A legal paper prepared by Belle Lane of Counsel, and delivered to various Judges of the Federal Circuit and Family Court of Australia in April 2023, argues that the Court must reassess its approach in gender dysphoria cases.
The paper documents in forensic detail a lack of clinical consensus on the concept of gender dysphoria, the diagnostic process or even whether a diagnosis is required to begin medical treatment, and the benefits, risks and outcome of the medical pathway.
This article summarises the key points from Ms Lane’s paper.
What is gender dysphoria?
Gender dysphoria is a condition where a person feels that their psychological and emotional identity is at variance with the sex they were assigned at birth.
Currently in such cases, teenagers diagnosed with gender dysphoria no longer require court orders to undergo hormone therapy, if they have the support of both parents and their treating medical practitioners.
The symptoms of gender dysphoria typically become apparent around puberty. In order to diagnose a child with gender dysphoria, a medical practitioner needs to observe at least two symptoms continue for 6 months or more, and cause significant distress to the child. The symptoms (as outlined in the Diagnostic and Statistical Manual of Mental Disorders) include:
- a significant difference between their sexual characteristics and their own experienced gender
- a strong desire to prevent their sexual development or sexual characteristic
- wanting to be treated as a member of the opposite gender
- desiring secondary sexual characteristics of the opposite gender, and
- having a strong belief that their reactions and feelings are those of the opposite gender.
What is the current treatment for gender dysphoria?
There are three stages of treatment:
- Stage 1: where a child is prescribed “puberty blockers” between the age of nine and twelve, which they take for up to four years, and effectively delays puberty.
- Stage 2: where a child is provided with hormone therapy to force their body to develop in accordance with the gender they identify with. This treatment must not be given until the child has acquired enough maturity that they can give informed consent because the treatment has some irreversible outcomes.
- Stage 3: This is typically not available until a child reaches the age of 18 and involves them being able to surgically alter their body.
Current concerns raised
Ms Lane argues in her paper, that our court system should reconsider treating the case of Re Kelvin (2017) as the authority in matters of gender dysphoria in children. In that case, the Court found that when there is no dispute between the child, their parents and their treating doctors, hormone treatment could be prescribed and court approval was not required. This has meant that there is no adversarial testing of the evidence in relation to such cases and they are largely now dealt with in private.
Ms Lane asserts that the Australian standard of care, was based on a “gold standard” Dutch model, which itself was based on a small sample of patients, and has now been critically assessed in several countries.
“There are significant concerns about quality and applicability of the Dutch studies to the current cohort of children presenting at gender clinics… Many of the children have complex mental health, neurodiversity, and adverse childhood experiences. Most of these children would have been excluded under the original Dutch protocol, however now almost all the safeguards of the original Dutch protocols have been removed. Treatment is now based on a child’s subjective identity in child led process, a situation unheard of in other areas of medicine”.
In light of this, Ms Lane argues, the court must reassess how scientific advancements should apply to the family law system. She states “The evidence base around what is called ‘gender-affirming treatment’ has moved rapidly and much more is known about the asserted benefits of the medical pathway and risks.”
If you have any questions in relation to this article, please don’t hesitate to contact a member of our Family & Relationship Law team.
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