Changes to the legal landscape for Transgender children – Do They Go Far Enough?
What is gender identity dysphoria?
Gender dysphoria is a medically recognized condition where a child’s subjectively felt identity and gender are not the same as the gender/biological sex they were born.
This condition can cause children to become very distressed and socially isolated.
How is gender identity dysphoria treated?
There are two treatment stages as follows:
Stage one involves puberty blocking medication, the effects of which can be reversed later on if necessary. For example a child born a boy but subjectively identifying as a girl may wish to take puberty blocking medication to prevent their voice breaking at puberty.
Stage two involves cross sex hormone treatment, the treatment results from this stage cannot be reversed later.
This article from The Medical Journal of Australia provides more information about the treatment for gender identity dysphoria.
If these transgender children do not get the medical treatment they need statistics show that approximately 50% will suffer significant distress and approximately 30% will take their own lives.
Why is the Family Court involved?
- A parent with a child under 18 years of age has parental responsibility for that child, s61C Family Law Act 1975 (“FLA”)
- Parental responsibility rights allow a parent to consent to medical treatment for their child in most cases. This right must be exercised in the best interests of their child (s60CC FLA)
- The Courts have deemed all medical treatment for gender identity dysphoria to fall outside parental responsibility rights, making it necessary for a Court Order to be obtained to treat these children, for both stage one and stage two medical intervention.
- The medical intervention for gender identity dysphoria is known as a special medical procedure, Orders can made for these procedures by the Supreme Court in its parens patriae jurisdiction and the Family Court under s67ZC FLA.
- The Family Law Rules 2004 set out the procedure to follow when applying for a special medical procedure order and evidence needed to satisfy the Court the order is in the child’s best interests.
- Recent significant changes have been determined by the Courts in distinguishing the two stages of treatment.
Re Jamie
One courageous girl and her family challenged the need for judicial permission for stage one and stage two medical intervention for children with gender identity dysphoria.
On appeal in 2013 a full Court of the Family Court of Australia held that parents can now consent to stage one medical intervention without Court approval.
Stage two still requires the Court’s approval, as the Courts have to determine whether a child has capacity (is Gillick competent) to agree to the permanent medical procedures.
The Court also said if there is any dispute about treatment, whether this is for treatment at stage one or two then the Court is determine whether the treatment is in the best interests of the child.
