Tuesday, 03 September 2019

How did the Australian Get it so wrong on Parental Rights vs. Gillick Competency

How did the Australian Get it so wrong on Parental Rights vs. Gillick Competency

By Eloise Brook

On 30 August the Australian published an article Transgender Treatment: law puts parental authority to side raising concerns about the use of Gillick competency in assessing teenagers in making decisions about their own health. The author, Angela Shanahan frames her article in terms of a contest between parental rights vs. the power of doctors to make life altering decisions about a child’s competency in some medical matters; and refers over and over again to the supposed epidemic of transgenderism in children. 

 However while this appears to be a move from the newspaper to shore up support in its ongoing criticism of gender affirming care, it shows a fundamental misunderstanding about how the rights of children, parents and the processes around gender affirming care work in Australia.

 Let’s start with Gillick competency. Gillick competency gives doctors the right to treat minors under the age of 16 against their parents wishes if they deem the child to be of sufficient enough maturity to understand the implications of that treatment. Gillick competency was originally a test to see whether GPs were able to prescribe contraception to sexually active 14 and 15 year old girls. As Shanahan herself points out in her article, doctors see prescribing contraception as a reasonably straight forward case of harm-minimisation, preventing a pregnancy that could have unwanted repercussions on a 14 or 15 year old’s safety and future.  And due to the open ended nature of the ruling, Gillick competency does apply to other medical treatments concerning minors.

From doctors prescribing contraception to sexually active 14 and 15 year olds the article then attempts to draw a connection to transgender children. Shanahan laments the unexpected consequence of the shift to assessing Gillick competency in minors with the rising perils of an epidemic of transgenderism in children. Her article implies that Gillick competency has opened the flood gates to allow minors to now be able to access gender affirming treatment. Shanahan however is being entirely disingenuous. All three stages of gender affirming treatment by GPs and endocrinologists are specifically covered in law.  

The Three Stages of Gender Treatment.

There have been a number of high court cases leading to fundamental changes around the treatment for minors with gender dysphoria, and up until 2013 the only way that families could seek treatment was through the high court. This changed in 2013 with the case known as Re Jamie when it was decided that the entirely reversible treatment of puberty blockers (Stage One) would be made available without court order. It was then changed again in 2017 with Re Kelvin when it was decided that partially reversible treatment of cross-sex hormones (Stage Two) would also be made available. Stage Three consists of irreversible surgery, but as of a recent court ruling may or may not be accessible outside of the high court. 

Most importantly, it is a condition of both stage one and stage two treatment that minors must have parental consent. Let me state that again. Stage One and Two, puberty blockers and cross sex hormones are only available to minors with adult consent. The only exception being where a child has the means to take their case to court: hardly the ‘doctor knows best’ treatment free-for-all described by Shanahan. 

The most disturbing thing in all of this, is not that 14 or 15 year olds can access the pill to prevent unwanted pregnancy, or that trans and gender diverse children can, with their families support, get necessary care without having to go through the financial burden of appearing before the high court. The disturbing thing is that a position on contraception and transgender children can be so easily put forward on misinformation around parental exclusion, and the disingenuous passing off of a religious opinion as fact.  

Is Shanahan really calling for us to consider a return to levels of teenage pregnancy not seen since doctors had the legal clarity to prescribe minors contraception? Hopefully not.

More likely Shanahan and The Australian felt emboldened enough to promote an ideological position on Gillick competency because of the lack of understanding of the general public and uncertainty around transgender children. This seems to be a continuation of the ongoing campaign to discredit organisations and doctors that support transgender and gender diverse children. The problem here is not that they are wrong to raise questions about how children and young people access affirming care. The danger is that the Australian can continue its campaign of poorly fact-checked opinion, that it can continue to exploit ignorance around transgender children much faster than advocates and allies are able to debunk them.