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Gender Dysphoria and the Family Court

In 2017, the father of a 16-year-old known as Kelvin applied to the Family Court to be allowed to progress Kelvin’s treatment for Gender Dysphoria to Stage 2. Gender Dysphoria is the condition where a person experiences distress as a result of their gender identity being inconsistent with the sex they were assigned at birth. Kelvin had been assigned female at birth but had identified as male since the age of nine and had transitioned socially to male during his second year of high school. He had been diagnosed with Gender Dysphoria and had experienced all the diagnostic criteria for the condition from the age of nine. Kelvin’s father filed reports by a psychologist, a psychiatrist and an endocrinologist supporting his application for Kelvin to receive Stage 2 treatment for Gender Dysphoria, which required the court’s approval.

Gender dysphoria treatment

Gender Dysphoria often leads to distress surrounding the incongruence between one’s gender identity and one’s biological sex. This distress can lead to anxiety, depression, self-harm and attempted suicide.

Stage 1 treatment for Gender Dysphoria consists of the child being placed on “puberty blockers”. These prevent the child from going through puberty in their biological sex and give the child time to develop emotionally and cognitively to the point of being able to give informed consent to the next stage of treatment. Puberty blockers are generally commenced between the ages of nine and 12 and can continue for a period of up to four years. This treatment aims to reduce the distress associated with the physical changes brought about by puberty in the child’s biological sex.

Stage 2 treatment for Gender Dysphoria is the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Stage 2 treatment for a child such as Kelvin who has a male gender identity involves the use of testosterone to masculinise the body. This treatment has some irreversible effects and so must be given when the child has the maturity to provide informed consent. As it is relatively common for individuals experiencing Gender Dysphoria to obtain hormone therapy online in the absence of medical support, the provision of medically supervised hormone therapy is a harm minimisation measure.

Stage 3 treatment for gender dysphoria involves surgical interventions, such as chest reconstructive surgery (or ‘top surgery’), phalloplasty and hysterectomy. Failure to provide Stage 2 treatment to a child with gender dysphoria can result in the child needing otherwise avoidable surgical interventions such as chest reconstructive surgery.

Cross-sex hormone therapy generally leads to improved psychological and social wellbeing for people with gender dysphoria.

Gilick competency

Prior to the Re Kelvin decision, children wishing to undergo Stage 2 treatment for gender dysphoria needed to be found by a court to be ‘Gilick competent’. Gilick competence is a medical law term for assessing whether a child is capable of consenting to medical treatment without the need for parental consent or knowledge. In the re Kelvin case, the court considered the question of whether a court’s finding of Gilick competence was necessary in a situation such as Kelvin’s where the child, his parents and his doctors were all in agreement that Stage 2 treatment should commence.

The Family Law Act

Section 67ZC of the Family Law Act gives courts the power to make orders concerning the welfare of children. In making such orders, the court must treat the best interests of the child as the paramount consideration. In previous cases involving children and their parents who sought to proceed with medical treatment for the child’s Gender Dysphoria, courts has held that such a decision required authorisation by a court under this provision, after a determination that the treatment was in the child’s bests interests.

The decision in Re Kelvin

The court found that an order by the court was not necessary in Kelvin’s situation. The court held that in 2004 when the first application was made to treat a child for Gender Dysphoria, such treatment was considered to have risks that potentially outweighed its benefits. However, the current state of medical knowledge no longer supports this view. There is now more understanding of the dangers of failing to treat a child with Gender Dysphoria, which is no longer categorised as a disorder in the Diagnostic and Statistic Manual (DSM). The increased understanding of Gender Dysphoria and its treatment has meant that such a decision no longer lies outside the boundaries of ordinary parenting authority and therefore no longer requires the intervention of a court.  The court found that the law on Gender Dysphoria treatment for a young person ought to reflect the current state of medical knowledge. Furthermore, the court found that there is now no need for the court to determine whether a young person is Gilick competent and that this determination can be made by the young person’s treating doctors.

The Re Kelvin decision brings Australia into line with the rest of the world. Prior to the decision, Australia was the only country where a court’s approval was required before a young person could undergo treatment for Gender Dysphoria.

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