Amongst all of the rapid changes of the twenty-first century, one of the most discussed social issues is gender diversity. Society has come forward in leaps and bounds with respect to the inclusion and rights of Australians who identify as LGBTIQ.
It’s no surprise that young people are among some of the most eager for the opportunity to choose their own identity.
As such, the Federal Circuit and Family Court of Australia has had to adapt their approach to the issues relating to transgender kids as gender dysphoria becomes better understood.
Presently, if both parents and treating doctors give permission for their child to begin transitioning, the Court no longer needs to be involved in the decision making. However, this is a recent occurrence.
As knowledge is power, we aim to outline the significant decisions the Court has made in the lead up to this approach. It may surprise you to learn that the Court used to be far more involved in the process than they are now.
However, it’s still no walk in the park. This article aims to demonstrate the uncertainty that still prevails amongst the Court and its interest in continuing to deal with trans children. There have been massive strides taken in understanding the importance of early treatment on the mental and physical health of a child – which is the primary concern of the parenting matters heard in the Court.
Mental Assessment: The Gillick Competency Test
Ordinarily, when dealing with matters of a child’s health, the Court would determine if a child is capable of making their own decision to undergo gender reassignment treatment by applying something known as the Gillick Competency test.
This test determines whether a young person is able to understand the physical, emotional and mental consequences of the decisions they make in the short and long term.
There is no specific age that determines if a child is able to make their own decisions. Instead, the Court must consider each individual case and determine whether the child is mature enough to be able to understand the effect of their decision.
Assessment of the test involves an investigation as to how the child deals with decision making, based on an examination of the child's ability to understand and evaluate risks.
Physical Assessment: Gender Reassignment Therapy
When dealing with Gender Reassignment for children nearing puberty, there is a 2 Stage Hormonal Therapy that is recommended.
The first stage focuses on the prevention of the onset of puberty in the child’s biological sex. Children are given medication to suppress the release of gonadotropin hormones - the body increasing these hormones is the first event of puberty - which suppresses the onset of puberty itself.
By doing this, children are given the time to reflect over their gender identity without having to deal with the irreversible physical changes that occur to the body during puberty. This is important as not doing so can cause significant psychological harm to a person who identifies as transgender. These medications are considered safe and the first stage is totally reversible.
The second stage focuses on affirming the gender of the child. In the second stage, a person transitioning to female would be given oestrogen and a person transitioning to male would start testosterone. This leads to the onset of the symptoms of puberty.
For transgender males, these symptoms include hair growth, voice deepening and muscle growth. For transgender females, these include breast development, testicular shrinkage and growth height maturation.
The administration of these hormones also carries a risk of impaired liver function. Some of these changes are irreversible.
In 2004, the Family Court had to consider the situation of “Alex”.
Alex was born a girl; however, he was diagnosed as having gender identity dysphoria. This was the first case in which the Family Court had to consider whether to approve treatment for a transgender child. The treatment sought for Alex at the time was in two stages. Until he turned 16, the treatment was to administer oestrogen and progestogen to suppress his menstrual cycle. Once Alex was 16, the second stage of treatment would begin, involving the administering of male hormonal drugs.
Ultimately, Chief Justice Nicholson found that the treatment was in Alex’s best interests and authorised the treatment go ahead.
In making this decision, the Chief Justice set the landscape for how these matters would be treated. The Family Court would be required to weigh in on the treatment of children suffering from gender dysphoria and the two-stage treatment would be seen as a single irreversible treatment package.
It was notable that, while the Chief Justice did not think that Alex was competent to make this decision, the issue of competency was set aside as the Court believed that the treatment was in the best interest of the child.
The next big change in how the Court treats the issue of transgender children revolved around the case of Lucy.
In 2013 a government department acting as Lucy’s guardian made an application for Lucy to begin stage one treatment for her gender dysphoria. Lucy was born genetically and biologically male but identified as female. Lucy was 13 at the time and had just entered puberty and the stage one treatment was proposed as urgently required to prevent the physical changes that were soon to occur that would require surgery to reverse.
Justice Murphy changed the game by determining that stage one treatment was not something that would require the authorisation of the Court. It was Justice Murphy’s belief that stage one treatment was an appropriate avenue to prevent changes that would cause Lucy significant psychological harm until Lucy was Gillick competent and able to make the decision to begin stage two of hormonal therapy.
RE: Sam and Terry
Shortly after the decision in Lucy, Justice Murphy was able to address the issue of whether stage two of hormonal therapy would still require an application of the Court. In two similar but separate cases that were heard together, Justice Murphy found that due to the irreversibility of the Stage 2 treatment, the Court would still need to make a determination as to whether the therapy was in the child’s best interests.
Another important decision that helped shape the path of the Court’s approach was reached in 2013.
In Re Jamie, the Family Court was able to consider the previous decisions that had been made and lay down the guiding principles for future cases. The Court’s position at the time is summarised as follows:
- If a child was determined by the Court to be Gillick competent, the Court did not need to determine if treatment is in their best interests or make a decision as to whether to proceed with treatment. This was the case unless there was a disagreement involving the child, the child’s parents or the child’s doctor as to the need for treatment.
- Stage one and stage two are part of the same treatment package but were to be considered separately.
- Court authorisation was not required for stage one of treatment unless the child is subject to a guardianship order or there is a disagreement involving the child, the child’s parents or the child’s doctor as to the need for treatment.
- Court authorisation was required for stage two of the treatment.
- The Court would give considerable weight to the wishes of the child.
In 2017 the Court was asked to confirm their decision in Re Jamie and determine if those principles set down were the correct way to go about the handling of children suffering from gender dysphoria.
They determined that stage two treatment did not require court authorisation. Provided the child consents to the treatments, the doctors are of the belief that the child understands the long-term effects of the treatment and the parents have no objection, stage two hormonal therapy could begin.
This was a significant departure from the decision in Re Jamie and only 13 years from the original decision in Re Alex.
This decision marked the Court’s eventual catch up with the medical profession on the treatment of gender dysphoria and was expected to have a significant impact on the health and wellbeing of transgender youth. The Court continues to follow this decision in 2019.
Where Do We Stand Today?
While the Court no longer needs to intervene in cases where children have permission from both parents and their treating doctors, the frequency at which the Court has had to change their stance on the authorisation required for treatment shows that it is very possible that this approach will change yet again.
It is recommended that prior to your child commencing treatment that you seek advice from a solicitor as to what legal steps, if any, you should take.