In our previous article, 'Transitioning Power: Children, Gender Dysphoria and Consent', we discussed the possibility that the anticipated decision of Re Kelvin by the Australian Full Family Court could see a shift in how Australian courts approach gender dysphoria.
In line with anticipation, Re Kelvin is a significant decision which has changed the current approach to the Court’s treatment of minors who experience gender dysphoria and wish to receive hormonal treatment.
Before we explore the decision of Re Kelvin, we will review the fundamental principles regarding consent for treatment involving children in specific situations.
When does a court intervene?
A child (under the age of 18 in Queensland) is deemed to have capacity to consent to medical treatment if they ‘have a sufficient understand[ing] and intelligence to enable them to understand fully what is proposed’. This has been recognised as ‘Gillick competence’. If a child is deemed to be Gillick competent, he or she can consent to medical treatment.
However, in the case of ‘special treatment’, such as treatment to transition gender, the question of whether a child is Gillick competent and can consent to irreversible treatment is a matter to be determined by the court.
There has been considerable debate as to whether treatment for gender dysphoria requires court intervention.
There are generally two recognised stages of hormonal treatment for children who are in the process of transitioning prior to receiving surgery:
Stage 1 ‘puberty blocking treatment’
This treatment involves the suppression of puberty, involving blocking normal hormones. This treatment is reversible provided it is used for a limited time of 3 to 4 years.
This mostly commences between the ages of 9-12. This involves two independent child and adolescent psychiatrists taking a psychological development assessment, and an assessment of the child’s gender identification and capacity to understand the proposed treatment. If a child no longer wishes to continue this treatment, they can cease taking the blockers and puberty will commence.
Stage 2 ‘gender affirming hormone treatment’
This treatment involves the administration of either estrogen or testosterone (depending upon the gender which the person is transitioning to). This treatment includes parts which are irreversible.
Stage 2 treatment may be commenced when a person is 16. Approval for stage 2 treatment requires a paediatrician, two mental health professionals (including a psychiatrist) and a fertility expert. These professionals must agree that the treatment is in the best interests of the child.
Law before Re Kelvin
Prior to this case, the current state of the law in Australia regarding gender dysphoria was outlined in Re Jamie. Stage 1 treatment was not a medical procedure which required court authorisation because was therapeutic in nature and fully reversible and it fell within the 'ambit of parental responsibility'. However, Stage 2 treatment required court confirmation or a finding of Gillick competency.
The case of Re Kelvin concerned a 16 year old who was born female. However, from the age of 14, Kelvin identified as and transitioned socially as a male (Kelvin was recognised by his preferred name at school). Kelvin received treatment from a psychologist, an endocrinologist, an accredited counsellor, mental health social worker and a psychiatrist. Kelvin was diagnosed as having Gender Dysphoria as defined in the Diagnostic and Statistical manual of Mental Disorders (DSM-5).
Kelvin had not undergone stage 1 treatment and as a consequence experienced female puberty which caused him great distress. It was recognised that stage 2 treatment was required for Kelvin's health and wellbeing.
Kelvin's father filed an initiating application on Kelvin's behalf, seeking the Family Court's declaration that Kelvin was competent to consent to the administration of stage 2 treatment. In support of his application, he filed expert reports of a psychologist, psychiatrist and endocrinologist who all supported the decision for Kelvin to receive stage 2 treatment.
At first instance, the Family Court found that Kelvin was Gillick competent to consent to Stage 2 treatment for Gender Dysphoria. The Family Court stated that they were bound by the decision of Re Jamie. His honour made an order under section 94A(1) of the Family Law Act to seek the opinion of the Full Family Court on the question of:
‘Does the Full Court 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 as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition) DSM-5 (the treatment), requires the court’s authorisation pursuant to s672CZ of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent to the treatment?’
Full Family Court Decision
The matter went to the Full Family Court for the determination of the above issue. Due to the nature of the case, there were several intervenors (interested parties) who made submissions to the court.
In coming to a determination, the court made reference to various factors. The court noted that judicial understanding of Gender Dysphoria and its treatment had fallen behind the advances of medical sciences. The court acknowledged that since the Re Jamie decision, there had been development in the assessment of Gender Dysphoria: from a 'gender identity disorder' in the DSM-IV (published in 1994 and updated in 2000) criteria to a condition in DSM-V (published in 2013). Additionally, the court observed there have been advances made in the standards of care for treatment of Gender Dysphoria.
It was submitted by an intervenor that there is now increased knowledge of the risks associated with not treating a person who had Gender Dysphoria. This included irreversible physical changes of one’s biological sex or developmental changes that required (otherwise avoidable) surgical intervention. Conversely, individuals who commenced cross sex hormone therapy reported an improvement in psychological wellbeing.
The Court held that stage 2 treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority. The court said in circumstances where:
- The child consents to the treatment.
- The treating physicians agree that the child is Gillick competent to give that consent.
- The parents of the child do not object to that treatment.
Then it is not mandatory to apply to the Family Court for a determination.
The court emphasised that the risks involved and the consequences arising out of the stage 2 treatment (noting it is in some respects irreversible) does not outweigh the therapeutic benefits of the treatment.
The Court did not state that Re Jamie was ''plainly wrong". The Court stated that it is now appropriate to depart from Re Jamie, emphasising that the law reflects the current state of medical knowledge.
Caveats imposed by the court
The Court also placed caveats on the decision.
The Court acknowledged that in circumstances when a child is under the care of a State Government Department, the child will require court intervention to receive treatment.
Further, where there is a dispute about whether the treatment should be provided, such as treating physicians and parents disagreeing regarding the treatment, a court will be required to decide whether the child ought to receive treatment.
The decision of Re Kelvin shows a marked development in Australian jurisprudence regarding the courts’ approach to treatment of adolescents who are in the process of transitioning. The reasoning underpinning this jurisprudential shift is due to courts falling in line with medical knowledge regarding the treatment of gender dysphoria.
However, this decision is not a panacea for the complexities of this area of law nor does it necessitate the extrication of courts from the process. In circumstances of genuine dispute as to whether treatment should be decided, the court will still needs to be involved.