Good News for Transgender Youth

Transgender 1

The Full Court of the Family Court of Australia recently delivered a history making judgement with respect to authorisation of hormone treatment for children with Gender Dysphoria.

The case of Re: Kelvin [2017] FamCAFC 258 has brought an end to the involvement of the Family Court in cases where a child wishes to consent to Stage 2 treatment. It demonstrates the Family Court’s ability to make decisions that “catch up” to developments of medical science, and has been praised by human rights groups and other organisations who support trans and gender diverse young people and their families.

Medically diagnosed Gender Dysphoria is defined by the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) as “the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical intervention by means of hormones and/or surgery are not available”.

Treatment of Gender Dysphoria in young people takes place in two stages - “puberty blocking treatment” (Stage 1) and “gender affirming hormone treatment” (Stage 2).

Stage 1 involves the use of hormones to inhibit the development of puberty. Ideally, it is commenced prior to the onset of puberty (around 9 to 12 years of age). It is reversible in nature and this enables the child to grow and mature over the next 3 or 4 years before they need to make the decision about commencing Stage 2 treatment. Since 2013 (in the case of Re Jamie (2013) FLC 93-547) there has been no requirement for the Court to approve this stage of treatment.

Stage 2 involves the use of either oestrogen or testosterone to change the body of the adolescent to become more feminine or masculine, whichever the case may be. Both hormones cause irreversible physiological effects and for that reason the child not only has to be old enough to fully understand and consent to the treatment, but up until now the Family Court was also required to give authorisation prior to commencement. This requirement had come about due to a 2004 case called Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175.

It should be noted, that Stage 3 treatment relates to surgical intervention and is not legally permitted for individuals under the age of 18.

Up until the decision of Re Kelvin on 30 November 2017, the Court was required to determine whether a child was Gillick competent (of sufficient maturity and cognisance to consent to Stage 2 treatment themselves) and that it was in the best interests of the child to proceed with the treatment. Of the 63 cases that came before the Court since 2013, the Court found in 62 of those cases that the child involved was Gillick competent and that treatment should proceed. (In the remaining case, there was insufficient evidence presented to the Court for a finding and in any event, the child was aged 17 years and 11 months at the time).

The Full Court in Re Kelvin noted the delays caused by the requirement for families to commence Court proceedings in relation to hormone treatment and that the average cost of legal fees was between $8,000.00 and $30,000.00.

The Full Court also noted that due to advances in medical science and the way we now understand the therapeutic nature of hormone treatment (balanced against the risks involved) it was appropriate to depart from a previous Full Court decision (Re Jamie) so that “the law is able to effectively reflect the current state of medical knowledge.”

The outcome of Re Kelvin is now that if a child is diagnosed with Gender Dysphoria, which is a carefully and strictly considered process in itself, Court approval is no longer required for treatment to commence as long as the child, the parents, and the medical professionals involved agree that therapeutic treatment is necessary and should proceed. Importantly, this case also acknowledges the harm, both emotional and physical, that can be caused by failing to treat Gender Dysphoria in young people.

Shelley O’Connell