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The rights of transgender kids in family law

It is a little known fact that until a few years ago, if a child wanted to transition from their birth gender to their expressed gender, that the consent of a Family Court was often required.  In almost all cases now and particularly since 2017, this is no longer the case.

In a 2017 case called re Kelvin the Full Court of the Family Court was asked to decide whether Court permission for a child to transition to their expressed gender was required in circumstances where; the child was considered competent to give informed consent; and where both of their parents consented; and their medical practitioners considered the treatment appropriate.  The Court held that where the consent of the child, their parents and their doctors was freely given, the Court was not required to give any further consent to the treatment.

Whether a child is capable of giving informed consent is known as “Gillick Competency” which involves an assessment of whether the child has sufficient understanding and intelligence to enable them to fully understand the medical treatment that is being proposed. 

A different approach is taken by the Court depending the stage of treatment that it is proposed that the child undertake.  “Stage 1” treatment suppresses puberty and is generally considered appropriate for children aged between 9 and 11, to suppress the physical effects of puberty, reduce the child’s distress of having to experience those changes, and make subsequent treatment less difficult.  Puberty blockers are generally considered to be fully reversible.

“Stage 2” treatment is the process where the gender affirming or cross-sex hormones are prescribed for the child to induce the onset of the gender characteristics desired by the child. Many of the Stage 2 treatments are considered irreversible.  “Stage 3” medical treatment involves surgical chest reconstruction and is sometimes offered by medical practitioners to children aged over 16.  No further surgical interventions are available to people aged under 18 at this stage.

It is the Stage 2 and Stage 3 treatments that often required Court consent, particularly before 2017 and currently, where one of the parents does not consent to the treatment occurring.

Prior to 2017 there had been a number of cases that considered whether the consent of the Family Court was required before the treatment of a child expressing a wish to transition to the opposite gender was required. 

In 2013 in Re Jamie, the Full Court of the Family Court had to consider whether the treatment of childhood gender identity disorder was a “medical procedure” that always required Court authorisation under the Court’s welfare jurisdiction. The Court held that if the child’s parents, treating doctors and child all agreed that the treatment in Stage 1 or Stage 2 should commence, then the Court authorisation was not required. 

If however either Stage 1 or Stage 2 treatment was not consented to (usually by one of the child’s parents) then the Court held that Court authorisation was required before the treatment could proceed. 

The Court also held that if the child was not “Gillick competent”, the Court also had to intervene to decide whether the treatment could begin.  The Court held that Stage 2 treatment fell within the Court’s jurisdiction because of the consequences to the child if the “wrong decision” was made. 

Re Kelvin reversed much of Re Jamie, finding that it is no longer mandatory to apply to the Family Court for determination of whether the child is competent to make decisions where Stage 2 treatment is proposed. 

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