Kelvin- changing views of gender in the Family Court

A recent matter heard in the full Family Court has garnered attention as it has overturned a previous case that said that Court authorisation was required before a child (unless they are Gillick competent) could undergo Stage 2 treatment for gender dysphoria. A Gillick competent child is one who is said to be able to give informed consent regarding their own medical treatment.

The matter concerned a 17 year female who in April 2014 transitioned socially as a transgender person (“Kelvin”). He attended various medical professionals in 2015 and 2016 and was diagnosed with gender dysphoria. Gender dysphoria is defined as ‘the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender’.

The Stages of treatment for this condition are:

  • Stage 1- puberty blocking treatment (reversible in first 3-4 years)
  • Stage 2- gender affirming hormone treatment (oestrogen/testosterone partially irreversible)
  • Stage 3- surgical intervention (irreversible)

Kelvin was considered Gillick competent by medical practitioners but the previous authority of Re Jamie [2013] stated that:‘[T]he therapeutic benefits of the treatment would have to be weighed or balanced against the risks involved and the consequences which arise out of the treatment being irreversible, and this would seem to be a task appropriate for a court…’The Full Court in Re Kelvin noted that ‘It is readily apparent that the judicial understanding of Gender Dysphoria and its treatment have fallen behind the advances in medical science’.

The Full Court noted that there is now better understanding of the risks associated to a child who does not receive treatment, risk such as anxiety, depression, self-harm and attempted suicide. Therefore the majority of the Court ruled that court authorisation of Gillick competency is no longer required for stage 2 treatment if there is agreement amongst the parents and medical practitioners.

You can read the full judgment here but we will leave you with the quote for the majority: ‘In other words, 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, and court authorisation is not required.’

If you have a question regarding Family Law or the Family Court Rules, call Kate Walker, Specialist Family Lawyer on 4324 7699.

Skills

Posted on

January 28, 2018

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