By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
Navigating the legal landscape surrounding parental disputes over the medical treatment of transgender children can be complex and challenging. In Australia, several landmark cases have shaped the framework within which these sensitive and important decisions are made. Understanding these cases can help parents, guardians, and legal practitioners better comprehend the requirements and implications of seeking medical treatment for gender dysphoria in minors. Below, we explore the key considerations for parents and caregivers that find themselves grappling with the legislative framework surround these issues.
What kind of treatment are we talking about?
The courts usually classify gender-affirming medical treatments for transgender individuals into three stages:
- Stage 1: This involves using puberty blockers, which are generally reversible.
- Stage 2: This involves taking hormones like oestrogen or testosterone, which have effects that are usually irreversible without surgery.
- Stage 3: This includes surgical procedures, usually limited to mastectomies for those under 18.
Can my child make these decisions?
In Australia, the concept of Gillick competence, which originates from a UK case plays a key role in assessing whether a child can consent to medical treatment. Under this principle, if a minor is mature enough and has sufficient understanding and intelligence to make informed decisions about their healthcare, they can consent to treatment without needing parental approval. This standard is often applied in decisions regarding transgender care for minors.
However, in situations where parents disagree about whether gender-affirming treatment is in the child’s best interest, the medical practitioner should not proceed until the parents reach an agreement or the court grants authorisation. It is essential for the medical practitioner to ensure that all individuals with parental responsibility consent to the proposed treatment.
What are some examples of what the Courts have decided before?
1. Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 Fam LR 503; [2004] FamCA 297
Summary: The Court determined that medical treatment for gender dysphoria in minors, including hormone therapy, was a “special medical procedure” and therefore required court approval. This case established that such decisions should involve judicial oversight to ensure the child’s best interests were protected.
Takeaway: Court approval is required for minors to receive medical treatment for gender dysphoria.
2. Re Jamie (Special Medical Procedure) (2013) 50 Fam LR 369; [2013] FamCAFC 110
Summary: The Court decided that stage one treatment (puberty blockers) did not require court approval if there was no dispute between the parents and medical practitioners. However, stage two treatment (hormone therapy) still required court authorisation. This distinction recognised the reversible nature of puberty blockers compared to the more permanent effects of hormone therapy.
Takeaway: Court approval is not required for stage one treatment (puberty blockers) if there is no dispute, but it is required for stage two treatment (hormone therapy).
3. Re Kelvin (2017) 54 Fam LR 576; [2017] FamCAFC 258
Summary: The Full Court of the Family Court ruled that court approval was no longer necessary for stage two treatment if the child, parents, and medical practitioners were in agreement. This decision acknowledged the medical community’s consensus on the appropriateness of gender-affirming treatment for minors and reduced the legal hurdles for accessing such treatment.
Takeaway: Court approval is not required for stage two treatment (hormone therapy) if there is agreement among the child, parents, and medical practitioners.
4. Re Imogen (No. 6) [2020] FamCA 761
Summary: The Court held that in cases where there is a dispute between parents over a child’s access to gender-affirming treatment, court authorisation is required for both stage one and stage two treatments. This case highlighted the necessity of judicial oversight in situations of parental disagreement to ensure the child’s welfare is adequately considered.
Takeaway: Court authorisation is required for both stage one and stage two treatments in cases of parental disagreement.
Steps for Parents in Disagreement
If parents disagree about treatment for a gender-questioning or gender-exploring child, the following steps should be taken:
- Seek Medical Advice: Consult with medical professionals who specialise in gender dysphoria and gender-affirming care for children.
- Try Mediation: Attempt to resolve the disagreement through mediation or counselling, which might help both parents understand the medical and psychological needs of their child.
- Court Authorisation: If the disagreement persists, either parent can apply to the Court for authorisation. The court will then decide whether the proposed treatment is in the best interests of the child.
- Legal Representation: It is advisable for parents to seek legal representation to navigate the court process and ensure their views and the child’s best interests are adequately represented.
These steps ensure that the child’s welfare is prioritised and that any medical decisions made are in their best interests, especially when parents cannot come to an agreement on their own. Understanding the legal precedents and the necessary steps can provide clarity and direction for families navigating these difficult and sensitive issues.
If you require advice about navigating disputes surrounding your child’s medical treatment, please book a confidential consultation with one of our experienced family lawyers today.
