Gender Dysphoria: The Family Court's approach to cases relating to transgender children

Family Law: 23 March 2019

Gender Dysphoria is a diagnosis given to persons who have the biological and physical characteristics of one sex, but identify themselves emotionally and mentally as being the opposite sex. People whom have been diagnosed with Gender Dysphoria often report feeling a lack of identification with their biological sex from a very young age. 

Understandably, the onset of puberty for transgender persons can be very difficult, as their body is responding in a fashion that is at odds with their internal identity. It can often cause feelings of extreme distress and emotional turmoil.

There are treatment options for transgendered children. Stage 1 is typically a reversible hormone treatment that supresses pubertal development.

Stage 2 of treatment is a cross hormone treatment, namely the administration of either oestrogen or testosterone to induce male or female puberty (whichever sex the person mentally identifies as). This stage of treatment has irreversible consequences for the individual. There are serious medical consequences that can flow from the treatment including an increased risk of cancer, an elevation in red blood cell count (which can lead to an increased risk of stroke), liver dysfunction and hypertension.

The final stages of treatment can include surgical intervention, including mastectomy, breast reduction or gender reassignment surgery.

It is well established that it is within the scope of parental responsibility for parents to consent to their children undergoing medical treatment and of course, persons over the age of 18 can elect to undergo the above courses of treatment and procedures.

However, what is the process for children under the age of 18 who have been diagnosed with Gender Dysphoria and are desperate to realign their physical appearance with their emotional gender?

In the matter of Re: Jamie (2013) FLC 93-547 the Full Court held that the Stage 2 treatment of children with Gender Dysphoria fell into the category of a "special casethat required the Court's attention. Parents of children with Gender Dysphoria wishing to commence Stage two treatment, would need to apply to the Court pursuant to Section 67ZC of the Family Law Act 1975 (Cth) and seek an order to do so.

The Court must then consider if the child is "Gillick -competent€, meaning, does the child have a clear understanding of the treatment and consequences, and therefore have the capacity to consent to and authorise their own medical treatment? This threshold test was established in the matter of Gillick v West Norfolk A.H.A [1986].

In the recent matter of Re: Jordan [2015] FamCA 175 an application was brought by the parents of Jordan, a 16 year old who was biologically female, however psychologically and emotionally identified as a male. Jordan had been living as a male for some time. He had changed his name on his birth certificate, he wore a boy's uniform to school, most of his friends were males and his friends and family, school teachers and classmates identified him as being a male.

Jordan had received the Stage 1, reversible hormone treatment and had responded well both physically and emotionally and now wished to undergo treatment that would bring on male puberty (i.e. Stage 2).

The Court considered the evidence of Jordan's parents, his treating endocrinologist and his psychiatrist. All were unanimous that Jordan should undergo Stage 2 treatment.

It is interesting to also note, in the matter of Re: Jordan, leave was granted for an Affidavit to be filed by Jordan that expressed his views and opinions in relation to his application for further treatment. Typically, children that are the subject of Family Court proceedings are not permitted to file material, however the Judge in this matter found after considering Jordan's age and level of maturity that it was appropriate for an Affidavit to be filed to allow his views to be properly considered.

The Family Court ultimately ordered that on the basis of the various evidence presented, "The benefits that the procedure and treatment would bring to Jordan's life and the avoidance of drastic detriments identified in the alternatives is determinative that the treatment will meet Jordan's best interests.

The above cases should be of considerable comfort to parents of transgender children. Some parents may hold the view that if they are both in agreement as to the medical treatment of their child that they should be in a position to consent to such treatment occurring, without having to seek an Order from the Court. However, the involvement of the Court provides a mechanism or a system of compliance check, in that the appropriate medical professionals have been consulted, that their advice and recommendations are consistent, and that the parents and child are in agreement that the treatment should be carried out.

It is important to remember that Stage 2 of treatment is irreversible, has serious consequences and should not be entered into without extensive consideration and involvement by experienced medical professionals. The Family Court's overarching consideration of the best interests of the child provides the scope for sensitivity to the needs for the child. In cases of children diagnosed with Gender Dysphoria, the case law has been consistent, in many cases the Court has found that the positive psychological consequences outweigh the risks associated with the treatment.