Transgender Children and the Family Court

Children with gender dysphoria have a persistent and profound discomfort with their biological gender and a strong identification with the gender of the opposite sex.

For a child to be diagnosed with gender dysphoria, there must be a marked incongruence between one’s experienced or expressed gender and birth gender, of at least six months duration. The diagnosis must also be associated with significant distress or impairment in social, school, occupational or other important areas of the child’s functioning.

In Australia, the medical procedure to re-assign a child’s gender must not be undertaken without the approval of the Family Court. This is because a child does not have the capacity at law to consent to a life changing medical procedure.

In coming to its decision the Court is guided by what is known as the Gillick competency test set by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986].

The Gillick test concerns whether a child is able to consent to a medical procedure without parental permission. In all cases this will require evidence of a child’s maturity and ability to understand the effect of the procedure. The Court will specifically explore and determine the child’s ability to make an informed and considered decision regarding the medical procedure

Stages of Gender Re-assignment

There are two stages two gender re-assignment.

Stage 1: The Suppression of Puberty

  • Stage 1 is therapeutic in nature, with medication and psychological support and no invasive surgery involved.Stage 1 does not usually require Court authorisation. Stage 1 includes:
    – administration of hormones such as gonadotropin-releasing hormone analogues, to prevent the onset of puberty in the child’s biological sex; and
    – Psychological support.
  • For a child to be eligible to start Stage 1, the child must be assessed by at least 5 doctors, including a psychiatrist, an adolescent physician and an endocrinologist. During this process a detailed history is taken from the child’s family.
  • Stage 1 is fully reversible, as puberty in the child’s biological sex will continue if Stage 1 is stopped.
  • Stage 1 is not considered a medical procedure or process which falls within the class of cases which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Family Law Act 1975 (Cth) and therefore does not require Court authorisation, unless:
    – the child is subject to a guardianship order; or,
    – there is disagreement between the child, the child’s parents or the child’s doctors (or any of them) as to starting Stage 1 or the form Stage 1 should take.

Stage 2: The Administration of Testosterone or Oestrogen

  • Stage 2 has irreversible features and usually only occurs once a child reaches the age of 16 years: Stage 2 includes:
    – for biological females re-assigning to males, the administration of testosterone and the irreversible features include: hair growth, voice deepening and muscle growth. There is also a risk of impaired liver function, polycystic ovaries and ovarian cancer; and,
    – for biological males re-assigning to females, the administration of oestrogen and the irreversible features include: breast development, testicular shrinkage and growth height maturation. There is also a risk of impaired liver function and thromboembolism.
  • As Stage 2 has irreversible features, it must not proceed without the Family Court either determining that: the child is Gillick competent; or, proceeding with Stage 2 is in the best interests of the child.

The Family Court’s position at the end of 2015

Court authorisation for Stage 2 of non-Gillick competent children and young people is required:

  • when the procedure is invasive, permanent and irreversible;
  • when the procedure is not for the purpose of curing a malfunction or disease;
  • where there is a significant risk of making a wrong decision; and
  • where the consequences of a wrong decision would be particularly grave.

When deciding whether or not to authorise Stage 2, the principle of proportionality should be invoked, such that the benefit of the proposed procedure should be weighed against the risk of making the wrong decision and the consequences of that decision.

The wishes of the child should be given considerable weight in deciding whether or not to authorise Stage 2, and on what conditions, commensurate with the child’s age and maturity.

The future of gender re-assignment surgery

Parents of children who are seeking Stage 2 approval have expressed concern over the cost and lengthy delays involved in accessing the Court system. The delays in the Court system have the potential to threaten the time sensitive process.

The Family Court has acknowledged these delays within the system and has started work on a new special application form that aims to fast track applicants.

How can we help?

If your child has expressed a desire to undergo gender re-assignment, and you are fully supportive of same, we can assist you make an Application to the Family Court to gain approval for Stage 1 (if needed) and Stage 2 of the gender re-assignment procedure.

We also can assist you prepare an Initiating Application seeking approval for Stage 1 and/or Stage 2. We can draft Affidavits in support of your Application, setting out your evidence and the evidence of expert witnesses including your child’s treating medical practitioner and psychologist.

In the event that you do not consent to the procedure and do not believe that gender re-assignment surgery is in the best interests of your child, we can help prepare your Court documents and represent you at Court to contest your child commencing any gender re-assignment procedures.

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