Regulating gender-affirming medical care for trans children. Towards a children’s right-centered approach

Abstract

In recent years, the regulation of gender-affirming medical care for children has undergone significant changes in several Western jurisdictions. Gender-affirming medical care includes treatments recognized by major medical associations as the standard of care for adolescents with gender dysphoria. However, legislatures in 25 U.S. states have enacted laws banning this care and England and Wales have greatly restricted it. Other countries continue to allow access, though other questions have arisen. In Australia, recent case law has created uncertainty over whether courts should intervene in disputes between competent children and their parents about pursuing treatment or the child's competence. Given the diversity of the law dealing with the matter in different jurisdictions, this study aims to identify common principles for the development of a children’s rights centered approach for regulating gender-affirming medical care. To this end, it analyses three models: the 2021 Arkansas SAFE Act, as the example of the banning approach; restrictions adopted in England and Wales following the Cass Review, as the example of the restrictive approach; and Australia's case law, as the example of the gender-affirming approach. The Australian example, in particular, highlights issues that have emerged with regards to the ability of children to make autonomous choices about their healthcare.