Gender Dysphoria: Victory in the Family Court for Transgender Children

In the recent case of Re Kelvin [2017] FamCAFC 58 (30 November 2017), the Full Court of the Family Court of Australia heard an application by the applicant’s father concerning the administration of stage 2 medical treatment for Gender Dysphoria for his then 16 years old child, Kelvin. In these proceedings, the Full Court of the Family Court of Australia had to consider a series of questions relating to the Full Court’s decision in Re Jamie (2013) FLC 93-547 (‘Re Jamie’), in particular whether court authorisation is required for stage 2 medical treatment for gender dysphoria, and the determination of Gillick competence.

Background

Kelvin’s parents separated in 2003 and Kelvin remained with his father while his mother moved interstate. Kelvin had not seen his mother in around two years and did not wish to see her but she was supportive of his transition. Kelvin identified with the concept of ‘transgender’ from the age of nine and began displaying behavioural changes in 2013. For instance, Kelvin cut his hair short, began dressing as a male and purchased a chest binder.

Throughout 2015, Kelvin attended doctors for referrals and had been seeing psychologist since April 2015. In addition, Kelvin also had two appointments with an endocrinologist. From October 2015, Kelvin began weekly sessions with an accredited counsellor and mental health social worker, which continued for 12 months before changing to fortnightly sessions from October 2-16 onwards.

Psychologist Dr R reported that Stage 2 treatment would allow Kelvin ‘to continue to develop his self-esteem, the confidence in his body and appearance and to consequently develop the congruence necessary for a healthy future outlook’. Dr R also stated that if the treatment were not carried out, Kelvin may experience ‘triggers for suicide attempts’.

Gender Dysphoria Meaning

Gender Dysphoria is a term that describes the distress experienced by a person due to incongruence between their gender identity and their sex assigned at birth.

Treatment for Gender Dysphoria

Treatment for Gender Dysphoria consists of stages 1, 2, 3. Stage 1 treatment is ‘puberty blocking treatment’ and effects of this treatment are reversible when used for a limited time of approximately three to four years. Stage 2 treatment involves the use of either oestrogen or testosterone and has irreversible effects. Stage 3 treatment involves surgical interventions.

Risks of Not Providing Treatment

Failure to provide gender affirming hormones results in the development of irreversible physical changes of one’s biological sex during puberty or the development of changes that lead to the need for otherwise avoidable surgical intervention such as chest reconstruction in transgender males or facial feminisation surgery in transgendered females.

The prolonged use of puberty blockers (stage 1 treatment) has long term complications for bone density (osteopenia) namely osteoporosis and bone fractures in adulthood. Best practice is to limit the time an adolescent is on puberty blockers and then commence oestrogen or testosterone. Delaying stage 2 treatment for those on puberty blockers also results in psychological and social complications of going through secondary school in a pre-pubertal state which is inconsistent with the child’s peers.

The distress caused by Gender Dysphoria can lead to anxiety, depression, self-harm and attempted suicide.

Individuals with Gender Dysphoria who commence cross sex hormone therapy generally report improvements in psychological wellbeing. An affirmation of their gender identity coupled with improvements in mood anxiety levels typically results in improved social outcomes in both personal and work lives.

Questions of Law

Question 1: Does the Full Court of Australia confirm its decision in Re Jamie to the effect that stage 2 treatment of a child for the condition of Gender Dysphoria in Adolescents and Adults in the diagnostic and statistical manual of mental disorders, requires the court’s authorisation pursuant to s67ZC of the Family Law Act 1975, unless the child was Gillick competent to give informed consent?

In two separate judgments, the Court found that stage 2 treatment no longer requires court authorisation.

According to Thackray, Stickland, and Murphy JJ, the question was not whether Re Jamie was ‘plainly wrong’ but rather the appropriateness of departing from Re Jamie in order for the law to effectively reflect the current state of medical knowledge. Thackray, Stickland and Murphy JJ, recognised the advancement in medical knowledge since the decision in Re Jamie and the increase in appreciation for the risks associated with not treating a person with Gender Dysphoria.

According to Thackray, Stickland and Murphy JJ, ‘the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment’. Further, it was said that ‘the treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court.’

Ainslie-Wallance and Ryan JJ found ‘by eliding the outcome of therapeutic treatment with the risks and consequences identified in Marion’s case which removed non-therapeutic sterilisation from the realm of parental consent, we are of the view that the Full Court erred in its application of Marion’s case in Re Jamie and thus the decision should not be followed.

Question 2: Where: Stage 2 treatment of a child for gender dysphoria is proposed; the child consents to the treatment; the treating medical practitioners agree that the child is Gillick competent to give that consent; and the parents of the child do not object to the treatment. Is it mandatory to apply to the Family Court for a determination whether the child is Gillick competent?

In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.

The Court stated that it seemed harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement. The Court further stated her Honour erred because nothing was said in Marion’s case about who should determine Gillick competence, and certainty it was not suggested that the court should be tasked with that responsibility.

The Court found that the nature of stage 2 treatment no longer justifies court authorisation. There is also no longer a basis for the Court to determine Gillick competence.

Orders

1. That Stage 2 treatment of a child for the condition of gender dysphoria in adolescents and adults did not require the Court’s authorisation pursuant to s67ZC of the Family Law Act 1975 (Cth).

2. Where Stage 2 treatment of a child for gender dysphoria is proposed; the child consents to the treatment; the treating medical practitioners agree that the child is Gillick competent to give that consent; and, the parents of the child do not object to that treatment, it is not mandatory to apply to the Family Court for determination whether the child is Gillick competent.

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