Australia: Gender Dysphoria: Considerations for the Family Court when authorising special medical procedures

While the number of children affected by gender dysphoria is small, the impact on their lives if not recognised and treated is potentially significant, particularly as they approach puberty.  Fortunately, knowledge and understanding of the condition is growing and there has been a lot of media attention surrounding children affected by gender dysphoria and the benefit to them of receiving the appropriate treatment at the appropriate time.  

In this alert, Partner Alison Ross, Associate Kathleen Coggins and Law Graduate Christina Hooper consider the factors that confront a Court when determining whether a child should be able to access treatment for gender dysphoria. 

Children with gender dysphoria, by definition, have a strong identification with the gender of the opposite sex and experience significant discomfort with their biological gender. These children often experience clinically significant levels of distress, as well as social and occupational impairments because of their condition.

Treatment is often undertaken in two stages.  Stage One treatment for gender dysphoria is fully reversible and Court authorisation is not required. Stage Two treatment, however, has irreversible results and is therefore considered a special medical procedure. This means that, unless the child is considered competent, treatment cannot occur without Court authorisation. The child must have a "sufficient understanding and intelligence to enable him or her to fully understand what is proposed", otherwise known as being Gillick[1] competent.

If a child is considered Gillick competent, they can consent to the medical treatment and the Court's authorisation of the treatment is not required.

If a child is not considered competent, the Court is required to have regard to the best interests of the child as the paramount consideration when determining whether or not treatment should be authorised.  Factors which a Court must take into consideration when determining whether to authorise treatment for gender dysphoria include:

  • Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court considers are relevant to the weight it should give to the child's views;
  • The maturity, sex, lifestyle and background (including culture and traditions) of the child and of either of the child's parents;
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
  • Any other fact or circumstances the Court thinks is relevant.

In the recent decision of Re Logan [2016] FamCA 87, the Family Court of Australia was required to consider whether a child with the condition of transexualism (gender dysphoria) was competent to consent to the administration of a special medical procedure, being Stage Two treatment for gender dysphoria.  In this case, the child was born male. The child experienced discomfort during puberty and strongly disliked the male parts of her body.

The child began identifying as transgender onwards from about Year 8. She commenced Stage One treatment at the age of 15 and was observed to be less distressed. The child, through her parents, subsequently sought to change her name on her birth certificate from her male birth name to the name by which she is now known.

In that case, the Court found that it is a basic right of a child to be provided with the opportunity to be heard in the decision making process.  This could include the Court directing that a family consultant prepare a report (including in relation to whether the child has a sufficient understanding and intelligence to fully understand the procedure) or for the child to be independently represented in the proceedings by a lawyer.

In Re Logan, the Court considered whether the child understood the risks and side effects of the treatment. The assessment of the child's competence was also made having regard to the child's welfare. This involved the Court's consideration of:

  • Evidence from the child's parents about the child's stress and emotions in her current state;
  • The support each parent had expressed regarding the child proceeding to Stage Two treatment and their deposition that she was capable of providing consent to undergoing the treatment;
  • The treating doctor's report that indicated a view that the child would feel less anxious, agitated and upset;
  • The child's intention to move overseas after finishing school and her desire to start treatment while she had a familiar medical infrastructure in place;
  • Medical evidence as to the impact on the child of denying the treatment; and
  • Evidence from the family consultant as to the potential effect on the child of not being able to access the treatment.  

The Court, in considering the facts of the case, took into account medical evidence that it was not a viable option for the child to remain on Stage One treatment in the long term. When considering whether the child had capacity to make an informed decision as to receiving Stage Two treatment, the Court took into account the child's age (16) and the fact that the child had a clear understanding of the risks and side effects of Stage Two treatment. The Court ultimately determined that the child was Gillick competent and, as such, could consent to the Stage Two treatment without further Court proceedings.

The case of Re Logan is a recent example of the Court's approach when considering whether or not judicial authorisation is required for a child to undertake a special medical procedure and, if so, whether the medical procedure should be authorised. The HopgoodGanim Family Law team are able to advise parents about whether an application may be required and also in relation to any applications where the Court's consent may be required before a child is able to undertake a special medical procedure.

Footnote

1 Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7

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