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.