Transgender Children’s Rights to Hormonal Treatment Without Court Approval Strengthened in Recent Re Kelvin Case

Background

As reported in The Australian in September, children experiencing gender dysphoria (i.e. where a person experiences distress because of a difference between their biological sex and gender identity) and wishing to undergo hormone treatment may be able to do so in future without the approval of the Family Court, as result of a landmark case which started in Sydney in late September. Children wishing to access irreversible hormone treatment have had to seek approval from a Family Court judge. Families argued this is a lengthy and expensive process that can affect the mental health and wellbeing of the child at a time they are rapidly maturing and experiencing puberty. Legal costs can amount to thousands of dollars and waiting for a hearing can take more than ten months. The case, Re Kelvin, as it is known, was brought by the father of a 16-year-old who was born female but has identified as male since the age of 9. Kelvin was diagnosed with gender dysphoria and, although both parents had given consent to administering hormone treatment, court approval was still needed.

As reported, hundreds of teenagers and their families, unable to afford the $20,000 plus legal fees, have been left to wait until they are 18 to start the process without court intervention. Many Family Court judges had also indicated they did not think the decision about such medical treatment should come before the Court.

Additionally, the Attorney General gave notice of two constitutional matters that would arise from the proceedings, including the judicial power in determining the role of the Family Court.

On 30 November 2017, the Full Family Court handed down its decision.

Key Issues

Treatment for gender dysphoria has three stages. The first involves “puberty blocking” and can be reversed if used for a limited period. Stage 2 involves hormone treatment and is irreversible. Stage 3 involves surgery.

In 2013, the Full Court of the Family Court reconsidered, in Re Jamie, whether court authorisation was needed to treat children with gender dysphoria. In its judgment, the Court considered the principles developed in Marion’s Case (1992), which had concerned a mentally disabled child. It also considered a 2004 decision, Re Alex, where it was decided that court authorisation for gender dysphoria was required for both Stages 1 and 2 of treatment. It also considered whether persons under 18 were able to consent to their own medical treatment (Gillick competency). Importantly, they departed from the decision in Re Alex, finding that court authorisation for Stage 1 was not required as it is therapeutic and reversible.

Since 2013, there have been calls for further legislative reform. In Re Kelvin (2017), the question for the Full Court was whether court approval should be required for Stage 2 hormone treatment, noting that between 2013 and 2017 it had allowed such treatment in 62 out of 63 cases. In the only case refused, the teenager was almost 18 but there was insufficient evidence to find the child “Gillick competent” to agree to the treatment.

The Full Court departed from the reasoning in Re Jamie, now arguing that if the child consents, the medical practitioners agree the child is competent to give consent to the treatment and the parents have no objection, then it is no longer mandatory to apply to the Family Court for a determination as to whether the child is “Gillick competent”.

The Full Court stated in its judgment that: “The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the court”.

The Court also considered the effect of specific New South Wales legislation but this did not affect the proceedings.

It might be noted that a Gillick competent child has been defined as a

“child who has sufficient maturity and understanding to make a competent decision about the issue. The child will need to understand not only the medical issues involved but also the moral and family questions”.

This refers to an English case in the House of Lords in 1986: Gillick v West Norfolk and Wisbech Area Health Authority. The Australian High Court gave support for the Gillick decision in Marion’s Case.

What does it mean?

In Re Kelvin, the Full Court of the Family Court of Australia has ruled that persons under 18 with gender dysphoria, wanting to have hormone treatment, can potentially now do so without the approval of the Family Court.

The decision has been seen as reducing the stress that the legal system can bring. According to an associate professor at the Royal Children’s Hospital, Melbourne:

“Transgender adolescents will now be able to access the treatment that is best for them, making decisions in collaboration with their parents and their doctors without the delay and the distress that the Court system imposes on them and their families. For these young people the impact of this change is enormous. They will now have timely access to the treatment which provides a positive difference to their physical and mental health, and their social, emotional and educational outcomes.”

Competent transgender adolescents will now be able to make their own informed decision about the administration of Stage 2 hormone treatment in consultation with their doctors and parents.

The Full Court made it clear that parents rather than the Family Court may consent to Stage 2 treatment if their child is not Gillick competent to make a decision, but it is not clear if it would be the same, for example, for a relative or guardian.

This decision brings Australia in line with UN recommendations and recognises the developments in the treatment and understanding of gender dysphoria.

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