Transgender Young People: Legal and Ethical Issues

In this blog, FLiP Director David Allison sets out his thoughts and advice on the legal and ethical issues for adults and children who wish to transition.

I recently had the privilege of chairing a panel discussion for the International Academy of Family Lawyers “When children and adults transition: challenges for families and the law”.  The discussion dealt with the issue of adults and children who cannot accept their birth gender and take the difficult decision to transition to the other sex.

Trans people are becoming increasing visible and many jurisdictions now allow for adults to legally change their gender. What is required to change gender varies significantly between jurisdictions. I think there is an increasing recognition that the decision to transition is a difficult one that should be a matter of choice not requiring diagnosis of a disorder which arguably stigmatizes those who make the decision to change gender. However the legal systems in most jurisdictions lag behind and require a formal diagnosis of gender dysphoria. There are often various other hurdles that individuals have to overcome.

There would also appear to be an increasing number of young people who are uncomfortable in their birth gender – many of us will know someone whose child is questioning their gender or have children with friends at school who are exploring gender issues. We now also have the concept of gender fluidity by which individuals often express a desire to remain flexible about their gender rather than conforming to a societal definition of male or female.

In a world in which categorization of everyone by gender (and sub-categorising women into married or unmarried) is seemingly vital (how many times are we all required to state whether we are Mr, Miss, Mrs or Ms before registering for a service or even shopping on line?). This must be monumentally difficult. If we then add to the mix the prejudice that many trans people face we have to ask why this is now so prevalent. It surely cannot be a matter of choice.

The panel for this particular discussion included speakers from New Zealand, Australia, England and New York.

I learned that there are generally 3 stages of treatment for under 18’s who decide to change gender usually following a diagnosis of Gender Dysphoria. Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately three to four years. The aim of stage 1 treatment is to reduce the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty. Stage 2 Treatment or “gender affirming hormone treatment” involves the use of either estrogen to feminise the body in those who have a female gender identity or the use of testosterone to masculinise the body in those who are male gender identity. Stage 3 treatment involves surgical changes to the body.

The legal question for under 18s undergoing such treatment (none of the jurisdictions represented on the panel allow stage 3 treatment before adulthood) is whether they are legally competent to make decisions about treatment.

In Australia that is a decision for the court whereas in New Zealand it is a matter for the treating physician. Until recently the position in England was also that the decision about competence was one for the treating physician. However, the English panel member spoke about the recent case reported as  Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 in which the administrative court decided that it would be very rare for anyone under 18 to fully appreciate the long term consequences of the decision to undergo treatment and as such they were unlikely to be competent.

That decision is subject to appeal and is currently stayed pending appeal but should it stand it will result in a requirement for court intervention before such treatment is started. In the year 2019/2020 161 children were referred for treatment by the NHS Gender Identity Development Service through the Tavistock & Portman clinic (the clinic at the centre of this case) and it is understood that an increasing number are currently undergoing treatment.  If this case stands all such children will in future require a court order before undergoing treatment.

Of all the speakers the most moving presentation came from the New York speaker who talked not as a legal expert but as the mother of a child in the process of transitioning. She talked about the progression of her (then son)’s decision to change gender and the process for her and her family accepting that decision.  What was palpably clear was that the decision to transition is difficult and painful for the individual and for their families.

Whatever the reasons for it and the legal requirements for treatment it is undoubtedly the case that we will all come into contact with people who do not conform to gender stereotypes. If we are not going to add to the difficulties faced by these individuals we must get the language right and we can only do that by asking and being open to how they feel about gender.