Keywords: Family Law – Medical Procedures – Childhood gender dysphoria – Where the child is 15 years of age – Consideration of whether the child is Gillick competent.
In Re: Quinn [2016] FamCA 617 (29 July 2016) the mother and father (“the Applicants”) were the parents of “Quinn”, who was born in 2001. Quinn, who was born a girl, but identifies as male, was seeking to have a bilateral mastectomy, which is often referred to as “top surgery”. The Applicants had requested that the Family Court determines whether Quinn was competent himself to authorise the surgery. Failing that, they sought alternatively, for the Court to make an order that they, the Applicants could authorise the surgery.
Currently Australia requires young people to seek the permission of the Family Court before undertaking any medical treatment before they transition. This is regardless of whether they have family support and the endorsement of a doctor.
The WPATH Guidelines
The Court considered the World Professional Association for Transgender Health, Standards of Care (“the Guidelines”). These Guidelines set out the generally accepted interventions:
- Stage 1: Fully reversible interventions, which include therapies to suppress oestrogen or testosterone production and thus inhibit the physical changes of puberty.
- Stage 2: Partially reversible interventions which include hormone therapy to either masculinise or feminise the body. Some of these changes may require reconstructive surgery to reverse the effect; and lastly
- Stage 3: Irreversible interventions, these are surgical procedures.
These guidelines recommend a staged process, to enable young people to keep their options open in the first two stages. Additionally, this staged process allows for the adolescent and their parents to assimilate fully the effects of the preceding intervention before moving onto the next stage.
Quinn had not yet started Stage 2 treatment, but his treating doctors recommended that he underwent Stage 3 treatment, “top surgery” immediately.
The Law – Gillick Competency
The Court looked at an earlier case, Re Jamie [2013] FamCAFC 110, which involved an adolescent with childhood gender identity disorder. In Re Jamie, the Court had held that in cases where the intended treatment was irreversible, the issue for the Court to determine was whether the child was “competent within the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, known as “Gillick competent”. If the child was found to be Gillick competent, the authority of the Court was not required to endorse the procedure.
The Court pointed out that gender identity disorder was not a medical procedure or treatment that falls into the jurisdiction of the Family Court of Australia under section 67ZC of the Family Law Act 1975 (Cth). It would only be relevant should there be a dispute about whether treatment – in stages one or two – should be provided, and what form the treatment should take. In terms of stage 2 interventions, the Court’s recommendation to grant the parents the decision-making authority was appropriate unless the child was deemed Gillick competent.
If the child was found to be Gillick competent, the child could consent to the treatment, and the court’s authorisation was not required. The question of determining whether a child was Gillick competent was a matter for the Court. According to the Court: “The ability of a child to make his or her own decision in respect of medical treatment depends on that child having sufficient understanding and intelligence to make the decision.”
Was Quinn Gillick competent?
According to his mother, Quinn had been dressing as a boy since he was four years old. She also stated that Quinn was very aware of the implications of surgery, the pain and discomfort it would entail, and the fact that it would affect his ability to breastfeed should he change his mind. She deposed that he had never faltered in his desire to have the operation and had become increasingly depressed as surgery had been put off pending the outcome of court processes. He had also independently researched hormone therapy and wanted to start testosterone treatment within the next twelve months. She deposed that she was confident that Quinn was “taking an intelligent, mature and measured approach to his future …” Quinn’s father and some of his treating doctors also provided evidence in terms of Quinn’s Gillick competence.
The Court examined whether there was a dispute or controversy. Although Quinn wished to have irreversible surgery, termed a stage 3 intervention, prior to commencing stage 2 treatment, there were guidelines by WPATH that considered when deviation from the stages may be suitable – for instance when the circumstances of the individual child and clinical judgment would require it. In Quinn’s particular situation, he had not yet embarked on stage 2 treatment, which he wished to start once he turned sixteen, but he wished to have “top surgery” as soon as possible.
The surgery would greatly improve Quinn’s quality of life, in terms of reducing his gender dysphoria as well as decreasing the physiological and physical pain he was experiencing due to his large bust. Moreover, the stage 2 hormonal treatment would masculinise Quinn’s appearance, creating a hairy face and chest. The Court stated that “[t]his would be incongruent with a person with an E cup breast and would certainly contribute and potentially provoke abuse and stigmatisation” which could have a detrimental impact on Quinn’s mental state. Although society had begun to accept transgender individuals, the Court nevertheless felt that they may be less inclined to accept an individual with large breasts, coupled with facial and chest hair. This could create more confusion for Quinn, as he would have a mix of both male and female secondary sexual characteristics.
The primary disadvantage for Quinn in proceeding with “top surgery” prior to stage 2 treatment, is that the hormonal treatment is usually undertaken for 12 months, giving the person time to become socially accustomed to his new gender, before undertaking surgical procedures that are on the whole irreversible. However, Quinn’s case was unique in that his large breasts caused him both physical and psychological pain. And once he embarked on hormonal treatment, his breasts would still be noticeable, exacerbating his gender dysphoria. Quinn also had a history of depression and anxiety, and self-harm. The Court found that any risk of proceeding with the surgery was outweighed by the benefits that Quinn would derive from it.
The Court therefore held that it had no concerns about Quinn undergoing the surgery, rather it was concerned about the impact on Quinn were surgery to be delayed.