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Gender Dysphoria and the Family Court


Family Court and evolution of societal and medical changes

The Family Court has had to evolve over time with the changes in societal attitudes such as legislation for de facto relationships and with advances in medical science and treatments. This is where decisions about Gender Dysphoria reflect very much how the Family Court grapples with these societal changes but always with considerations of the best interests of the child in mind

What is Gender Dysphoria?

It is defined as a condition where one’s emotional and/or psychological identity as “male” or “female” is felt to be the opposite of one’s biological sex. It was renamed GENDER DYSPHORIA rather than “gender identity disorder” as this was seen as stigmatising those with the condition. Chief Justice Bryant (as she was then) stated that the Family Court labeling was unavoidable in court proceedings but these people considered themselves just an example of diversity as opposed to suffering a psychiatric condition. She was also concerned that parents were subjected to the cost and trauma of court.

Suicide and negative distress to treatment

THE DSM-5, the American Psychiatric Association’s publication affirms that it is not a mental disorder. However it has a serious impact leading to suicidal ideation and distress when the child or adolescent wants to undergo gender transitioning. A child must exhibit such behaviour for 6 months.

Treatment ranges from therapeutic to surgical intervention.

The Courts have become involved when parents apply for medical procedures. Non-therapeutic” treatment was considered “special medical procedures” and therefore outside parental consent to recognition of the rights of the child involved.

With the welfare of the child and trying to promote the best interests of the child, the Family Court has considered elements of child welfare issues to determine whether there is a support network, whether the child is informed and competent to decide about medical intervention.

The 3 stages of treatment

1: Suppression of puberty, which is fully reversible.

2: Testosterone or oestrogen treatment, which has irreversible features such as facial hair and voice deepening.

3: Involves surgery and is irreversible.

Courts approach to the 3 stages

Over time children were presenting at Court saying that even if they could get stage 1 treatment, how could they be sure they are going to get stage 2. The Court tried to see how that balance could be achieved where the children were given some hope of getting treatment but for the Court to be sure that the children understood what they were doing.

Gillick Competence

This is where the concept of “Gillick competence” comes in. It was from an English case, which was followed by the High Court in Secretary, Department of Health and Community Services v JWB and SMB [2004] HCA 20, known as "Marion's Case", a case about the potential sterilisation of an intellectually disabled teenage girl. The Court needed to know that these children and adolescents had the emotional, psychological competence and intelligence to make the decision about such a life changing treatment.

Development of Australian Case Law

There are a number of cases, which reflect this evolution and debate and determination of the Family Court.

· Re: Alex (2004) 31 Fam LR 503; [2004] FamCA 297 which determined that all forms of treatment, whether reversible or not, required Family Court authorisation.

· Re: Jamie [2013] FamCAFC 110 discussed whether stage 2 treatment required Court authorization  and because of the nature of stage 2 treatment, the need for the child to be “Gillick competent” and for the Court to determine this.

· Re Kelvin [2017] FamCAFC 258 was a turning point as there had been over 60 relevant cases and the Court felt it needed certainty for those involved. Courts had debated whether Stage1 and 2 were intertwined or whether Stage 2 could be delayed. The clients in Court believed this distinction was further delay and uncertainty, which Re Kelvin resolves. Justice watts made orders for stage-2 treatment and also drafted a series of questions for the Full Court of the Family Court to determine. The result was that the Full Court of 5 judges determined that where all parties, i.e. the child, the parents and the treating medical professionals agreed, the child could undergo Stage 2 treatment without the necessity of going to Court for authorisation.

· Re: Matthew [2018] FamCA 161 (16 March 2018): The Family Court of Australia has determined that children diagnosed with gender dysphoria do not need to apply to the Court for Stage 3 treatment where treating medical practitioners agree that they are Gillick competent and all parties agree. The Court concluded that as the treatment was therapeutic in nature, the Court did not need to be involved.

The Way Ahead

The treatment of Gender Dysphoria cases reflects the evolution of the Family Court and how it mirrors developments in society and how it aims to promote the best interests of the child. If there is controversy between the parties, the Courts will still be involved. If you are uncertain about how to proceed we can give you the legal advice you need.

If you require any legal services relating to this article or anything else please contact us or visit our Sydney CBD office.