Revisiting Gender CARE: An alternative framework for resolving disputes over gender healthcare for children and adolescents
Michelle Taylor-Sands1, Georgina Dimopoulos2
1Melbourne Law School, Parkville, Victoria, Australia, 2Southern Cross University
Abstract
Gender affirming healthcare for transgender and gender diverse children and adolescents is a polarising issue, which continues to be scrutinised by the courts, media and politicians. While the Australian family courts have gradually ceded their role in authorising gender-affirming hormone treatment, they are still involved in cases of ‘genuine dispute or controversy’. The decision of the Family Court of Australia in Re Imogen [No 6] has reignited debate about whether the courts should be involved in resolving disputes about diagnosis, consent or treatment where a child or adolescent is Gillick competent.
In this paper, we propose an alternative forum for resolving disputes over gender-affirming treatment for Gillick competent children and adolescents. Drawing on current research, we propose four overarching ‘CARE’ principles to guide the development of a holistic, robust decision-making framework beyond the courts: (i) Communication: that is open, accessible and provides clarity about decisions to be made and roles of the patient, parents and clinicians; (ii) Autonomy: respect for the patient’s evolving autonomy and decision-making capacities; (iii) Relationships: promoting supportive relationships between the patient, their family and the treating team; and (iv) Expertise: interdisciplinary input to inform and support the decision-making process. We also suggest a staged process for resolving disputes, including mediation and independent expert oversight.
Our framework aims to minimise court involvement in gender-affirming healthcare; support Gillick competent children and adolescents to make informed decisions about their health; protect healthcare providers against legal action; and contribute to the ongoing body of evidence about gender care options and outcomes.
Biography
Michelle is an Associate Professor and Director of the Health Law and Ethics Network and the Health and Medical Law Masters at Melbourne Law School. She is also a legal member of the Victorian Mental Health Tribunal and the Patient Review Panel. She specialises in health law and bioethics, with a focus on reproductive health and the welfare of the child.
Dr Georgina Dimopoulos is a socio-legal researcher and an Australian lawyer with experience across higher education, government, courts and legal practice. She researches in family law, children’s rights and family violence. She is a Senior Lecturer, Law and a Research Associate, Centre for Children and Young People at Southern Cross University.