Analyzing consent laws for trans and gender diverse minors seeking gender-affirming hormone treatment: a critique of australian jurisprudence and gillick competency

Abstract

This article examines and critiques the Australian legal framework governing minors’ ability to consent to gender-affirming hormone treatment, with a focus on the application of the Gillick v West Norfolk and Wisbech Area Health Authority decision. The Gillick principle, which allows minors to consent to medical treatment if they demonstrate sufficient maturity and understanding, is well-established in law. However, Australian jurisprudence applying Gillick to gender-affirming treatment for minors with gender dysphoria has diverged from the original reasoning and its contemporary interpretations. The article traces the development of Australian case law, highlighting how it has misinterpreted Gillick by adopting an overly paternalistic approach. This has led to requirements such as mandatory court oversight or parental consent, even for minors deemed Gillick competent, which undermines their autonomy. The analysis begins by outlining the foundational principles of Gillick and its subsequent interpretations, providing a basis for evaluating Australian cases. It then reviews key Australian legal developments concerning minors’ consent to hormone treatment, critiquing the imposition of additional legal hurdles not supported by Gillick. The article argues that the current Australian approach creates inconsistencies, potentially affecting minors’ rights beyond gender-affirming care. It concludes by advocating for judicial clarification to realign the application of Gillick with its original intent, ensuring minors’ decision-making rights are upheld in gender dysphoria cases and other medical contexts. This is critical to address the broader implications of the current legal stance on minors’ autonomy in healthcare decisions.