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Young people’s access to gender-affirming medical care has been making headlines this week.
On Friday, federal Health Minister Mark Butler announced a review into health care for trans and gender-diverse children and adolescents.
The National Health and Medical Research Council will conduct the review.
On Thursday, The Australian published an open letter to Prime Minister Anthony Albanese calling for a federal inquiry, and a nationwide pause on puberty blockers and hormone therapy for minors.
This followed Queensland Health Minister Tim Nicholls earlier this week for new patients under 18 in the state’s public health system, pending a review.
In the United States, President Donald Trump signed an executive order this week directing federal agencies to .
This recent wave of political attention might imply gender-affirming care for young people is risky, controversial, perhaps even new.
But Australian courts have already extensively tested questions about its legitimacy, the conditions under which it can be provided, and the scope and limits of parental powers to authorise it.
What are puberty blockers?
Puberty blockers suppress the release of oestrogen and testosterone, which are primarily responsible for the physical changes associated with puberty.
They are generally safe and used in paediatric medicine for various conditions, including precocious (early) puberty, hormone disorders and some hormone-sensitive cancers.
International and domestic standards of care state that puberty blockers are reversible, non-harmful, and can prevent young people from experiencing the distress of undergoing a puberty that does not align with their gender identity.
They also give young people time to develop the maturity needed to make informed decisions about more permanent medical interventions further down the line.
Puberty blockers are one type of gender-affirming care. This care includes medical, psychological and social interventions to support transgender, gender-diverse and, in some cases, intersex people.
Young people in Australia need a medical diagnosis of gender dysphoria to receive this care.
Gender dysphoria is defined as the psychological distress that can arise when a person’s gender identity does not align with their sex assigned at birth.
This diagnosis is only granted after an exhaustive and often onerous medical assessment.
After a diagnosis, treatment may involve hormones such as oestrogen or testosterone and/or puberty-blocking medications.
Hormone therapies involving oestrogen and testosterone are only prescribed in Australia once a young person has been deemed capable of giving informed consent, usually around the age of 16.
For puberty blockers, parents can consent at a younger age.
Can a child legally access puberty blockers?
Gender-affirming care has been the subject of extensive debate in the Family Court of Australia (now the Federal Circuit and Family Court).
Between 2004 and 2017, every minor who wanted to access gender-affirming care had to apply for a judge to approve it.
However, medical professionals, human rights organisations and some judges condemned this process.
In research for my forthcoming book, I found the Family Court has heard at least 99 cases about a young person’s gender-affirming care since 2004.
Across these cases, the court examined the potential risks of gender-affirming treatment and considered whether parents should have the authority to consent on their child’s behalf.
When determining whether parents can consent to a particular medical procedure for their child, the court must consider whether the treatment is ‘therapeutic’ and whether there is a significant risk of a wrong decision being made.
However, in a landmark 2017 case, the court ruled that judicial oversight was not required because gender-affirming treatments meet the standards of normal medical care.
It reasoned that because these therapies address an internationally recognised medical condition, are supported by leading professional medical organisations, and are backed by robust clinical research, there is no justification for treating them differently from any other standard medical intervention. These principles still stand today.
What if parents disagree?
Sometimes parents disagree with decisions about gender-affirming care made by their child, or each other.
As with all forms of health care, under Australian law, parents and legal guardians are responsible for making medical decisions on behalf of their children.
That responsibility usually shifts once those children reach a sufficient age and level of maturity to make their own decisions.
However, in another landmark case in 2020, the court ruled that gender-affirming treatments cannot be given to minors without consent from both parents, even if the child is capable of providing their own consent.
This means that if there is any disagreement among parents and the young person about either their capacity to consent or the legitimacy of the treatment, only a judge can authorise it.
In such instances, the court must assess whether the proposed treatment is in the child’s best interests and make a determination accordingly.
Again, these principles apply today.
Have the courts ever denied care?
Across the at least 99 cases the court has heard about gender-affirming care since 2004, 17 have involved a parent opposing the treatment and one has involved neither parent supporting it.
Regardless of parental support, in every case, the court has been responsible for determining whether gender-affirming treatment was in the child’s best interests.
These decisions were based on medical evidence, expert testimony, and the specific circumstances of the young person involved.
In all cases bar one, the court has found overwhelming evidence to support gender-affirming care, and approved it.
Supporting transgender young people
The history of Australia’s legal debates about gender-affirming care show it has already been the subject of intense legal and medical scrutiny.
Gender-affirming care is already difficult for young people to access, with many lacking the parental support required or facing other barriers to care.
Gender-affirming care is potentially life-saving, or at the very least life-affirming.
It almost invariably leads to better social and emotional outcomes.
Further restricting access is not the “protection” its opponents claim.
If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14. For LGBTQIA+ peer support and resources, you can also contact , (call 1800 184 527), , (support for trans, gender-diverse, and non-binary young people and their families) or (resources and community support for LGBTQIA+ young people).
Matthew Mitchell has a contract with Bristol University Press for a forthcoming book on the legal regulation of gender-affirming hormones for transgender young people in Australia.
