Australia: Gender dysphoria in Australia: The judicial response in re Kelvin

Last Updated: 5 May 2018
Article by Greg McAllister

In the recent case of Re Kelvin1 (Kelvin), the Full Family Court of Australia was again required to consider what role the courts should have in deciding whether minors with gender dysphoria can commence hormone therapy. In what has been described as a landmark case, adolescents will no longer be required to obtain court approval to undergo treatment where they have the permission of their parents and treating doctors.

To understand the decision in Kelvin and the implications of the judgment for those with gender dysphoria, it is helpful to know Kelvin2 and to have an understanding of gender dysphoria and the legal framework for treatment that existed prior to the decision.

Kelvin's Story

Kelvin was born with female genitalia at birth. Kelvin identified with transgender concepts at age 9, and by the age of 13 began to identify publicly as male. Since 2015, Kelvin has attended a suite of medical practitioners and counsellors and was ultimately diagnosed with gender dysphoria. Kelvin's transition had the support of both his parents, with his father filing the initiating application on 25 January 2017.3

At the time of filing the initiating application, Kelvin had not undergone stage 1 treatment and was experiencing female puberty. This, as well as Kelvin's history of struggles with identity and ultimately gender dysphoria, resulted in him living with anxiety and depression and had led to self-harm. The initiating application sought to allow Kevin access to stage 2 treatment with the support of Kelvin's treating doctors.4

It was submitted that Kelvin's overall health and wellbeing would deteriorate if access to stage 2 treatment was denied. Without treatment, Kelvin would continue to experience social isolation and frustration, and ongoing disgust with his body. These were noted as triggers for suicide attempts.5

Transgender and Gender Dysphoria

'Transgender' is a term that applies to individuals whose gender identity, either transiently or persistently, does not match their biological sex at birth. A person who identifies as transgender is not necessarily gender dysphoric, although all people with gender dysphoria are transgender. Gender dysphoria is a medical condition where a child does not identify with their biological sex. A child with gender dysphoria will feel and express a strong desire to be the opposite gender than that to which they were born and will experience uneasiness and frustration in connection with their gender identity.

Diagnosis of gender dysphoria

Diagnosis of gender dysphoria is governed by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5),6 with gender dysphoria having replaced 'gender identity disorder' as the diagnostic term from earlier editions. This in itself has been hailed by advocates of transgender rights as a turning point for all persons experiencing gender issues, as the former definition incorrectly characterised all transgender people as mentally ill.

Symptoms of gender dysphoria manifest at different developmental stages, but intensify during puberty. To make a diagnosis of gender dysphoria in adolescent or adult patients, the person must exhibit at least two of the following criteria for at least a six-month period, and it must cause them significant distress:

  • a significant difference between their own experienced gender and their secondary sexual characteristics;
  • a strong desire to be rid of their secondary sexual characteristics or prevent their development;
  • wanting secondary sexual characteristics of the opposite gender;
  • wanting to be treated as the other gender; and/or
  • a strong belief that they have the feelings/reactions of the opposite gender.7

Management of gender dysphoria

Research suggests that due to the mismatch between a child's biological sex and their perceived identity with the sex they identify with,8 it is common for people with gender dysphoria to have psychological symptoms, including anxiety and depression. Studies suggest that when gender dysphoria intensifies with the onset of puberty, it seldom subsides.9

Treatment for gender dysphoria involves two stages of hormonal therapy, accompanied by psychological treatment. Stage 1 treatment involves the provision of medication to prevent the onset of puberty in the child's biological sex. Stage 1 treatment is reversible. Stage 1 treatment may be commenced by children between the ages of 10 and 13. Stage 2 treatment comprises hormone treatment to encourage the development of physical characteristics in the sex with which the child identifies. Stage 2 treatment is considered to be irreversible. Stage 2 treatment is generally available once a person has reached approximately 16 years of age.

In conjunction with stage 1 and stage 2 treatment, some adolescents with gender dysphoria may undergo a mastectomy (also referred to as 'top surgery'). A person may undergo gender reassignment surgery once they reach 18 years of age. Gender reassignment surgery will not be considered for a person under 18 years of age. Top surgery and gender reassignment surgery are sometimes referred to as stage 3 treatment. It has been suggested that early treatment for gender dysphoria optimises psychological and social development.10

Gender Dysphoria in Children and Adolescents: Jurisprudence in Australia

In 2004, the Family Court of Australia in the case of Re Alex: Treatment of Gender Identity Dysphoria (Re Alex)11 determined that treatment for gender identity disorder (as it was known then) was non-therapeutic and fell outside the boundaries of parental consent. Specifically, the Court held that both stage 1 and 2 treatments were 'special medical procedures' that, despite the desires of the person to undergo the treatment or the permission of parents or legal guardians and support of treating medical practitioners, required court approval before they could be undertaken.12 In 2009, Re Alex was again before the Family Court of Australia. On that occasion, the Court found that it was in Alex's best interests to have a double mastectomy and approved the surgery.

In 2013, in Re Lucy (Gender Dysphoria),[13] the Family Court of Australia held that 'treatment for gender dysphoria is therapeutic treatment because it is administered primarily to ameliorate a psychiatric disorder',14 a marked shift from how the treatment was classified in Re Alex. The Court held hat its approval was not required for stage 1 treatment.

Shortly after the judgment was delivered in the case of Re Lucy, the Family Court of Australia echoed that judgment in Re Sam and Terry (Gender Dysphoria).15 In Re Sam and Terry, the Court held that court approval was not required for stage 1 treatment and that parental consent was sufficient. However, court approval would be required for stage 2 treatment.

