Parental consent and the treatment of transgender youth: the impact of Re Imogen

Kelly, Fiona; Giordano, Simona; Telfer, Michelle M; Pang, Ken C

doi:10.5694/mja2.51431

Topics

Sexual health

Ethics and law

Social determinants of health

Pediatric medicine

Recent legal changes are negatively affecting provision of timely medical care to Australian transgender youth

The number of transgender and gender diverse (henceforth, trans) youth seeking medical treatment has risen sharply over the past two decades in Australia and overseas.1,2 Unique legal requirements for consent to this treatment in Australia have developed through Family Court case law since 2004. Until recently, it was necessary for a young person seeking pubertal suppression or gender‐affirming hormone treatment to secure Family Court approval before treatment could commence, even in circumstances where both parents and the young person’s treating doctors supported treatment and considered it to be in their best interest, and the young person was deemed Gillick competent, which is achieved when a young person has “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.3 The requirement for court approval was removed for puberty suppression in 2013 by Re Jamie,4 but the restrictions on gender‐affirming hormone treatment remained until the Full Family Court decision of Re Kelvin in 2017.5

1 La Trobe University, Melbourne, VIC
2 University of Manchester, Manchester, UK
3 Royal Children's Hospital, Melbourne, VIC
4 Murdoch Children’s Research Institute, Melbourne, VIC

Correspondence: ken.pang@mcri.edu.au

Acknowledgements:

Ken Pang is supported by the Royal Children's Hospital Foundation and the Hugh DT Williamson Foundation, neither of which had any role in the planning, writing or publication of this article.

Competing interests:

Michelle Telfer and Ken Pang are members of the Australian Professional Association for Trans Health.

1. Pang KC, de Graaf NM, Chew D, et al. Association of media coverage of transgender and gender diverse issues with rates of referral of transgender children and adolescents to specialist gender clinics in the UK and Australia. JAMA Netw Open 2020; 3: e2011161.
2. Wiepjes CM, Nota NM, de Blok CJM, et al. The Amsterdam Cohort of Gender Dysphoria Study (1972–2015): trends in prevalence, treatment, and regrets. J Sex Med 2018; 15: 582–590.
3. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
4. Re Jamie [2013] FamCAFC 110.
5. Re Kelvin [2017] FamCAFC 258.
6. Kelly F. “The court process is slow but biology is fast”: assessing the impact of the Family Court approval process on transgender children and their families. Aust J Family Law 2016; 30: 112.
7. Telfer MM, Tollit MA, Pace CC, Pang KC. Australian standards of care and treatment guidelines for transgender and gender diverse children and adolescents. Med J Aust 2018; 209: 132–136. https://www.mja.com.au/journal/2018/209/3/australian‐standards‐care‐and‐treatment‐guidelines‐transgender‐and‐gender
8. Re Imogen (No. 6) [2020] FamCA 761.
9. O’Connell MA, Nguyen TP, Ahler A, et al. Approach to the patient: pharmacological management of trans and gender‐diverse adolescents. J Clin Endocrinol Metab 2021; 107: 241–257.
10. Priest M. Transgender children and the right to transition: medical ethics when parents mean well but cause harm. Am J Bioeth 2019; 19: 45–59.
11. Jowett S, Kelly F. Re Imogen: a step in the wrong direction. Aust J Family Law 2021; 34: 31–56.
12. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218.
13. Young L. Mature minors and parenting disputes in Australia: engaging with the debate on best interests v autonomy. UNSW Law J 2019; 42: 1362–1364.
14. A flawed agenda for trans youth [editorial]. Lancet Child Adolesc Health 2021; 5: 385.
15. Bell and Mrs A v Tavistock and Portman NHS Trust [2020] EWHC 3274 (Admin).
16. Davis LS. Transgender children and their parents struggle to cope with restrictive laws. CNN Health 2021; 22 June. https://edition.cnn.com/2021/06/14/health/trans‐kids‐care‐state‐bans‐wellness/index.html (viewed Feb 2022).
17. Rew L, Young CC, Monge M, Bogucka R. Review: Puberty blockers for transgender and gender diverse youth‐a critical review of the literature. Child Adolesc Ment Health 2021; 26: 3–14.
18. Mahfouda S, Moore JK, Siafarikas A, et al. Gender‐affirming hormones and surgery in transgender children and adolescents. Lancet Diabetes Endocrinol 2019; 7: 484–498.
19. Simons L, Schrager SM, Clark LF, et al. Parental support and mental health among transgender adolescents. J Adolesc Health 2013; 53: 791–793.
20. Australian Professional Association for Trans Health. AusPATH statement on medical gender affirmation and Re Imogen. 21 Sept 2020. https://auspath.org.au/2020/09/21/auspath‐statement‐on‐medical‐gender‐affirmation‐and‐re‐imogen/ (viewed Feb 2022).
21. Tobin J, The UN Convention on the Rights of the Child: a commentary. Oxford University Press, 2019.
22. UN Committee on the Rights of the Child. General Comment No 4 (2003): Adolescent health and development in the context of the Convention on the Rights of the Child (CRC/GC/2003/4). https://www.refworld.org/docid/4538834f0.html (viewed Feb 2022).
23. Children’s Hospitals Australasia; Association for the Wellbeing of Children in Healthcare. Charter on the Rights of Children and Young People in Healthcare Services in Australia. 2017. https://children.wcha.asn.au/sites/default/files/australian_version_final_210911web.pdf (viewed Feb 2022).
24. Clark BA, Virani A, Saewyc EM. “The edge of harm and help”: ethical considerations in the care of transgender youth with complex family situations. Ethics Behav 2020; 30: 161–180.
25. Notini L, McDougall R, Pang KC. Should parental refusal of puberty‐blocking treatment be overridden? The role of the harm principle. Am J Bioeth 2019; 19: 69–72.

Online responses are no longer available. Please refer to our instructions for authors page for more information.