The treatment of gender dysphoria is of growing importance.

The court has the jurisdiction and power to determine a controversy between the parties about consent for gender dysphoria treatment by making an order as to “Gillick competence” under welfare jurisdiction, a parenting order, or an order using its general powers.

 

Gillick Competent?

‘Gillick competence’ is a test designed to reveal whether a child is legally capable of consenting to medical treatment, without parental knowledge or consent.

The test is derived from the English case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7[1986] AC 112, where it was held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to enable him or her to understand the nature and implications of that treatment. Thus a child is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what treatment is proposed.

 

Gender dysphoria

There are three stages of treatment for gender dysphoria:

Stage One (1) treatment is where a child is prescribed “puberty blockers” between the age of nine and twelve, which they take for up to four years, preventing them from going through puberty as their biological sex.

Stage Two (2) treatment gender affirming hormone treatment – that is, the use of either oestrogen to the feminise the body or the use of testosterone to masculinise the body) without any surgical intervention. The child is provided with hormone therapy to force his or her body to develop in accordance with the gender they identify with.

Stage Three (3) treatment for gender dysphoria includes reconstructive surgeries such as chest reconstructive surgery; phalloplasty, hysterectomy, bilateral salpingectomy, creation of the neovagina, and vaginaplasty. (Irreversible medical treatment).

 

Legal stand prior to 2017

Before 2017, transgender adolescents had to seek judicial permission to start Stage Two treatment for dysphoria. 

In 2004, the Family Court established in Re Alex [2004] FamCA 297 that treatment for gender dysphoria is non-therapeutic and outside the boundaries of parental consent. The court found that Stage One and Two treatments were “special medical procedures” that required court approval, regardless of the wishes of the child or their parents. 

In Re Lucy [2013] FamCA 518  the court held that gender dysphoria treatment is therapeutic because it improves a psychiatric disorder and therefore court approval is not necessary for Stage One treatment.

This was reaffirmed by Re Sam and Terry [2013] FamCA563 and Re Jamie [2013] FamCACF 110 where the attitude of the court was that there was little risk to the child as Stage One treatment is reversible and carries a minimal risk of misdiagnosis. The court in Re Jamie reaffirmed that Stage Two treatment was only available to transgender adolescents that the court felt reached a ‘Gillick’ level of competency.

 

Family Law Post 2017

 

Re Kelvin

In 2017, the Family Court in the landmark case of re Kelvin [2017] Fam CAFC 258 ruled that teenagers with gender dysphoria no longer have to ask the court for permission to undergo irreversible hormone treatment if they have permission from their doctors and their parents.

Re Kelvin has been welcomed by children and transgender advocates as a step that will have a significant and positive impact on transgender people. In this case, a father applied to the Family Court to allow his child to progress his treatment for gender dysphoria to Stage Two. Kelvin had been born female but had been diagnosed with gender dysphoria after identifying as a male from when he was nine years old. Kelvin’s father relied on evidence from an endocrinologist, a psychiatrist and a psychologist supporting the position for the child to progress to the second stage of treatment. The court considered whether in this case, the Gilick competence test was necessary, as all the relevant parties were in agreement that Kelvin should start the next stage of his treatment.

The court found that it was not necessary to make an order in this case; they ruled that the court need not intervene in such cases anymore; rather where Stage 2 treatment is proposed and the child and parents consent with the treating medical practitioners in agreement then the child is Gillick competent to give that consent and it is not necessary to apply to the Family Court for a determination whether the child is Gillick competent.

 

Current Legal position in Australia

 

Matthew [2018] FamCA 161 (“Matthew”)

The current legal position is pronounced in the matter of Matthew that transgender young people diagnosed with gender dysphoria no  longer need to apply to seek approval from a Family Court judge for Stage 3 treatment where:

  1. the transgender teenager has been diagnosed with gender dysphoria;
  2. the transgender teenager’s treating practitioners agree that the child is Gillick competent; and
  3. there is no controversy regarding the application (e.g. disagreement between the parents or doctors about the treatment).

 

Orders relating to welfare of children

The court has jurisdiction to make orders relating to the welfare of children. In deciding whether to make an order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

A child’s parents generally have power to consent to their child’s medical treatment. Under s 61C of the Family Law Act 1975 (Cth) (‘the Act’), each parent of a child aged under 18 years has parental responsibility for the child.

Parental responsibility is defined in s 61B to include “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”, and this includes the right to consent to the child’s medical treatment in most cases. This right must be exercised in accordance with a child’s best interests, and s 60CC outlines the factors that a court will consider when determining these.

 

Marion’s case [1994] FLC 92-448

Parental power has limits. In the landmark decision of Marion’s case [1994] FLC 92-448, the High Court of Australia explained why some medical procedures fall outside the scope of parental consent, and instead require court approval. The Court held that the parents of an intellectually disabled girl were not able to consent to a non-therapeutic sterilisation procedure. The non-therapeutic nature of the treatment was emphasised as a reason for requiring court authorisation, together with the procedure being considered to be invasive and irreversible . Court approval was seen as a safeguard.

In special medical procedures, authorisation can be granted by the Supreme Court in its “parens patriae jurisdiction” (power to make orders to protect the welfare of children), or by the Family Court under the Family Law Act.

Section 67ZC of the Act provides the Family Court with the authority to make orders relating to the welfare of children, which includes special medical procedures. The Family Law Rules 2004 complement s 67ZC. In particular, Rule 4.09 sets out the process for providing evidence to satisfy the court that the medical procedure is in the child’s best interests.

In conclusion for gender dysphoria treatment, the appropriate medical practitioners must be consulted and there must be an alignment between parents and the child. In addition to this, the court will taking overarching consideration of the best interests and sensitivities of the child.

 

Contact us

If you would like to seek expert advice on your rights and your children’s rights or any other Family Law matters, the Family Law team at Genesis Edge can get results for you. Please do not hesitate to contact us on 1300 558 999 or fill out the enquiry form here.