Australia: Victory for transgender children in recent Family Court decision.

Last Updated: 13 December 2017
Article by Kym Fraser and Matthew Condello

In a watershed moment for transgender rights, the Full Court of the Family Court has decided that transgender children no longer need to seek the approval of the Court before accessing hormone treatment where the child's doctors and family agree to the treatment.

As lawyers, we often think our involvement in important decisions is a good thing. But realistically, there are some decisions that lawyers are not best placed to make. Since 2004, transgender children have been required to seek the approval of the Family Court before accessing hormone treatment, even in situations where the child, their parents/guardians and doctors agree. This has led to claims that the imposition of the legal system on what is essentially a medical decision is unnecessary, costly, and ultimately damaging to transgender children and their families. The recent case of Re Kelvin [2017] FamCAFC 258 has removed this requirement.

Treatment for transgender children

Since 2004, the Courts have categorised the non-surgical aspects of treatment for transgender children into two stages.

Stage one involves the administration of puberty blockers. Stage one treatment is reversible. The purpose of stage one treatment is to prevent a child from entering puberty and developing the characteristics of a gender to which they do not identify. For example, without blockers, a trans female will develop facial hair and their voice would deepen. Other than making the transitioning process more difficult, these developments can severely impact a trans person's mental health and wellbeing.

Stage two involves the administration of cross-sex hormones – that is, the hormones associated with the gender to which the child identifies. Some aspects of this process are irreversible. Accessing stage two treatment assists trans individuals in the transitioning process, but also allows them to experience puberty in the same way as their peers. There are serious concerns associated with delaying stage two treatment, as without that treatment, trans children are left in limbo while their peers go through puberty.

The approval process

In 2004, the Family Court decided that court authorisation was required before a child could access stage one and stage two treatment. The Court made this decision by applying the High Court decision in Marion's Case. Marion's Case dealt with an application by the parents of a child with severe mental disabilities, who sought a number of procedures which would result in the child's sterilisation. The High Court held that court authorisation was required because the procedures were non-therapeutic (that is, not directed at curing a malfunction or disease), the procedures were irreversible and the consequences of making a wrong decision were particularly grave. In applying Marion's Case, based on the medical knowledge at the time, the Family Court found that court authorisation was required.

In 2013, a Full Court of the Family Court in Re Jamie decided that, as stage one treatment is therapeutic and reversible, it does not require court approval. However, the Full Court found that stage two treatment does require court authorisation. This was the case even though the Full Court found that treatment for transgender children is therapeutic.

Importantly, Australia is the only jurisdiction in the world in which Court authorisation must be sought prior to accessing stage two treatment.

Re Kelvin

Since 2013, there have been calls for legislative reform or an appellate decision to overrule the requirement to seek court authorisation before accessing stage two treatment. Ultimately, the Full Court of the Family Court ruled on the matter in Re Kelvin. In Re Kelvin, the father of a 17 year old trans male applied to the court for approval of stage two treatment. The case was elevated to the Full Court on the question of whether approval for stage two treatment is still required.

In what has been a relief for transgender children and their families, the Full Court held that stage two treatment no longer requires court authorisation. This was because the state of medical knowledge had advanced such that the court no longer considered that it had a role to play on the question of whether a trans child should have access to stage two treatments. It is important to note that this is only the case in circumstances where a child, their doctors and parents agree to the treatment. Where there is a dispute, the Court quite rightly has a role to play in assessing what is in the best interests of the child.

An important step forward

Trans children and their families continue to face barriers to achieving complete acceptance and respect, both legally and socially. The requirement for trans children to go to court, meet with lawyers and to ultimately obtain the go ahead from the court to become the person they know they are, has been a difficult process for many. Aside from the mental health impacts of the legal process, applications for Court approval can cost between $8,000 and $30,000. This is a serious drain on resources and a cost that many families are not able to meet.

Now that this impediment to treatment has been removed, trans children and their families (with their doctors) can focus on, and be empowered to make, decisions on the most important issue – what is best for their own health and wellbeing.

This decision is big step forward for trans rights in Australia.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions