Gender dysphoria and gender transformation surgery
Family & Relationship Law eBulletin - 10 December 2015
Parents do not always have the right to consent to medical procedures for their children, as there are some procedures which can only be initiated with consent from the Family Court of Australia. Gender reassignment treatment is one such procedure.
In 2013, the Full Court of the Family Court ruled on an appeal concerning a request for stage two gender reassignment treatment of a 13 year old boy. The boy identified as female and wished to receive medication to supress puberty and the obvious gender identifying effects that puberty brings with it. This matter is known as Re Jamie.
In this particular case, the Full Court ultimately ruled that treatment could proceed. However, the appeal brought up a range of issues, including whether a child (in Australia, defined as someone under the age of 18) has the capacity to make such life changing decisions for themselves, and if not, does anyone other than the court have the capacity and authority to make such decisions on their behalf?
- What is Gillick competence?
- Current state of play
- Where to from here?
- Further information
A young person experiencing gender dysphoria (gender identity disorder) identifies strongly with the opposite sex and often experiences discomfort with their biological sex and the gender that they physically exhibit.
Children under the age of 18 who experience gender dysphoria and wish to access the two-stage medical treatment necessary to begin a gender transformation must first obtain the consent of the Family Court of Australia. When deciding whether to exercise its discretion and consent to treatment, the Court's primary consideration will be what is in the child's best interests.
Given stage one treatment for gender dysphoria is therapeutic in nature and is reversible, court authorisation is generally not required at this point. Stage two treatment for gender dysphoria, while therapeutic in nature, has irreversible features and court authorisation is required where a child is considered to be non-Gillick competent.
Gillick v West Norfolk Area Health Authority is the benchmark case of underage capacity for when a child attains an age with the appropriate maturity and understanding to make decisions for themselves which are for all intense and purposes, irreversible. The term Gillick competence is used to refer to the test of maturity applied by the courts.
Children fall into two categories, being non-Gillick competent and Gillick competent. The latter being considered mature enough to make decisions on their own behalf. Court authorisation is required for non-Gillick competent children where:
- the procedure is invasive, permanent and irreversible;
- when the treatment is not for the purpose of curing a malfunction or disease; and
- where there is a significant risk of making a wrong decision and where that wrong decision has potentially grave consequences.
It is the Family Court's responsibility to assess whether a child is Gillick competent.
It is the permanency of the stage two treatment for gender reassignment with which the Court is primarily concerned, as the nature of the treatment means that any wrong decision will have long lasting and irreversible consequences. By the same token, the consequences for withholding treatment can be just as significant.
The Family Court has acknowledged the arduous process that families face when making an application for treatment; in spite of this, the process continues to be costly and burdensome. Medical experts from the Royal Children's Hospital have warned of potentially disastrous consequences should treatment be delayed as a result of lengthy and costly court proceedings.
Cases heard by the Family Court show that when a young person's body begins to develop into a gender they have rejected, they can often experience distress and can be subject to bullying, which in some cases will lead to depression and self-harm.
The number of children seeking medical treatment for gender reassignment is on the rise, and the Family Court's intervention is viewed by many as an unnecessary and costly obstacle. Court proceedings can be lengthy, and for young people with gender dysphoria, access to medical treatment can often be needed as a matter of urgency.
Australia remains the only country in which court authorisation is necessary for gender reassignment treatment, although in some Australian states (such as South Australia), an individual of 16 years or over can legally consent to medical treatment.
So far, there have been no further appeals since Re Jamie. This lack of case law means that Family Court judges must continue to make their decisions based on current Australian case law, which is very much still in its infancy.
Since the Re Jamie decision, there have been multiple cases where judges have had to consider whether to provide consent to stage two treatment of gender dysphoria. While the Family Court has ultimately consented to the treatment in all cases, the various judges considering the cases have given a variety of different reasons for their judgements and made a variety of different orders.
Chief Justice of the Family Court, the Hon Justice Diana Bryant and the Hon. Justice Steven Strickland of the Appeal Division of the Family Court have both expressed their hope that a case will someday soon be appealed, perhaps as far as the High Court, to cause a reconsideration of the Gillick and Marion1 cases, reducing the legal and financial hurdles families must deal with to obtain this life changing treatment for children with gender dysphoria.
Catherine Hillis | Lawyer
+61 3 9269 9105
1 Secretary of the Department of Health and Community Services v JWB and SMB. This case considered the extent to which parents and or guardians can make decisions for children in their care regarding "non-therapeutic" surgical procedures. The procedure in question was a hysterectomy and oophorectomy (removal of the ovaries) of a severely disabled girl, which would render her sterile and stop puberty. It was held in this case that only a court of superior jurisdiction, such as the Family Court of Australia, could order this type of procedure to be performed.
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