In 2013, in the case of Re Jamie,16the Full Family Court of Australia affirmed the position adopted in Re Lucy that parents are permitted to consent to stage 1 treatment for gender dysphoria, while court approval is required for stage 2 treatment. While the Full Court appeared to accept that both stage 1 and stage 2 treatment could be characterised as 'therapeutic', a key consideration in the Court's distinction between the approval process for stage 1 and stage 2 treatment was its view that stage 1 treatment carried a low risk of error from misdiagnosis, and that the consequences for the child were 'ameliorated or alleviated' in circumstances where stage 1 treatment is reversible.17 In contrast, the Court formed the view that there would be irreversible effects and significant risks to a child if a wrong decision was made in relation to stage 2 treatment.

Importantly, the Court held that a 'Gillick competent' minor can consent to stage 2 treatment. The test to determine whether a child has the capacity and competence to consent to treatment comes from Gillick v West Norfolk and Wisbech Area Health Authority,18 where it was held that a child is deemed to have the capacity to give informed consent when he/she 'achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed'.19 However, the Court imposed a requirement that a court application must first be made for determination that a child is Gillick competent.

The judgment in Re Jamie was at the time viewed as a positive one because, despite the imposition of the requirement that Gillick competency be determined by the courts, it was said to allow better access to treatment for transgender adolescents.

Kelvin: A Turning Point for Adolescents with Gender Dysphoria

In the decision of Kelvin, the majority of the Full Family Court of Australia held that adolescents with gender dysphoria who have parental consent and medical support no longer require court approval or a determination that they are Gillick competent to undergo stage 2 treatment. Thackeray, Strickland and Murphy JJ found that it was 'unnecessary and indeed inappropriate' for the Court to find that the decision in Re Jamie was 'wrong' or that it ought to be 'overruled'. Rather, their Honours reasoned that a departure from the decision in Re Jamie is justified, as it no longer accords with the current medical knowledge and that 'the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment'.20

In reaching its decision, the majority of the Court made it clear that stage 2 treatment 'can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority'.21 The Court noted that the decision in Re Jamie would likely have differed if it were made today.22

It is important to note that where parental consent is not forthcoming or available (for example, where a child is under the care of a state government department), or where there is disagreement between the parents or between the medical professionals as to whether the treatment should be administered, the Court retains jurisdiction and power to address those issues.23


Prior to the decision in Kelvin, Australia was the only country in the world that required transgender adolescents to obtain the approval of the court to access stage 2 treatment. This decision marks the court catching up with the medical profession on the treatment of gender dysphoria. The decision in Kelvin has been welcomed by transgender and children's advocates, who believe it 'will improve human rights protection for young transgender people'24 and 'will have a significant, positive impact on the health and wellbeing of trans young people'25 in Australia.

Needless to say, there are further challenges ahead for transgender adolescents like Kelvin. It is hoped that this decision will provide the legislature with a guide as to how it should sensitively and sensibly grapple with the other 'legal' issues affecting transgender persons.


1 [2017] Fam CAFC 258.

2 A pseudonym.

3 Kelvin, 24-36.

4 Ibid, [37], [38]-[43].

5 Ibid, [48]-[50].

6 5th ed, American Psychiatric Association Publishing, USA, 2013.

7 While there is some similarity between the criteria for adolescents (and adults) and that for children, the DSM criteria in children requires six months of significant distress or impairment with six out of eight criteria being met.

8 While it cannot be said that all who experience gender dysphoria want to be the opposite sex, the DSM criteria for a gender dysphoria diagnosis includes 'a strong desire to be rid of their secondary sexual characteristics or prevent their development' and 'wanting secondary sexual characteristics of the opposite gender'.

9 K J Zucker, 'The DSM Diagnostic Criteria for Gender Identity Disorder in Children', Archives of Sexual Behavior, 39: 477, 2010; A L de Vries, P T Cohen-Kettenis, 'Clinical Management of Gender Dysphoria in Children and Adolescents: the Dutch Approach', Journal of Homosexuality, 59:301, 2012; N P Spack, L Edwards-Leeper, H A Feldman et al, 'Children and Adolescents with Gender Identity Disorder Referred to a Pediatric Medical Center', Pediatrics, 129:418, February 2012.

10 M Smith, QUT Australian Centre for Health Law Research, 'Treatment for Childhood Gender Dysphoria and the Law In Australia' (September 2016) < https://cms. >.

11 [2004] FamCA 297.

12 Note that the Court can authorise treatment only if medical opinion that the treatment is in the child's best interests is present. Medical consent was obtained for each of the cases presented in this article.

13 [2013] FamCA 518.

14 Ibid, [99].

15 [2013] FamCA 563.

16 [2013] FamCACF 110.

17 Ibid, [85].

18 [1986] AC 112.

19 Ibid, 183-4 (per Scarman LJ). The principle and test for 'Gillick competence' was made law in Australia in Department of Health & Community Services v JWB & SMB (Marion's case), 238 (per Mason CJ and Dawson, Toohey and Gaudron JJ).

20 Kelvin, [162] and [177].

21 Ibid, 164].

22 Ibid, [164] and [165].

23 Ibid, [133].

24 Australian Human Rights Commission, Commission Welcomes Re Kelvin Decision (30 November 2017) < >.

25 Ibid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

Greg McAllister
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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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