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.

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