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Gender dysphoria and the Family Court – an issue of identity

More Australian children identify as having gender dysmorphia now than ever before, but treatment for the condition is not just a decision for parents, but also for the Family Court. TGB associate Rebecca Zanol outlines the complex process.


The number of Australian children identifying as having gender dysphoria is on the rise. In August 2016, leading child psychologist Dr Michael Carr-Gregg said 250 children as young as three were being assisted by the gender dysphoria unit at Melbourne’s Royal Children’s Hospital. A decade ago, the unit was treating just one child.

While it is common for parents and legal guardians to assume they can authorise all medical treatment for their child, this is not the case. Gender dysphoria treatment is considered a “special medical procedure” by law, which falls outside of a parent or legal guardian’s ability to provide consent and which cannot be performed without the authorisation of the Family Court of Australia.

Special Medical Procedures

Procedures which require the authorisation of the Family Court are defined as “special medical procedures” and are captured by the welfare jurisdiction of the Family Court. The criterion for a “special medical procedure” is defined as medical intervention that is:

 

  1. Invasive, permanent and irreversible;
  2. Not for the purpose of curing a malfunction or disease; and
  3. Carries a significant risk of making a wrong decision and that decision has potentially severe consequences.

 

When considering whether to authorise a “special medical procedure” the Family Court must be satisfied that, among other things, the medical treatment is within the child’s best interests.

 

Gender Dysphoria

Australia is the only country in which gender dysphoria treatment for a minor needs judicial approval. A minor is generally an individual under 18 years of age. However, some states (including South Australia) legislatively provide that children aged 16 and over are considered adult for the purpose of legally consenting to medical treatment.

 

Whether gender dysphoria treatment of a minor should be considered a special medical procedure requiring Court authorisation has been the subject of considerable judicial scrutiny in recent years.

 

Treatment Overview

By way of general background, gender dysphoria treatment is undertaken in two stages:

Stage 1: Administration of puberty-suppressant hormones. This stage of treatment is reversible; and

Stage 2: Administration of testosterone for a child identifying as male or oestrogen for a child identifying as female. This stage is irreversible.

Relevant Case Law – Re Jamie

The 2013 Full Court of the Family Court decision in Re Jamie considered whether both stages of gender dysphoria treatment should be considered special medical procedures requiring authorisation from the Family Court. At the time the case was heard, both stage 1 and stage 2 required Court authorisation.

 

The child subject of the proceedings in Re Jamie was born male but identified as female from about two-and-a-half years of age. She was diagnosed with gender dysphoria at age seven and was 10-years-old when the matter was before the Court. The need for stage 1 treatment, being hormone blockers, was becoming urgent, as she was approaching puberty and irreversible natural bodily changes were commencing.

The Full Court of the Family Court held that stage 1 treatment is not a special medical procedure that requires Court authorisation, as was previously the position. The decision dramatically altered the legal position of the time, as it enabled parents and legal guardians to consent to stage 1 treatment without incurring the delay, cost and inconvenience of seeking Court authority.

 

However, the Court held an alternative view regarding stage 2 treatment and determined that Court authorisation was still required before treatment could be administered to a minor, mainly due to the irreversible nature of that intervention.

 

‘Gillick Competence’ Exception

The Court also held that the requirement to obtain judicial consent for stage 2 treatment can only be avoided if the Court is satisfied a minor has a competent understanding of the consequences of the procedure. This process is referred to as being “Gillick competent”, and an application and appearance before the Court is still necessary. If a minor is not found to be Gillick competent (namely, of an appropriate age and maturity to make the decision on their own behalf), then judicial consent will be required for stage 2 treatment.

 

These matters are highly emotional and complex, as the Court must balance the benefit gained from authorising treatment against the risk and potential consequences of a wrong decision.  Parents and guardians of children with gender dysphoria are encouraged to seek legal advice at the earliest opportunity. Tindall Gask Bentley’s family law team can guide you and your family through this process with expertise and sensitivity.

If you need help with a Family Law matter contact your nearest TGB office today or call us on (08) 8212 1077.

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