Gender Dysphoria and the Family Court

Gender dysphoria can be described as medically diagnosed significant distress or impairment, related to a strong desire to be another gender or change primary or secondary sex characteristics.

A decision by the Family Court in the Kelvin case has set an important and welcomed precedent for children wanting to undergo hormone therapy to bring about puberty in the gender the child identifies with.

Currently, where a child, their parents and doctors are all in agreement that hormone therapy should begin, there will be no need to apply to the Court for approval.

The Kelvin decision has been welcomed as this means less stress and anxiety is placed on a child wanting to start hormone therapy for gender reassignment.

What is Gender Dysphoria?

As mentioned above gender dysphoria is the discomfort a person feels with how their body is perceived and may occur when a person feels their biological or physical sex does not match the sense of their own gender. It’s important to note that not all transgender or gender diverse people experience gender dysphoria.

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

Stage 1 treatment involves the child taking “puberty blockers” which prevent the child from going through puberty in their biological sex and therefore time to develop emotionally and cognitively where they are able to give informed consent to the next stage of treatment.

Stage 2 treatment consists of the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Hormone therapy has some irreversible effects so it can only commence when the child has the maturity to provide informed consent.

Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery, phalloplasty and hysterectomy.

The role of the Family Court in the treatment of Gender Dysphoria

In Australia, the Family Law Act 1975 gives the Court authority to make orders relating to the best interests of the child relating to non urgent medical intervention. Before 2017, Australia was the only country where transgender adolescents had to seek permission from the Court to start stage 2 treatment for gender dysphoria.

Stage 2 treatment was only available to transgender adolescents, who the Court believed had reached a ‘Gillick’ level of competency. The Gillick test is used to determine whether a child is legally capable of consenting to medical treatment, without their parents’ knowledge or consent. In 2017, however, the case of Kelvin brought about change to this status quo.

The Kelvin case

As mentioned above, the case of Kelvin set a new precedent for the commencement of stage 2 treatment. Kelvin was born female but diagnosed with gender dysphoria at age nine after identifying as male. Kelvin’s father filed an application to the Court containing evidence from an endocrinologist, psychiatrist and a psychologist that supported Kelvin commencing stage 2 treatment. The court decided that there was no requirement to satisfy the Gillick competence test in Kelvin’s case as all parties, including the parents and treating doctors, agreed that Kelvin should proceed to the next stage of their treatment. Therefore, it was not necessary to make an order approving commencement of stage 2 treatment.

The court also declared that previous case law was decided based on potential health repercussions of new medical treatments. By the time Kelvin’s case was heard in the Court, there was a clearer understanding of gender dysphoria and treatment options.

If you or your child’s treating physicians are unsure if your child is ready to start stage 2 treatment, and would like further legal advice on moving forward, we recommend you speak to one of our experienced family lawyers.

Conclusion

The decision in Kelvin is a triumph for gender and family law as it aligns Australian law with contemporary attitudes held by the medical community at large.

It has also been welcomed by children dealing with gender dysphoria, especially where the child consents and wants to proceed with stage 2 treatment and the child’s parents and treating medical practitioners have no objections to the child commencing treatment.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.