussed throughout this article, that addresses the issue of whether transgender (trans) and gender diverse minors with Gender Dysphoria (GD) are required to seek court approval prior to commencing hormone treatment. These cases have centred on whether court approval is required either as a general safeguard due to concerns about the nature of the treatment, and/or whether the court should confirm the minor’s competency to consent to such treatment. In this article, I outline the Australian case law concerning the requirement for minors to seek court approval for the commencement of hormone treatment for GD and compare it with recent English jurisprudence.
The 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) describes childhood GD as a condition where a child’s subjectively felt identity and gender are not congruent with their biological sex, causing clinically significant distress, or impairment in social functioning or other important areas of functioning. Treatment for GD in minors can be given in two stages. Stage 1 usually involves the commencement of gonadotropin-releasing hormone agonists referred to as puberty blockers (PBs), which suppress ‘the endogenous oestrogen and testosterone responsible for induction of secondary sexual characteristics’. In Australia, it is recognised that Stage 1 treatment may be administered to relieve distress ‘for trans adolescents by halting progression of physical changes such as breast growth in trans males and voice deepening in trans females’ and is considered reversible in its effects.
Although other ‘linear growth and weight gain’ continue whilst a minor is on PBs, one key aim is to give them ‘time to develop emotionally and cognitively prior to making decisions on gender affirming hormone use which have some irreversible effects’. Concerning Stage 2 treatment, the Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents explain that:
Gender affirming hormones oestrogen and testosterone are used to either feminise or masculinise a person’s appearance by inducing onset of secondary sexual characteristics of the desired gender. Some of the effects of these medications are irreversible, whilst others have a degree of expected reversibility, that is likely, unlikely or unknown … .
Recent developments in English law relevant to the commencement of PBs in minors stem from the judicial review claim in Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors (Bell). This was a challenge to the lawfulness of the consent practices adopted by the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Trust (Trust) relevant to the commencement of PBs for minors with GD. In December 2020, the High Court concluded that minors below 16 years of age are not likely to have the requisite capacity to lawfully make decisions about the commencement of PBs. This decision was noted to have potentially significant consequences. In March 2021, AB v CD & Ors (AB v CD) was decided by the English High Court. This case focused on whether parents can lawfully consent to the administration of PBs and whether they should be classed as a ‘special’ category of medical treatment necessitating an application to the court in future cases. The High Court held that parents are lawfully able to consent to PBs for the treatment of GD, and that such treatment should not be regarded as ‘special’. Then, in September 2021, the High Court’s decision in Bell was overturned by the Court of Appeal.
The aim of this article is to outline the Australian legal position concerning minors and treatment for GD and compare this with the English cases outlined above. Four key themes are identified from the High Court’s judgment in Bell. These themes are identified because they share significant overlap with the reasoning expressed in the Australian cases that first addressed the same issue, dating back to 2004. These similarities are explored, together with an overview of how judicial reasoning in Australia has developed since the initial Australian jurisprudence on this topic. The Australian position provides an important point of comparison because, as outlined below, until 2017 there was a general requirement under Australian law to obtain court authorisation for the commencement of Stage 2 treatment, or for the court to determine the minor’s competency to consent. Furthermore, recent Australian case law suggests an ongoing need for court involvement in some circumstances. Consequently, there is a significant body of Australian case law that can be compared with the recent English jurisprudence, particularly the reasoning of the High Court in Bell, which suggested that court oversight of such decisions was necessary. A central issue in both the Australian and English case law on this topic is the question of whether courts should have oversight of decisions about the commencement of hormone treatment for GD. As I discuss, the cases that consider this issue in the respective jurisdictions have analysed the question of whether the court should oversee such decisions using different legal frameworks. In Australia, the law has developed predominantly under the body of law relevant to ‘special medical procedures’, which is focused on parental consent and is outlined in part II. In contrast, the recent English cases have focused mainly on the issue of minors’ competency to make their own medical decisions. Despite the difference in these legal frameworks, the comparison shows many similarities in reasoning between the early Australian case law and the recent English jurisprudence. It also demonstrates that in Australia, there has been a significant shift in judicial thinking on the topic.
In part II, I outline the Australian legal principles relevant to minors and consent to medical treatment, with a particular focus on the law relevant to ‘special medical procedures’. These legal principles are central to the Australian legal framework in this area because they have been relied upon as the basis for the court’s involvement in GD cases. I then provide an overview of the key Australian legal developments specific to minors and hormone treatment for GD. In part III, I outline the recent English decisions on PBs and consent, and summarise the four key themes from these cases which demonstrate a similarity in reasoning with the earlier Australian jurisprudence. The four themes identified from the jurisprudence for this purpose include (i) the view that GD as a condition is unique and that hormone treatment for the condition is unlike other medical treatment, therefore necessitating court oversight; (ii) that minors are not likely to reach a level of competency for the purpose of consenting to Stage 1 and/or Stage 2 treatment; (iii) that decisions about Stage 1 treatment cannot be separated from Stage 2 treatment and the two stages should be considered together; and, (iv) that the seriousness and gravity of the treatment for GD should result in the treatment being regarded as ‘experimental’ or ‘special’. These themes are then used to explore relevant Australian and English jurisprudence, to highlight the similarities, and to show the progression in Australian judicial reasoning. Finally, in part IV, I conclude on these similarities and their significance for future cases, suggesting that the changes in judicial approach in Australia should be considered and adopted in future English decisions, should such cases arise.
