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
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...
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| Format: | Article |
| Language: | English |
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MDPI AG
2023-03-01
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| Series: | Laws |
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| Online Access: | https://www.mdpi.com/2075-471X/12/2/26 |
| _version_ | 1797604700744318976 |
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| author | Malcolm K. Smith |
| author_facet | Malcolm K. Smith |
| author_sort | Malcolm K. Smith |
| collection | DOAJ |
| description | 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. |
| first_indexed | 2024-03-11T04:50:28Z |
| format | Article |
| id | doaj.art-d8dc8de5fe314fb682455e8116ba9ef8 |
| institution | Directory Open Access Journal |
| issn | 2075-471X |
| language | English |
| last_indexed | 2024-03-11T04:50:28Z |
| publishDate | 2023-03-01 |
| publisher | MDPI AG |
| record_format | Article |
| series | Laws |
| spelling | doaj.art-d8dc8de5fe314fb682455e8116ba9ef82023-11-17T20:04:26ZengMDPI AGLaws2075-471X2023-03-011222610.3390/laws12020026Leading Gillick Astray? An Analysis of the Law of Consent Relevant to Trans and Gender Diverse Minors and the Commencement of Gender-Affirming Hormone TreatmentMalcolm K. Smith0Griffith Law School, Griffith University, Nathan, QLD 4111, AustraliaThis 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.https://www.mdpi.com/2075-471X/12/2/26children and consentgender affirming hormone treatment<i>Gillick</i> competencygender dysphoriagender diversity |
| spellingShingle | Malcolm K. Smith 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 Laws children and consent gender affirming hormone treatment <i>Gillick</i> competency gender dysphoria gender diversity |
| title | 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 |
| title_full | 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 |
| title_fullStr | 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 |
| title_full_unstemmed | 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 |
| title_short | 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 |
| title_sort | 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 |
| topic | children and consent gender affirming hormone treatment <i>Gillick</i> competency gender dysphoria gender diversity |
| url | https://www.mdpi.com/2075-471X/12/2/26 |
| work_keys_str_mv | AT malcolmksmith leadinggillickastrayananalysisofthelawofconsentrelevanttotransandgenderdiverseminorsandthecommencementofgenderaffirminghormonetreatment |