Family Court consent no longer required for treatment of Gender Dysphoria in Children

By Anya Aidman

In the judgment of Re Kelvin delivered in November 2017, the Full Court of the Family Court held that it was no longer necessary to apply to the Family Court for a determination of whether a child is ‘Gillick’ competent where Stage 2 treatment of a child for Gender Dysphoria is proposed if:

  • 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.

‘Gender dysphoria’ is a formal diagnosis used by clinicians with respect to children who express a sustained period of discontent regarding their biological sex, assigned gender or both. For a child experiencing Gender Dysphoria, he or she may feel more comfortable dressing as the opposite gender or having a different pronoun used by their parents, friends and school. For the children with Gender Dysphoria and are lucky enough to have the support and understanding of their parents or carers, eventually a child and their support team may seek medical assistance with respect to bringing into line their physical characteristics with their experienced gender identity.

There are 3 stages of medical involvement that can be engaged, as follows:

  1. Stage one treatment involved certain hormone blocking drugs known as ‘puberty blockers’ which can delay development of certain secondary sexual characteristics. Stage one treatments are generally reversible or could be discontinued without significant long term effect on a child.
  2. Stage two treatment involves the administration of testosterone or estrogen to a child which can significantly alter their physical development. Stage two treatment is not reversible and may not be able to be discontinued without some long term effects on the child, depending on the volume and duration of treatment administered.
  3. Stage three treatment involves surgical intervention such as removal of breasts or the creation or augmentation of sexual organs.

The above treatments have the potential to have a serious and far reaching impact on a child’s life. They are not, in our experience, undertaken lightly by children, their parents, or their medical practitioners. It was confirmed by the Courts in 2003 that the Court’s consent was not required for Stage 1 treatment. However, an Application to the Court was required for Stage 2 and Stage 3 treatment until November 2017.

The November 2017 Family Court ruling means that an application to the Court to determine whether the child was capable of giving informed consent (known as a finding about ‘Gillick competence’) no longer needs to be brought for Stage 2 treatment if the other conditions mentioned above are met.

When children and their supporting loved ones are faced with important decisions such as Gender Dysphoria treatment and transition it is important that you obtain comprehensive medical and legal advice.

If you want to discuss your matter further you can contact Anya Aidman, one of our experienced family law solicitors.

e: aaidman@elringtons.com.au | p: 02 6206 1300