The Legal Recognition of Transgender Children

Abstract

Around the world, a majority of jurisdictions either partially or fully exclude transgender (trans) children from legal gender recognition pathways. Gender recognition for minors involves myriad (often highly complex) considerations. While deciding whether to formally acknowledge trans youth is often framed as a ‘welfare’ or ‘best interests’ question, answering that question requires a nuanced appreciation of existing medical and social science research. Historically, medico-legal responses to trans children have emphasised ‘ignoring’ or ‘corrective’ strategies. There was a concern (still prevalent in contemporary academic and politically commentary) that affirming trans expression would encourage ‘confused’ or ‘impressionable’ young minds. In recent years, however, a growing consensus (backed up by extensive empirical data) has developed in favour of affirmative interventions. There is increasing appreciation that acknowledging lived-experiences of gender (howsoever manifested) enhances mental health outcomes for trans youth. Although policies of affirmation might (in general) best serve the interests of trans children, law-makers should not adopt child-inclusive amendments if (in practice) they would compromise well-being. Drawing upon existing medical and social science research, this paper asks whether it is possible to introduce affirmative policies which adequately protect persons under the age of majority. Among the factors explored, the paper will consider the possibility of reliably identifying trans youth who persist in a stable gender identity beyond puberty. In recent years, much political and media debate around trans youth has centred on the potential negative consequences for children who ‘de-transition’ in adolescence or early-adulthood. The paper will also address issues surrounding capacity to consent (to gender recognition), claims regarding the premature medicalisation of young bodies and alternative options arising from social transition. Ultimately, the paper concludes that, while gender recognition for minors remains a question of extreme political sensitivity, there is growing evidence that trans children can (and should) be affirmed through safe, secure and child-centred policies.