In a short period of time earlier this year (2013) the Family Court of Australia had a number of "special medical procedure" applications to consider. They concerned a condition known as Gender Dysphoria - where a child is born as one sex but assimilates, identities and associates as being of the opposite sex.

Background

From reading through Re Lucy and Re Jamie, it appears that there are two stages involved in the transformation of a person from one sex to the other.  Stage 1 involves the administration of hormone treatments, a reversible commencement in transformation whereby puberty is effectively put on hold. Stage 2 is irreversible. Body shape changes occur and surgery follows.

In Re Lucy (Gender Dysphoria), the child was physiologically a girl, however, had identified as a boy since the age of 4.  At 12 July 2013 when judgment was handed down, Judge Murphy considered the extensive medical, and associated psychological/ psychiatric counseling, history of this child.  Lucy was 13 years old and in the care of the Department - with no surviving parents.

Lucy's progression through puberty had commenced at the time of the hearing. Treatment with a substance known as Lucrin halts development and when treatment ceases, puberty can continue from where it was halted. This treatment enables the physical changes to be halted so that when the child reaches an age of greater competency, they can then make the election to proceed to surgery.

Ordinarily, parents have the authority to make decisions concerning their child's medical treatment. However, they are not able to consent to treatment which involves "special cases" or "special medical procedures". The court has jurisdiction in these matters because it has authority to make decisions concerning parental responsibility, which is a qualifying aspect for Part VII of the Family Law Act

Outline of Cases 

This care was a little more involved as Lucy was in the case of the Queensland Department of Communities, Child Safety and Disability Services, under a guardianship order.

An examination of the psychological state of the child is fundamental.  Ultimately, decisions are being made that are irreversible, likewise the natural progression of puberty would make for irreversible changes. The child's mental health rests on these decision making processes. Murphy J found that the administration of drugs to suspend puberty was  "...appropriate for and proportionate to the purpose" of treating the child's Gender Dysphoria and that it is intended to be administered "for the chief purpose of preventing, removing or ameliorating ... a psychiatric disorder." 

Murphy J went on to comment that this was not a situation where the treatment itself  fell into the category of a case requiring the court's authorisation, however, there are times when an order needs to be made.

In Lucy's situation, the Department was seeking authorization for Stage 1 treatment - a reversible stage.  This case had involved pharmaceutical treatment, psychological and psychiatric evaluation and support, "a prolonged period of conservative treatment".

Re Jamie was handed down on 31 July 2013 by the Full Court of the Family Court.  Jamie was a 12 year old boy who wanted to be a girl and had been leading life as a girl for several years. The case had already spent a lot of time before the Court and was an appeal from an earlier decision.  Jamie is in her parents care.

Again, the child met all the requirements of the diagnostic tool, DSM-IV, for a psychiatric condition. Again, the child was competent to make decisions, that is, had no mental impairment.

For Jamie, the parents wanted authority to make all decisions. The Australian Human Rights Commission argued that the parents had authority to make decisions about the reversible treatment, but not the second stage and that this was a "special medical procedure that requires authorisation". A public authority was also involved. There was argument as to whether reversible treatment is a separate step not requiring authorisation or whether it is part of the entire treatment process, which requires authorisation.

Conclusion

Medical treatment is evolving. Parental authorisation for some procedures and treatments is limited. This will remain a challenge for parents and the Courts for some time. At this stage, though, two recent cases suggest that Stage 1 treatment does not require Court authorisation as that step is reversible with few, if any, side effects.  It "is not a special medical procedure as it does not "displace" the parental authority…Properly advised and informed, parents are in a position to make such decisions."

For Stage 2, the Court is indicating that where there is a question of competency, then the Court is to be involved at this time and, in any event, competency is a matter properly determined by the Court. Where there is disagreement between parents, medical practitioners and the child, then Court sanction is required at any stage.

On a separate note, for people who are transgender, there should be no reason for discrimination on the basis or sex or any other aspect.  People in this situation are an identifiable group in our society and have the right to live as a member of the sex they identify with. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013  (Cth) operates from 28 June 2013. If you feel you have been discriminated against on the basis of your sex, seek legal advice.