Changing Gender

Question14

Pursuant to section 67ZC of the Family Law Act, the Family Court of Australia has the power to make orders relating to the welfare of children. Pursuant to this power, the Court sometimes steps into the shoes of parents and guardians and makes decisions that would otherwise be considered to be their responsibility.

Medical procedures 

The most frequent use of the welfare power has arisen in the area of medical treatment of children.  Generally speaking, this is a power exercisable by parents in conjunction with medical advice but it has been determined over time that certain medical procedures can only be authorised by the Court.

Marion's case

In 1992, the High Court considered this power in a case involving a 14 year old intellectually disabled child.  The Court held that a parent could not give consent to medical treatment such as non-therapeutic sterilisation and the Court’s consent was required.

Gender dysphoria 

The Court has also been called on to authorise medical procedures relating to what was originally called "gender identity disorder" but is now described as "gender dysphoria". In the case of Re Alex in 2004, the Court was, for the first time, called upon to consent to authorising both stage 1 and stage 2 treatment. The Judge determined that Court consent was required for both stages.

The Court had the opportunity to reconsider the necessity of Court intervention in this type of medical treatment in the cases of Re Jamie and Re Sam and Terry in 2013.  The Court determined in these cases that authorisation was required for stage 2 only. The difference between stage 1 and stage 2 was the irreversible nature of the treatment in the second stage.

Re Kelvin

The Court has again considered these issues in 2017 and has now decided that generally speaking, there is no need to obtain the consent of the Court for treatment in stage 1 and/or stage 2.  They have come to this conclusion for the following reasons.

  1. The advances in medical science regarding the purpose for which the treatment is provided has significantly advanced between 2013 and 2017;
  2. The nature of the treatment; and
  3. The risk involved in undergoing, withholding or delaying treatment.

However, this decision does not mean that there are no circumstances in which the consent of the Court to undertake gender dysphoria would not be required.  For example, consent would possibly be required if:

  1. The child the subject of the proposed treatment was in the care of a State Government Department; or
  2. There is a genuine dispute or controversy as to whether the treatment should be administered, e.g. where the parents, the child or the medical team did not consent.

Conclusion 

As a result of the decision in Re Kelvin, the delay in obtaining treatment will be significantly reduced and there will also be a significant financial saving. Thus, for an increasing number of young people, the removal of the need for Court applications will significantly improve the quality of their lives. There is a very detailed treatment guideline that the medical profession adheres to in the treatment of these young people, including a comprehensive multi-disciplinary assessment.  Therefore, there still remains sufficient checks and balances in the system.

For more information

Department of Health & Community Services v JWB & SNB ("Marion's Case") [1992] HCA 15

Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297

Re Sean and Russell (Special Medical Procedures) [2010] FamCA 948

Re Jamie [2013] FamCAFC 110

Re Lucy (Gender Dysphoria) [2013] FamCA 518

Re Sam and Terry (Gender Dysphoria) [2013] FamCA 563

Re Kelvin [2017] FamCAFC 258