Consent to Treatment for Transgender and Intersex Children

Abstract

More than a decade has passed since the landmark High Court decision in Marion’s Case,¹ where the Court authorised the sterilisation of a young woman who suffered from a disability. Recently, the principles established in that case were applied by the Family Court in a different context – for the provision of hormonal treatment for a 13 year old child,² some aspects of which are irreversible. Previously, the Family Court had authorised gender reassignment surgery for a child suffering from a physical, congenital condition,³ but notably in Re Alex, the subject child suffered no identified physical condition indicating treatment, but from an identified psychological condition, gender identity dysphoria.

This article considers the issues raised by recent applications of the principles relating to the capacity of children to consent to medical treatment, including the decision in Re Alex and the application of those principles to transgender and intersex children. While not all children or adults who identify as transgender or intersex choose the long and difficult path of gender reassignment, some will choose surgical gender reassignment or hormonal treatment at some stage of their lives. In cases where it is proposed that a minor undergo such treatment, the application of the principles of child consent poses particular difficulties.