Consent for Medical Treatment of Trans Youth

227 Pages·2022·1.478 MB·English

by  Steph Jowett

consent for medical treatment of trans youth
Access to medical treatment for trans youth occupies a haphazard and dynamic legal
landscape. In this comprehensive scholarly analysis of the historical and current legal
principles, Steph Jowett examines the medico-legal nexus of regulation of this health-
care in Australia and in England and Wales. This is informed by an in-depth discussion
of the medical literature on treatment for trans youth, including clinical guidelines, the
outcomes of treatment and outcomes for trans youth who are unable to be treated. With
illustrative examples and clear language, Jowett argues that legal barriers to clinical
practice should be congruent with and reflect the current state of medical knowledge.
Not only does Jowett assess the extent to which key legal decisions have been consistent
with medical knowledge in the past, but she offers a nuanced, comparative perspective
that will inform reform efforts in the future.
steph jowett is a lecturer at Queensland University of Technology and a member of
the Australian Centre for Health Law Research. Her research focuses on the intersection
of children’s health and law. She was made a fellow of the Higher Education Academy
in 2020.
CAMBRIDGE BIOETHICS AND LAW
This series of books – formerly called Cambridge Law, Medicine and Ethics – was
founded by Cambridge University Press with Alexander McCall Smith as its first editor
in 2003. It focuses on the law’s complex and troubled relationship with medicine across
both the developed and the developing world. In the past twenty years, we have seen
in many countries increasing resort to the courts by dissatisfied patients and a growing
use of the courts to attempt to resolve intractable ethical dilemmas. At the same time,
legislatures across the world have struggled to address the questions posed by both the
successes and the failures of modern medicine, while international organisations such
as the WHO and UNESCO now regularly address issues of medical law. It follows that
we would expect ethical and policy questions to be integral to the analysis of the legal
issues discussed in this series. The series responds to the high profile of medical law
in universities, in legal and medical practice, as well as in public and political affairs.
We seek to reflect the evidence that many major health-related policy and bioethics
debates in the UK, Europe and the international community over the past two decades
have involved a strong medical law dimension. With that in mind, we seek to address
how legal analysis might have a trans-jurisdictional and international relevance. Organ
retention, embryonic stem cell research, physician-assisted suicide and the allocation
of resources to fund health care are but a few examples among many. The emphasis of
this series is thus on matters of public concern and/or practical significance. We look
for books that could make a difference to the development of medical law and enhance
the role of medico-legal debate in policy circles. That is not to say that we lack interest
in the important theoretical dimensions of the subject, but we aim to ensure that theo-
retical debate is grounded in the realities of how the law does and should interact with
medicine and health care.
Series Editors
Professor Graeme Laurie, University of Edinburgh
Professor Richard Ashcroft, City, University of London
Consent for Medical Treatment
of Trans Youth
STEPH JOWETT
Queensland University of Technology
University Printing House, Cambridge cb2 8bs, United Kingdom
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education, learning, and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781316514207
doi: 10.1017/9781009082761
© Steph Jowett 2022
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2022
A catalogue record for this publication is available from the British Library.
isbn 978-1-316-51420-7 Hardback
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URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents
Acknowledgements page vii
Table of Cases ix
Table of Statutes xiii
1 Introduction 1
2 Gender Diversity in Children and Adolescents 12
3 Medical Treatment for Trans Youth 44
4 Australian Law Governing Consent to Medical Treatment
for Trans Youth 81
5 Law Governing Consent to Medical Treatment for Trans Youth
in England and Wales 132
6 Comparison of the Law in England and Wales with Australia 160
7 Congruence of the Law with Medicine 169
8 Future Directions for Law Reform 202
Index 209
v

Acknowledgements
This book would not have been possible without the support of my doctoral super-
visors, ‘Captain’ Professor Ben Mathews and Associate Professor Shih-Ning Then,
who were as generous with their feedback as they were with their pep talks. I am also
indebted to Sinead Prince for her incisive feedback and research assistance. Lastly,
but most importantly, to my wonderful husband Jeremy, I’m endlessly grateful for
your daily support and encouragement.
vii

Table of Cases
australia
Attorney-General (Cth) v Kevin and Jennifer (2003) 30 Fam LR 1 93, 170
Central Queensland Hospital and Health Service v Q [2016] QSC 89 88
Director General, Department of Community Services and Another; Re Thomas
(2009) 41 Fam LR 220 88, 127
Farah Constructions Pty Ltd v Say-Dee Pty Ltd 230 CLR 89 109
In Re A (1993) 16 Fam LR 715 88
In the Marriage of GWW v CMW (1997) 21 Fam LR 612 87, 88, 93
L v B (2004) 32 Fam LR 169 88
Mains v Redden (2011) 46 Fam LR 400 88
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219
CLR 365 90
P v P (1994) 181 CLR 583 113
Re a Declaration Regarding Medical Treatment for “A” [2020] QSC 389 118–119, 126
Re: Alex (2009) 42 Fam LR 645 94–95
Re: Alex (Hormonal Treatment for Gender Dysphoria) (2004) 31 Fam LR 503 91–104,
109, 123–125, 128, 130, 164, 169–177, 180–189, 193–196, 199
Re: Ashley [2015] FamCA 373 90
Re: Baby A [2008] FamCA 417 88
Re Baby D (No 2) (2011) 5 Fam LR 313 87, 88, 90
Re: Bernadette (Special Medical Procedure) (2010) 43 Fam LR 467 95–97, 189–191, 197
Re: Bobbie [2017] FamCA 974 105
Re: Brodie (Special Medical Procedures) [2008] FamCA 334 127
Re: Carla (Medical Procedure) [2016] FamCA 7 88
Re: Chloe [2018] FamCA 1006 115
Re: Eddie (No 2) [2017] FamCA 1001 114
Re: Elliott [2017] FamCA 1008 125
Re: G2 [2021] FCWA 98 119–120, 125
Re: Helen [2010] NSWSC 1560 88
Re: Imogen (No 6) [2020] FamCA 761 8, 117–129, 164, 166–167, 203, 206
Re Inaya (Special Medical Procedure) (2007) 38 Fam LR 546 88
ix