Abstract:
Although the recent concepts ‘gender dysphoria’ (according to the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders, 2022) and ‘gender
incongruence’ (as defined in the World Health Organization’s 2022 International
Classification of Diseases, ICD-11) may seem to refer to recent phenomena, research
has shown that gender diversity has affected individuals since the earliest times.
Recent years have seen a rapid increase in the number of adolescents and children
diagnosed with gender dysphoria. The prevalence of gender dysphoria is also
reflected in growing public attention and fierce debates regarding gender
reassignment procedures. Despite opposition to the procedures, an increased
acceptance of gender diversity in some parts of the world has been noted,
accompanied by the emergence of adolescent gender affirming health care and the
establishment of gender responsive health services. Not all adolescents affected by
gender dysphoria are able to express their gender incongruence from an early stage,
often leading to feelings of social alienation, anxiety and depression. Past medical
practices, as this thesis shows, have created unintended barriers to care for genderdiverse
adolescents. Adolescents and children were initially not incorporated in clinical
practice guidelines and standards of care issued by the World Professional
Association for Transgender Health (WPATH), an international body that sets the
standards of care for transgender medicine. In recent years, WPATH has
recommended medical interventions for adolescents and children with gender
incongruence. This is because delaying or minimising such medical interventions may
prolong the manifestation of gender dysphoria in adolescents and children. Early
intervention has been found to have a positive effect on the psychological well-being
and social functioning of these children, as well as establishing an external physical
appearance more closely aligned with their gender identity. Despite the
recommendation of early medical intervention, the optimal age of introducing genderaffirming
therapies remains a contested issue in this sensitive field of medicine and
law.
The thesis identifies several legal challenges obstructing adolescents’ access to
gender affirming health care in South Africa. Drawing on a comparative legal overview
of both proactive and restrictive approaches regarding the provision of gender
affirming care in Australia, the United Kingdom, New Zealand, Canada and Denmark, the thesis postulates that the current South African legal framework governing gender
affirming health care fails to meet the bests interests of children and adolescents
suffering from gender dysphoria. In order to address this, the thesis first explores,
through the lens of the best interests of children, different perspectives regarding
children and adolescents’ informed consent to gender affirming health care. Secondly,
the thesis concludes with sound recommendations informed by the legal comparative
analysis, which provides a firm foundation for the consideration of children and
adolescents’ access to gender affirming health care. This foundation will promote
ongoing civil discourse and deliberative dialogue toward better shared decisionmaking
in adolescent gender affirming health care and beyond. In the final instance,
the thesis demonstrates how access to gender affirming health care services must be
grounded in a human rights discourse, strengthened by the application of the yardstick
of the best interests of the child.
