Amity Anderson, Legal Partner
In a recent landmark decision of Re: Kelvin, the Full Court of the Family Court has ruled that young Australians seeking treatment for gender transition will no longer have to seek Court approval to receive hormone treatment.
In considering the case of a 17 year old transgender male, Kelvin (a Court-appointed pseudonym), the Court found in favor of abolishing the legal requirement of Court approval for ‘stage-two’ treatment involving cross-sex hormone replacement therapy (HRT). The Family Court will no longer play a role in the decision-making process, provided that the child, their parents and associated medical experts are in agreement to the HRT procedure.
This decision represents a significant shift in Australian family law and removes a major barrier previously faced by many young transgender people and their families. Until now, Australia was the only country that required people under the age of 18 to seek permission to undergo HRT from the Court, a process which is extremely costly, timely and stressful to all parties involved. Many teenagers with gender dysphoria were unable to access HRT treatment as they were unable to afford the the legal fees associated with receiving court consent (ranging from $8,000 to $30,000).
Stage-two treatment involves the administration of estrogen to feminise the body or testosterone to masculine the body, with irreversible effects. If the cross-sex HRT treatment is not introduced at a younger age, there can be irreversible physical changes to the teenager’s biological sex during puberty which can have dire repercussions on their later ability to transition to the opposite sex, often requiring otherwise avoidable surgical intervention.
Since 2013, there has been a dramatic increase in parent’s seeking Family Court approval for their teenagers to undergo cross-sex HRT treatments. Between July 2013 and August 2017, the Family Court allowed stage-two HRT treatment for children with gender dysphoria in 62 out of 63 cases. The Family Court has shown a willingness to allow HRT treatment where all parties involved have consented, with the only refusal made due to insufficient evidence supporting the child’s competency to agree to the treatment.
Now, after the case of Re: Kelvin, teenagers with gender dysphoria and their parents will be able to make decisions concerning HRT treatment in consultation with an experienced healthcare team, without the need for Court intervention. This decision is a step in improving the human rights of transgender teens and bringing Australia into line with international protocols and UN recommendations.
The case of Re: Kelvin
Kelvin was born as a female and diagnosed as having gender dysphoria by the age of nine. He brought an application seeking stage-two HRT treatment at the age of 17 with the support of his parents and medical practitioners. The Family Court had previously decided that Kelvin was ‘Gillick competent’ (the threshold test as to whether a child can consent to their own medical treatment) and fully understood the implications of consenting to the administration of testosterone in making him more masculine.
The Full Court then needed to consider a series of questions established in an earlier precedent Re: Jamie that set a requirement for Court approval for HRT Treatment. They unanimously departed from the previous ruling and found that Court authorisation was no longer needed for stage-two treatment of a child with gender dysphoria where:
- The child consents to the treatment;
- The treating medical practitioners agree that the child is ‘Gillick competent’ to give that consent; and
- The parents of the child do not object to the treatment.
The majority stated 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”. In reaching their decision, the Court acknowledged the historical positive outcomes of similar cases and the costs and delay associated with obtaining Court approval.
The Court found that the consequences and risks of the irreversible HRT treatment did not outweigh the therapeutic benefits of the treatment for the child. The majority accepted the “increased knowledge of the risks associated with not treating a young person who has gender dysphoria”, such as anxiety, depression, self-harm and attempted suicide.
The Court recognised that the HRT treatment would “allow Kelvin to continue to develop his self-esteem, the confidence in his body and appearance and to consequently develop the congruence necessary for a healthy future outlook. If stage 2 treatment was not carried out his overall health and wellbeing is almost certain to deteriorate especially as his mental and physical health is heavily dependent on the perception of himself as male.”
This milestone judgement serves to highlight the changing approach by the Family Court to issues such as gender dysphoria and reinforces the importance of parent autonomy in making medical decisions in the best interests of their child. Stage-two hormonal treatment is no longer outside the bounds of parental authority and if the child, their parents and their experienced medical team agree to the necessity of the treatment, then the Court can no longer interfere.