What Are The Legal Risks Of Youth Medical Transition?

Written By Bel H

The swift adoption of the gender affirming model by Australian institutions has outpaced the development of robust evidence, leading to significant legal and ethical challenges.

Are doctors at risk of medical negligence claims?

Stories of patient harmed by gender-affirming care have risen steadily in the past 5-10 years.

Among them are a growing number of Australian detransitioners, including: Jay Langadinos Courney Coulson, Ollie Davies, and former patients featured on Channel 7’s De-transitioning.

Australia’s awareness of detransiton and regret is lagging slightly behind the USA and the UK:

Are medical insurers ceasing or raising premiums for gender-affirming care?

Many medical insurers still offer coverage to gender affirming doctors. However, some are beginning to display a more cautious approach.

In 2023, the Australian medical indemnity insurer MDA announced that due to the risk of “potentially high-value claims arising from irreversible treatments", it had decided to restrict coverage for private practitioners who perform gender-affirming treatments on minors. Their decision wasn't without a cost - the Australian Medical Students’ Association disaffiliated from MDA in protest soon afterward.

Australian treatment guidelines don’t identify a minimum age for the commencement of treatment, and family court records show that a child as young as 10 has received puberty blockers. Additionally, a diagnosis of gender dysphoria is not predictive of whether a young person will persist in their desire to transition.

For similar reasons, international insurers are also ceasing coverage, or dramatically raising premiums for practitioners who provide gender-affirming care.

Are patients fully informed about possible side effects?

Australian treatment guidelines neglect to inform patients of many known or possible risks of puberty blockers and cross-sex hormones.

In 2020, 70 medical practitioners signed a letter to the Federal Health Minister warning that withholding information about the risks of current gender-affirming treatments could expose Ministers of Health to medico-legal culpability:

“We warn that the experimental nature of 'affirmation therapy' with its withholding of publicised side effects renders Ministers of Health medico-legally vulnerable noting the High Court of Australia's ruling in Rogers v Whitaker [1992] HCA 58.”

Research is continually expanding our knowledge of the known or possible risks of puberty blockers and cross-sex hormones. This evolving landscape of evidence and expert opinion presents significant challenges for Australian doctors in ensuring patients are fully informed of the potential consequences of these treatments.

Can patients give informed consent?

Many legal and medical experts doubt the ability of minors to consent to treatments that can have life-long consequences, including infertility. .

Most Australian treatment guidelines are modeled on standards of care written by WPATH, the World Professional Association for Transgender Health. In 2024, leaked internal files from global transgender healthcare body WPATH confirmed widely-held fears that gender affirming care is an unethical practice, more akin to cosmetic surgery than to healthcare.

The leaks revealed that WPATH is fully aware that children cannot give informed consent to life-altering hormonal and surgical interventions. One WPATH member is quoted as saying:

 “it’s out of their developmental range to understand the extent to which some of these medical interventions are impacting them.” - WPATH Files

This acknowledgment raises critical questions about the validity of informed consent when it comes to administering puberty blockers and other treatments to minors.

Can treatment proceed without a formal diagnosis?

In 2023, updates were made to gender affirming treatment guidelines allowing non-specialists like General Practitioners to prescribe h-rmones to minors without a formal diagnosis of gender dysphoria, and without receiving care from an expert, multidisciplinary team.

In 2020 it was ruled that in cases where there is a dispute about a child's diagnosis, treatment, or their capacity to give informed consent, Family Court approval is required before gender affirming treatments can proceed.

This ruling was based on the understanding that the diagnosis and treatment of gender dysphoria would be provided by expert clinicians in hospital settings.

However, the 2023 updates to treatment guidelines sidelined the role of expert clinicians. Despite the risks, they recommend that General Practitioners should be primary treating physicians, able to administer puberty blockers and hormones to patients without requiring additional referral. These updates appear to expand access to gender affirming care beyond the intent of existing legislation.

Professor of Law Patrick Parkinson AM and the President National Association of Practicing Psychiatrists Dr Philip Morris AM have expressed doubts about the legality of these protocols, but they have so far been allowed to continue.

The ways in which the 2023 changes to the treatment guidelines, the Family Court's ruling, and state and territory medical consent laws interact with one another haven't yet been fully tested.

Is the model safeguarded against patient fraud or drug seeking?

Synthetic hormones are usually tightly controlled substances. Of particular concern to regulators are thriving black markets in testosterone — a performance and image-enhancing drug.

Testosterone is also closely monitored in clinical settings. In 2015, the Pharmaceutical Benefits Advisory Committee (PBAC) placed restrictions on the provision of testosterone due to a marked uptick in use and concerns about ‘unnecessary prescribing.’

In 2024, regulators were forced to issue stern warnings over a dangerous new trend in women seeking testosterone for general use. At that time, health professionals were reporting a sudden rise in the number of female patients asking about the drug, after hearing about its supposed ‘benefits’ for women on social media.

Efforts by regulators to limit the unnecessary use and prescribing of synthetic hormones stand in direct contrast to the attitudes of gender-affirming advocates. Under gender-affirming guidelines, prescription hormones are readily available for patients who present as transgender - sometimes in the absence of a mental health examination or a formal diagnosis.

For example, not long after restrictions were placed on the prescribing of testosterone by PBAC in 2015, they were loosened at the behest of trans activists lobbying for the right of female patients to have access to the drug (despite the fact that exogenous testosterone has known harmful side-effects in women).

Bel H