What are the legal risks of youth medical transition?

Written By Bel H

Gender affirming care is a new and radical treatment protocol. The speed at which Australian institutions have embraced the model has left a number of legal and ethical uncertainties and risks in their wake.

Are doctors at risk of medial negligence claims?

Stories of patient’s 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 towards youth medical transition.

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 after.

Australian treatment guidelines don’t identity 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 for 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.”

The court case Rogers vs Whittaker (1992) confirmed that medical practitioners are obligated to reveal even a ‘one in ten thousand possibility’ of a material side effect to their patients.

Research is continually expanding our knowledge of the known or possible risks of puberty blockers and cross sex hormones. Our rapidly evolving understanding presents a challenge to Australian doctors seeking to obtain informed consent from their patients.


Can patients give informed consent?

Many legal and medical experts doubt the ability of minors consent to treatments that could leave them infertile.

Most Australian treatment guidelines are modeled on the standards 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 confirm that WPATH, whose Standards of Care are referenced or relied upon by many Australian clinics, is fully aware that children cannot give informed consent to life-altering hormonal and surgical interventions. One WPATH member is revealed to have said:

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


Is it legal to prescribe young patients with treatments, like cross sex-hormones, that are known to be harmful?

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

In 2020 it was ruled Family Court approval would be required for gender affirming treatments in cases where there was a dispute about a child's diagnosis, treatment or their capacity to give informed consent (also known as Gillick competence). This ruling was based on the understanding that the diagnosis and treatment of gender dysphoria was 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.

The 2023 updates appears to expand access to Gender Affirming Care beyond the intent of existing legislation. Emeritus Professor Patrick Parkinson has expressed doubts about the legality the protocols, but they have so far been allowed to continue.

The ways in which 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.

In 2024, regulators were also forced to issue stern warnings over a dangerous new trend in women seeking testosterone for general use. Health professionals were reporting a sudden rise in women asking about the drug, after hearing about its supposed ‘benefits’ for women on soon social media

Efforts from regulators to limit unnecessary use and prescribing of synthetic hormones stand in direct contradiction 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.

Lately, gender affirming advocates appear to be having things their way. In 2015, restrictions were placed on the provision of testosterone due to concerns of unnecessary prescribing to male patients. Not long after, these restrictions were loosened at the behest of trans activists, who lobbied for the right of female patients to have access the drug, despite the fact that exogenous testosterone has known harmful side-effects in women.

Bel H