Summary

In a decision delivered on 16 March 2018 (Re: Matthew [2018] FamCA 161), the Family Court of Australia (the Court) dismissed an application made by the parents of a 16-year-old child, who were seeking orders that the Court declare the child to be Gillick competent and capable of consenting to Stage 3 treatment for Gender Dysphoria.

Instead of making such order, the Court found that the proposed treatment was for the purpose of treating a 'bodily malfunction', albeit psychiatric, and was therefore 'therapeutic' in nature. The Court held that, in circumstances such as in this case, young persons no longer need to approach the Court for Stage 3 treatment where:

  1. the young person has been diagnosed as suffering from Gender Dysphoria;
  2. the young person's treating practitioners agree that the child is Gillick competent; and
  3. there is no controversy regarding the application.

What is Stage 3 treatment for Gender Dysphoria?

Stage 3 treatment is treatment which is surgical in nature (as opposed to Stage 2 treatment which does not involve surgical intervention). Stage 3 treatment includes, but is not limited to chest reconstructive surgery, phalloplasty, hysterectomy, bilateral salpingectomy, or creation of the neovagina and vaginoplasty. The Stage 3 treatment which was proposed in this case was a double mastectomy, also known as 'top surgery'.

The Court's description of Stage 3 treatment in Re: Matthew was non-exhaustive, meaning that this decision has the potential to extend to a broader range of treatments.

The decision in Re: Matthew and the Court's reasoning

In Re: Matthew, the Court identified that the young person had been medically diagnosed as having Gender Dysphoria. It then continued to consider whether the proposed treatment was therapeutic in nature, having regard to the High Court's judgment in Secretary, Department of Health and Community Services v JWB and SMB [2004] HCA 20, known as "Marion's Case", and the Full Court's recent decision in Re Kelvin [2017] FLC 93-809.

In finding that the proposed treatment was therapeutic in nature, the Court relied on the evidence filed by the young person's treating practitioners. This evidence was to the effect that the proposed treatment would significantly reduce the psychological pain and distress that the young person experiences as a result of the incongruence between the physical appearance of his breasts and his presentation as a male. Accordingly, the Court held that Stage 3 treatment was therapeutic because it would be administered for the purpose of treating a psychiatric condition.

Following the decision in Re Kelvin, where it was held that Court authorisation was no longer required for Stage 2 treatment, the Court determined that because the proposed Stage 3 treatment was therapeutic, a court order was therefore unnecessary.

Implications and limitations of the Re: Matthew decision

This decision means that young persons diagnosed with gender dysphoria are no longer required to seek Court authorisation for Stage 3 treatment, where:

  1. the treating practitioners agree that the child is competent to consent to the treatment; and
  2. there is no controversy regarding the treatment.

However, as was the case in Re Kelvin, where there is a dispute as to whether the treatment should be administered, the Family Court retains the jurisdiction and the power to address that issue. As a result, if there is a lack of agreement between the child, their parents, and medical practitioners, the Family Court will likely have to decide whether the child should have Stage 3 treatment.

Unlike the decision in Re Kelvin, which was a decision of the Full Court of the Family Court, this decision is a first instance, single judge decision, and so it provides guidance but is not binding on other judges of the Family Court.

Further, the decision is not likely to be appealed to the Full Court (which would result in a binding decision), given the only parties to the proceedings were the applicants and the Independent Children's Lawyer. Interestingly, the Department of Family and Community Services chose not to intervene in the matter, despite being provided with notice that the Court indicated that it intended to determine whether the treatment is therapeutic. What this means is that until it is challenged or overturned by a subsequent judgment, the decision in Re: Matthew remains current.

The future effects of this decision on other families

The practical effect of this judgment on young persons and their families is yet to be seen. Despite the Full Court's judgment in Re Kelvin, in our experience, child endocrinologists have been cautious in administering Stage 2 treatment without a court order and it is likely that medical practitioners will approach the administration of Stage 3 treatment with similar caution. Fundamentally, it becomes a two-fold matter for medical practitioners to determine whether the young person is capable of consenting, and also whether the treatment is therapeutic for the purposes of treating a psychiatric condition.