The new legal landscape in Australia for the treatment for gender dysphoria is of current and growing importance for practitioners and individuals with this condition.

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 threshold/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. Australia was the only country where gender dysphoria treatment for a minor required judicial approval.

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 Alex the court did give approval for the medical treatment but it also set a precedent that would take years to overturn.

There was a shift in judicial attitudes by the time Re Lucy [2013] FamCA 518 was heard in 2013. In that case, the court held that gender dysphoria treatment is therapeutic because it improves a psychiatric disorder, and that 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.

In that case, A 16-year-old under the pseudonym of Kelvin was born female but has identified as male since the age of 9. He was diagnosed with Gender Dysphoria. At the age of 17 years old, his father brought an application to the Family Court to undergo irreversible hormone treatment. Kelvin’s father filed affidavits with the court from an endocrinologist, a psychiatrist and a psychologist supporting the application for the child to progress to the second stage of treatment. The court considered whether in this case, the Gillick competence test was even necessary, as all parties, including the parents of the child and his doctors agreed that Kelvin should start the next stage of his treatment.

The Court held that children who wish to access irreversible hormone treatment no longer need to seek approval from a Family Court judge provided that the child, parents and the treating doctors are all in agreeance as to the treatment; that treatment is determined as therapeutic.

As there is now broader understanding of gender dysphoria and treatment options, the court ruled that the decision to allow treatment is no longer outside the purview of ordinary parenting authority and the court need not intervene in such cases anymore.

Undoubtedly, Re Kelvin is a defining moment in gender and family law.  It brings Australian law in line with the prevailing attitudes of the medical community and has been welcomed by children and transgender advocates as a step that will have a significant and positive impact on the lives of young transgender people.

 

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

This general parental power has limits. In the landmark decision of Marion’s case, the High Court of Australia referred to key principles to explain why some medical procedures fall outside the scope of parental consent, and instead require court approval. The High Court held that the parents of an intellectually disabled girl were unable 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 major, invasive and irreversible. Court approval was seen as a necessary safeguard.

For 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.

The involvement of the Court provides a mechanism or system of compliance – the appropriate medical practitioners must be extensively consulted; their advice must be consistent and there must be alignment between parents and the child that treatment be carried out. This is in addition to the court 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/JurisBridge Legal can get results for you. Please do not hesitate to contact us on 1300 558 999 or 02 8355 3737 or fill out the enquiry form here.