On 30 November 2017 the Full Court of the Family Court of Australia handed down its much anticipated judgment in Re Kelvin. In this case, the Full Court considered the necessity for Court authorisation for hormone treatment for children with Gender Dysphoria.
Since the 2004 decision of Re Alex: Hormonal Treatment for Gender Identity Dysphoria, prior to commencing any hormone treatment, children with Gender Dysphoria were required to obtain approval from the Family Court, notwithstanding the fact that the child, the child’s parents and the child’s medical experts may all have agreed that hormone treatment is appropriate and necessary.
Between July 2013 and August 2017 in 62 of 63 cases, the Family Court has approved the commencement of stage 2 treatment. In the only case refused, the teenager was almost 18 and there was insufficient evidence to find the child was “Gillick competent’’ to agree to the treatment.
The need to obtain the Court’s consent to commence treatment only served to ensure that an already stressful and difficult process was ever more so. The need to obtain the Court’s consent also resulted in significant delays for trans-teens. In a qualitative study undertaken by Fiona Kelly in 2016, referred to by the Court in its initial judgment, it was found the average delay experienced by families applying to the Court was 8 months from the time the process was initiated until the time the child commenced treatment; it was also found that the cost of such an application varied between $8,000 and $30,000.
However, in Re Kelvin the Full Court agreed that it was appropriate to depart from the previous Full Court decision in Re Jamie as the understanding of Gender Dysphoria had significantly advanced since 2013. The Full Court held “The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the court’’. In Re Kelvin, the Court found that a child who is capable of giving informed consent (Gillick competent) can authorise stage 2 treatment for Gender Dysphoria and it is not necessary for a Court exercising jurisdiction under the Family Law Act to find so. Where a child is incapable of giving valid consent, those who have parental responsibility for the child may authorise treatment, without the Court’s authorisation.
This means that parents will be able to make decisions about hormone treatment, in consultation with a health care team and their child, without the need to obtain consent from the Family Court.
In Re: Kelvin, the Full Court of the Family Court was asked a series of questions concerning hormone treatment for those under 18 years old, and whether Court approval was necessary for such treatment.
The child Kelvin had been born female and had fulfilled the criteria for Gender Dysphoria from at least the age 9. He had transitioned socially and was living as a male. He had not undergone stage 1 treatment and going through female puberty had caused him significant distress. Kelvin, by now 17 years old, had been diagnosed with Gender Dysphoria and was supported in his application by his parents.
Kelvin was found by the Court to be “Gillick competent’’ to consent to the administration of testosterone to initiate changes to make him masculine.
The Full Court was asked to decide whether the law should still require Court approval for hormone treatment, when there was no such requirement in most cases involving other medical treatment of children.
History of the Family Court’s Decisions in relation to treatment for Gender Dysphoria
Procedures which require the authorisation of the Family Court are defined as “special medical procedures” and are captured by the welfare jurisdiction of the Family Court. The criterion for a “special medical procedure” is defined as medical intervention that is:
- Invasive, permanent and irreversible;
- Not for the purpose of curing a malfunction or disease; and
- Carries a significant risk of making a wrong decision and that decision has potentially severe consequences.
When considering whether to authorise a “special medical procedure” the Family Court must be satisfied that, among other things, the medical treatment is in the child’s best interests.
Gender Dysphoria Treatment Overview
By way of general background, gender dysphoria treatment is undertaken in two stages:
Stage 1: Administration of puberty-suppressant hormones. This stage of treatment is reversible; and
Stage 2: Administration of testosterone for a child identifying as male or estrogen for a child identifying as female. This stage is irreversible.
The majority of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority (‘Gillick’) held that a child is capable of providing his or her own consent to medical treatment where he or she is found to be of sufficient intelligence and maturity to fully understand what is involved. This case has been approved in a number of Australian decisions.
The Full Court in Re: Kelvin decided that if the nature of the treatment no longer justifies Court authorisation, and there are no concerns about significant risks of making the wrong decision with grave consequences, there is no longer a basis for the Court to determine “Gillick competence”.
The Full Court’s decision in Re: Kelvin has been widely celebrated by many Human Rights and LGBTQIA+ community. It is hoped that this decision will ensure treatment process without the delay and the distress that the Court system imposes on children and their families.
The Family Court’s authorisation will still be required where there is a genuine dispute or controversy as to whether the treatment should be administered, for example if the parents or the medical professionals are unable to agree.
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