Justice delayed is justice denied, goes the saying. And it seems that for transgender children, the slow-moving process of the court system clashes with the time-limited, three stage process of transitioning genders. With transgender kids who have unsupportive parents having to obtain court process for all three stages, for some children it means that their ability to successfully transition could be compromised. With last year’s important decision in Re: Imogen, there was much-needed clarification of some of the legalities of transgender children accessing medical treatments. However, critics have said that the legal changes could be harmful, with the Medical Journal of Australia (MJA) now reporting that transgender youth are being “penalised” by the decision.
Family court involvement in allowing transgender youth to access medical treatment has been a rollercoaster ride over recent years. Decisions have been made, then reversed, then affirmed. There has been, and continues to be, a lot of confusion on the subject.
In the landmark 2017 case Re: Kelvin, it was ruled that court approval for transgender medical treatment for a Gillick competent child was not needed. This provided clarity as well as removing the court burden for youth and doctors. Australian standards of care and treatment guidelines for trans and gender diverse youth were rewritten to reflect the new ruling. The ruling specified what would happen only if there was consent from both parents, however.
But then in 2020, the ruling in Re: Imogen tackled the question of parental consent for a Gillick competent transgender child, when there is a dispute between parents over consent. And it held that court action is needed if there is not unanimous consent from the parents, clarifying the ruling in Re: Kelvin.
The MJA says the requirement for consent from both parents to avoid court is a big problem. Many transgender youth are not supported equally by both parents, and this requirement makes them vulnerable to having to deal with a parent who may be hostile, unaccepting or even violent:
“This may [force] a young person to re-engage with a parent who has a history of perpetrating family violence, to disclose confidential personal information to an estranged or uninvolved parent, or to enforce legal barriers (including costs) when consent cannot be established.”
Describing it as one of several ethical issues outlined, the MJA said “a lack of family support should be regarded as a vulnerability and not as a means to impede medical care”.
Another serious problem is the fact that the ruling could “undermine the idea of Gillick competency, as it “severely diminishes the decision-making capacity of competent trans young people”.
The MJA concludes that “the clinical implications of Re: Imogen are potentially devastating.” That’s because time is of the essence with transitioning youth. And being able to access treatments in a timely manner is associated with improved mental health, the paper notes.
The professional body for trans health, rights and wellbeing practitioners, Australian Professional Association for Trans Health (AusPATH), released a statement after Re: Imogen in which it noted the “distress” this ruling would cause not only the trans community but also to medical professionals involved in care for transgender youth. The main problems AusPATH identified in its statements include:
- Delays and uncertainty regarding treatments,
- Significant/prohibitive extra costs.
- If there’s an absent/unsupportive parent, mandatory court process
- Extra burden on the medical profession with complex processes involving parents and requiring court advocacy.
Source: Medical Journal of Australia
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