Pro bono I Landmark judgment of the Full Court of the Family Court of Australia
22 December 2017
Gadens as part of its commitment to provide pro bono legal services, partnered with JusticeConnect to assist transgender children and their parents to navigate the Family Court process to obtain court authorisation for hormone treatment as part of the transition. Gadens has also been involved in research studies, via the University of Melbourne, looking at the effects of these court proceedings on transgender children and their families.
Following the recent judgment of the Full Court of the Family Court of Australia in Re: Kelvin, where the parents, child and treating medical practitioners all agree that Stage 2 hormone treatment for Gender Dysohoria is necessary, transgender children are no longer required to obtain court approval prior to commencing treatment.
This is a landmark judgment. Until Re: Kelvin, Australia was the only common law country which required transgender children diagnosed with Gender Dysphoria to first obtain court approval before commencing Stage 2 treatment, even where the child, the child’s parents and medical experts all agreed that hormone treatment was appropriate and necessary. Re: Kelvin has made a profound difference to these clients and other young trans people by removing the stress and delay associated with preparing for a court case and attending a hearing at an already extremely difficult time for the young person and their family.
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. Gender Dysphoria is a recognised condition defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and a diagnosis can be made when specific criteria are met, the distress has been present for at least six months and when the condition is associated with clinically significant distress and impairment in social, occupational or other important areas of functioning.
Treatment for Gender Dysphoria consists of Stage 1, 2 and 3 treatment and is subject to international protocols and requires a comprehensive multidisciplinary assessment. Stage 1 treatment commences after diagnosis and prevents the onset of puberty such as voice breakage, facial hair growth or development of breasts. The physical effects are largely reversible. Stage 2 treatment is otherwise known as hormone replacement therapy which allows for the development of sexual characteristics of the child’s psychological gender. Stage 2 treatment involves irreversible changes such as the development of breasts and voice breakage. Stage 3 treatment involves surgical intervention and still requires court authorisation under 18 years of age.
In 2004, Re: Alex determined that children with Gender Dysphoria were required to obtain court approval prior to commencing both Stage 1 and 2 treatment. In 2013, following an appeal to the Full Court of the Family Court, Re: Jamie determined that court approval was no longer required for Stage 1 treatment as the effects are largely reversible. However, the Full Court held that due to the irreversible effects of Stage 2 treatment and the grave consequences of making the wrong decision, court oversight was still required prior to commencing Stage 2 treatment.
The court was required to determine if the child was ‘Gillick competent’, that is of sufficient understanding and intelligence to consent to the treatment him/herself. Where the child was not determined to be Gillick competent, then the court had to determine if it was in the child’s best interests to commence treatment.
Between the judgement of Re: Alex in 2004 and Re: Jamie in 2013, there are no reported cases where a child was denied authorisation to commence Stage 2 treatment. Further, between Re: Jamie on 3 July 2013 and 16 August 2017, of the 63 cases the Family Court dealt with involving applications to commence Stage 2 or 3 treatment, treatment was authorised in all but one case. In the case where treatment was not permitted, there was insufficient evidence before the court and the child was one month from turning 18.
Re: Kelvin went to the Full Court of the Family Court as a case stated. The parties involves the Commonwealth Attorney-General, the Human Rights Commission, A Gender Agenda, the Secretary for the Department of Family and Community Service (NSW) and the Royal Children’s Hospital, Melbourne.
Kelvin was 17 years at the time of proceedings and was born female but identified as male since the age of 9. Kelvin transitioned sexually at the age of 14 and had been living as a male since that time. Kelvin had not undergone Stage 1 treatment and this resulted in significant distress as he had gone through female puberty. Kelvin had been diagnosed with Gender Dysphoria and was supported in the application by his parents and wished to commence stage 2 treatment.
It was held that:
“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.”
“The treatment can no longer be considered a medical procedure for which consent lies outside the bonds of parental responsibility and requires the impramatur of the court.”
Ainslie-Wallace and Ryan JJ in a separate judgment held that the Full Court erred in its application of Marion’s case [in Re: Jamie] and should not be followed as the Full Court was “plainly wrong”.
Marion’s case involved the authorisation of sterilisation for an intellectually disabled child. In this case, the Court distinguished between therapeutic and non-therapeutic treatment and held that where medical treatment on a child was non-therapeutic and the consequences of making the wrong decision were severe, court authorisation was required.
In the case of Re: Jamie, Stage 2 treatment was determined to be therapeutic, but as there were some irreversible effects the Full Court still required court oversight.
Ainslie-Wallace and Ryan JJ considered that once the Court in Re: Jamie determined that Stage 2 treatment was therapeutic in nature, it should have determined that court oversight was not necessary absent any controversy.
Re: Kelvin is a welcome relief as this judgment will ensure trans people can seek treatment without additional delay and distress or the cost of legal proceedings. Gadens wishes to thank the pro bono barristers and medical professionals who assisted in these cases.
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