Leading Gillick Astray? An Analysis of the Law of Consent Relevant to Trans and Gender Diverse Minors and the Commencement of Gender-Affirming Hormone Treatment

oleh: Malcolm K. Smith

Format: Article
Diterbitkan: MDPI AG 2023-03-01

Deskripsi

This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of <i>Gillick v West Norfolk and Wisbech Area Health Authority</i>. Although the principle of <i>Gillick</i> competency is well recognised in law, the Australian legal developments that apply <i>Gillick</i> to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has diverged down a path that does not align with the original reasoning in <i>Gillick</i>, nor its contemporary interpretation. I outline the reasoning in <i>Gillick</i> so that the foundational principles are considered before discussing how <i>Gillick</i> has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how <i>Gillick</i> should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment.