Summary

On Thursday 30 November 2017, the Full Family Court handed down its landmark decision in Re Kelvin. In its eagerly anticipated judgment, the Full Court confirmed that Court Authorisation is no longer required for Stage 2 treatment for gender dysphoria. This means that in future families can access the treatment to help their children reach their potential without the need to apply to the Family Court first.

Gender dysphoria and Court involvement with gender transformation

A young person experiencing gender dysphoria (gender identity disorder) often experience intense discomfort and distress with their biological sex, and consequently, the gender they physically exhibit.

Children under the age of 18 who have been diagnosed with gender dysphoria may wish to access the two-stage medical treatment necessary to begin a gender transformation. Stage one treatment for gender dysphoria is therapeutic in nature and is reversible. Court authorisation has generally not been required. However, because of the irreversible nature of stage two treatment (cross-sex hormone treatment), the Family Court of Australia, in the case of Re Jamie, required that court authorisation be obtained before children could commence stage two treatment.

This decision meant that where stage two treatment of a child with gender dysphoria was sought, the child had to apply to the Family Court for authority to commence this treatment. Court authorisation was required even if the child consented to the treatment, the child's medical practitioners recommended the treatment and believed the child to understand the nature of the treatment, and the parents of the child agreed to the treatment.

Parents are generally only required to consent to medical treatment on behalf of their children when the children themselves do not as yet have the capacity to make the decision for themselves. A child will be competent (usually termed Gillick competent) if they have the appropriate maturity and understanding to make decisions for themselves, which are for all intents and purposes, irreversible. Under Re Jamie whether a child had attained such capacity was still a decision for the Family Court. Hence, in seeking Stage 2 treatment, families were still required to make application to the Family Court even if their children were able to make these decisions for themselves, because it is only the Court that can assess competency, not medical practitioners.

Since Re Jamie

Since the decision of Re Jamie and the 16 August 2017 the Family Court has dealt with 63 cases involving stage two treatment for gender dysphoria. In 62 cases the treatment was allowed. For these cases the average wait between the time treatment was recommended and when the case was heard was eight months. During this time, many of the children experienced a decrease in their emotional well-being, including anxiety, depression and self-harm. Further there was a significant financial cost for families in going to the Family Court to obtain authorisation.

Lander & Rogers have acted on behalf of many families going through this process as part of our pro bono programme.

The Family Court has now considered whether these mandatory court processes are still necessary, and if so, in what circumstances.

Re Kelvin landmark decision

On the 30 November 2017 the Family Court handed down the landmark decision of Re Kelvin. The issue before the court was whether it should confirm its earlier decision of Re Jamie, that stage two treatment of a child with gender dysphoria requires court authorisation.

The Family Court found authorisation is no longer required in circumstances where the child is Gillick competent to make the decision to commence treatment as determined by their medical practitioners. Court authorisation will also no longer be required in circumstances where the child is not Gillick competent but their parents' consent and medical practitioners agree.

The decision of Re Kelvin reflects the evolution of medical knowledge since the decision of Re Jamie and the increased knowledge of the risks associated with delaying treatment of a young person who has gender dysphoria. It was considered that the therapeutic benefits of stage two treatment outweigh the risks and consequences involved in the irreversible nature of the treatment. The decision places emphasis on the need for proper medical assessment in determining treatment to be appropriate for the child.

Limitations with the Re Kelvin decision

In making the decision, the Full Court of the Family Court made clear that parents, rather than the Family Court, may consent to stage two treatment if their child is not Gillick competent to make that decision. However, it is unclear if the Family Court will take the same approach if the decision rests with a guardian or relative. Further clarification will be needed on this.

A further limitation of the decision of Re Kelvin is that it does not extend to children who may want stage two treatment but are under the care of a State Government Department. Such children will still require court authorisation to commence treatment.

If there is a genuine dispute as to whether treatment should be administered, the Family Court has the jurisdiction and the power to address that issue. For example, if one parent consents to their child having the treatment, but the other does not, or there is a lack of consensus between the child, parents and medical practitioners, the Family Court will likely have to decide whether the child should have stage two treatment.

Court authorisation will still be required for children wishing to commence Stage 3 treatment (surgical intervention).

What the new judgment means for transgender minors and their families

The judgment in Re Kelvin has been welcomed by the transgender community in removing a significant barrier to accessing appropriate medical treatment by young transgender adolescents.

Lander & Rogers is proud to have partnered with the Human Rights Law Centre in acting on behalf of one of the intervenors in this case. Special Counsel, Rachell Davey has commented that "the decision in Re Kelvin will pave the way for young transgender people being able to access medical treatment in a timely manner without having to firstly undergo a lengthy and intrusive Court process. It reinforces current medical best practice in treating gender dysphoria and will best support and promote the welfare of transgender children."