Jurisdiction in Trans Health
| Published date | 01 March 2020 |
| Author | Chris Dietz |
| DOI | http://doi.org/10.1111/jols.12212 |
| Date | 01 March 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 1, MARCH 2020
ISSN: 0263-323X, pp. 60–86
Jurisdiction in Trans Health
Chris Dietz∗
This article utilizes a novel framework to analyse the contested
boundaries between law and medicine. Bringing theoretical and
empirical insights together, it expands recent socio-legal scholarshipon
jurisdiction. Jurisdictional analysis is conducted in an under-researched
area of health law – namely, the accessibility of trans-related health
care. The article draws upon the first qualitative research project to
assess the impact of self-declaration of legal gender status in Denmark.
This was adopted in 2014, at the same time as access to hormones and
surgeries was centralized and restricted. The combined impact of these
reforms disappointed the trans people interviewed, which demonstrates
the importance of identifying how legal and medical norms interrelate.
Jurisdictional analysis helps to illuminate how law was used to develop
and protect professional competencies. Such insights will be valuable
for researchers interested in the potential of self-declaration, and for
scholars of health law and socio-legal studies more generally.
INTRODUCTION
Interviewer: If therewas one thing that you could change in the law, whatwould
it be?
Roi (non-binary transgender,126): I’m not sure it’s in the law, but that would
definitely be the way that our health care system is dealing with trans people.
∗School of Law, University of Leeds, Leeds, LS2 9JT, England
c.p.dietz@leeds.ac.uk
This research was funded by the ESRC (ES/J500215/1). The author thanks all those
interviewed in Denmark. This gratitude extends to Michael Thomson, Julie Wallbank,Nina
Lykke, Jen Hendry, Mitch Travis, Jess Mant, Craig Purshouse, and Marie-Andrée Jacob,
as well as the six anonymous reviewers and the JLS Board, for their feedback on earlier
drafts.
1 Interviewees self-defined their gender status.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
Health law has long been preoccupied with how far legislatures and courts
ought to intervene in the doctor–patient relationship.2In the theoretical
literature, doctor–patient relations have been viewed through a lens whereby
cases are judged by the extent to which they limit or expand doctors’ authority
and enhance or curtail patient autonomy.3Understanding this balance of
power as a zero-sum game – where limiting the authority of the doctor
increases the autonomy of the patient, or vice versa – has enabled neat
summaries of the impact of a common law judgement.4However, it offers
little insight into how health is regulated in practice. While lawyers do
sometimes consider health care as involving an adversarial relationship, this
view will not always accord with that of medical practitioners increasingly
asked to build ‘collaborative’ care practices.5Such practices cannot be
understood through a formulation of autonomy that idealizes the self-
government of the individual and ‘a sense of separation from others in
society’.6Attempts to theorize autonomy around an unencumbered individual,
free from the prospect of governmental intervention, have been criticized
for their libertarian posturing.7By focusing narrowly on individuals, such
formulations underplay the complex relations developed between doctors,
patients, patients’ relatives, and other service providers within the health care
system,8as well as the social structures within which all of these are located.9
Such critiques have instigated a shift from individualized formulations
to more relational understandings of autonomy.10 Focusing on relationships
2 The sub-discipline of health law covers similar ground to health care law or medical
law (though boundaries are contested). Herein, the former is understood as more
inclusive than the latter, as it accepts that a subject’s ‘health’ exceeds matters that
are dealt with in a medical context; J. Montgomery, Health Care Law (2002) 1–3. It
is also less controversial to understand trans embodiment as a health concern than it
would be to describe it as ‘medical’, for reasons discussed below.
3 M. Brazier, ‘Do No Harm: Do Patients Have Responsibilities Too?’ (2006) 65
Cambridge Law J. 397.
4 Hence the flurry of recent scholarship on Montgomery v. Lanarkshire Health Board
[2015] UKSC 11, a negligence case that increases the standard of disclosure of
risk expected from doctors; cf. M. Dunn et al., ‘Between the Reasonable and the
Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to
Medical Treatment’ (2018) 27 Health Care Analysis 110; R. Heywood and J. Miola,
‘The Changing Face of Pre-operative Medical Disclosure: Placing the Patient at the
Heart of the Matter’ (2017) 133 Law Q. Rev. 296.
5 J. Herring et al., ‘Elbow Room for Best Practice? Montgomery,Patients’ Values, and
Balanced Decision-Making in Person-Centred Clinical Care’ (2017) 25 Medical Law
Rev. 582.
6 M. A. Fineman, The Autonomy Myth: A Theory of Dependency (2004) xvi.
7 Id., p. 9.
8 M. Brazier and J. Montgomery, ‘Whence and Whither “Modern Medical Law”?’
(2019) 70 Northern Ireland Legal Q. 5, at 26.
9 S. Sherwin, ‘A Relational Approach to Autonomy in Health Care’ in The Politics of
Women’s Health: Exploring Agency and Autonomy, ed. S. Sherwin (1998) 21.
10 C. Mackenzie and N. Stoljar (eds) Relational Autonomy: Feminist Perspectives on
Autonomy, Agency, and the Social Self (2000); J. Nedelsky, Law’s Relations: A
Relational Theory of Self, Autonomy, and Law (2012).
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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