Gender-based provisions in mental health legislation: a review of English language jurisdictions

Abstract

Objectives: Legislation is a powerful tool for facilitating mental healthcare. Gender is an important social determinant of physical and mental health. Many jurisdictions are in the process of revising their mental health law, to align with human rights commitments. Consideration of gender in these revisions could enhance the mental healthcare received by women, transgender and non-binary individuals. Aim: This paper examines gender-based provisions in mental health law published in English. Methods: Countries that use English as an official language were identified. Jurisdictions in these countries with stand-alone mental health laws were included. Legislation was reviewed for gender-specific provisions. Results: Seventy-five countries were evaluated; 71 jurisdictions were included. Thirty-eight jurisdictions had 88 gender-specific provisions. These addressed ten key areas, including: general gender-based protections, female representation on boards and review panels, protections during searching and restraint, gender separated facilities, protections in relation to parenting, fertility, sterilisation and termination. Fiji, Ghana, India, and the Australian jurisdictions had the highest number of gender-specific laws. However, gender-specific provisions are highly heterogeneous and are drafted from a cisnormative perspective and fail to adequately address the specific needs of individuals outside of that framework. Conclusion: Gender-specific provisions can enhance the protections afforded by mental health law. However, as legislation can be a blunt instrument, careful consideration must be given to potential unintended consequences. During revisions of mental health law consideration should be given to gender-specific provisions and legislation must be inclusive of individuals identifying as transgender, non-binary and other genders.