By Kristina Antoniades (Special Counsel)
The Family Court has handed down a landmark decision regarding treatment of children who are diagnosed with gender dysphoria.
What is “gender dysphoria”?
“Gender dysphoria” is the discomfort experienced by people whose sense of self differs to the gender they are assigned at birth (for example, a person born as female feels themselves to be male). For these people, the difference between how they identify from a gender perspective and the physical characteristics they were born with can be highly distressing.
Those with gender dysmorphia are often referred to as ‘transgender’ or ‘gender diverse’ and may seek medical assistance to change their gender.
What did the Court rule?
Children who have gender dysphoria no longer require the Court’s approval for Stage 3 treatment if they are deemed to be Gillick competent (and other conditions are also met).
Prior to this case, parents of children with gender dysphoria were required to apply to the Family Court for a determination that their child was Gillick competent – that is, they were able to consent to the proposed medical procedure, even if their treating medical practitioners had determined their competence.
What is Gillick competence?
The English case of Gillick determined that “…parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her mind…” This principle has been approved and applied by the Family Court of Australia since 1992 in the case of re: Marion.
If a child is found to be Gillick competent, they are able to consent to the medical procedure. The consent of their parents is not required, and nor must an order be obtained from the Court.
However, up until this case was decided, Gillick competence was only sufficient for Stage 1 treatment (hormone blockers) and Stage 2 treatment (being gender affirming hormone treatment – that is, the use of either oestrogen to the feminise the body or the use of testosterone to masculinise the body), both of which do not involve surgical intervention.
The Court found that due to both of these treatments being reversible, its approval was not required if the child was Gillick competent.
What is stage 3 treatment?
Stage 3 treatment for gender dysphoria includes (but is not limited to) chest reconstructive surgery; phalloplasty (construction or reconstruction of a penis), hysterectomy (surgical removal of the uterus), bilateral salpingectomy (removal of both ovaries and fallopian tubes), creation of the neovagina (the creation of a new vagina surgically which his created from the skin of the penis), and vaginaplasty (construction or reconstruction of the vagina).
Any child under the age of 18 years was previously required to seek Court approval for Stage 3 procedures.
What does this mean?
The Court found that subject to:
- the treatment being determined as therapeutic;
- there being no conflict between the parents or medical professionals as to the proposed treatment; and
- the treating practitioners determining the child to be Gillick competent,
that a Court order is no longer required for a child under the age of 18 years to access Stage 3 medical treatment for gender dysphoria.
This is such an important decision as it removes the stress and expense of legal proceedings to determine Gillick competence, when this has already been determined by the child’s treating medical practitioners and avoids delay to medical treatment being provided to those children.