By Holly Pitt, Senior Associate and Nationally Accredited Mediator (NMAS)
The legal complexities surrounding parental disputes over the medical treatment of transgender children in Australia are profound and multifaceted. Several landmark cases have shaped the landscape, providing essential guidance for parents, guardians, and legal practitioners on the requirements and implications of seeking medical treatment for minors with gender dysphoria.
This article delves into the critical considerations for families navigating these legal challenges.
Types of Gender-Affirming Treatments
The courts typically categorise gender-affirming medical treatments into three stages:
- Stage 1: Puberty blockers, which are mostly reversible.
- Stage 2: Hormone treatments, such as oestrogen or testosterone, which have largely irreversible effects without surgical intervention.
- Stage 3: Surgical procedures, usually limited to mastectomies for those under 18.
Decision-Making Authority of Minors
In Australia, the concept of Gillick competence, originating from a UK case, is pivotal in determining whether a minor can consent to medical treatment. If a child demonstrates sufficient maturity and understanding to make informed decisions about their healthcare, they may consent to treatment without parental approval. This standard is frequently applied to decisions regarding transgender care for minors.
However, when parents disagree on whether gender-affirming treatment is in the child’s best interest, medical practitioners must wait until an agreement is reached or court authorisation is obtained. It’s crucial for medical practitioners to ensure all individuals with parental responsibility consent to the proposed treatment.
Notable Court Decisions
Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) 31 Fam LR 503; [2004] FamCA 297
Summary: The court ruled that medical treatment for gender dysphoria in minors, including hormone therapy, is a “special medical procedure” requiring court approval to protect the child’s best interests.
Takeaway: Court approval is necessary for minors to receive medical treatment for gender dysphoria.
Re Jamie (Special Medical Procedure) (2013) 50 Fam LR 369; [2013] FamCAFC 110
Summary: The court decided that stage one treatment (puberty blockers) does not require court approval if there is no dispute between the parents and medical practitioners. However, stage two treatment (hormone therapy) still requires court authorisation.
Takeaway: Court approval is not needed for stage one treatment if undisputed but is required for stage two treatment.
Re Kelvin (2017) 54 Fam LR 576; [2017] FamCAFC 258
Summary: The Full Court of the Family Court ruled that court approval is no longer necessary for stage two treatment if the child, parents, and medical practitioners are in agreement.
Takeaway: Court approval is not required for stage two treatment if there is consensus among the child, parents, and medical practitioners.
Re Imogen (No. 6) [2020] FamCA 761
Summary: The court held that in cases of parental dispute, court authorisation is required for both stage one and stage two treatments.
Takeaway: Court authorisation is necessary for both stages of treatment in cases of parental disagreement.
Steps for Disagreeing Parents
If parents disagree about their child’s treatment, the following steps are recommended:
- Seek Medical Advice: Consult with medical professionals specializing in gender dysphoria and gender-affirming care.
- Try Mediation: Attempt to resolve disagreements through mediation or counselling.
- Court Authorisation: If the disagreement persists, either parent can apply to the court for authorisation. The court will decide if the proposed treatment is in the child’s best interest.
- Legal Representation: Parents should seek legal representation to navigate the court process and ensure the child’s best interests are represented.
These steps help prioritise the child’s welfare, ensuring that medical decisions made are in their best interests. Understanding the legal precedents and the necessary steps provides clarity and direction for families facing these sensitive issues.
For personalised advice on navigating disputes regarding your child’s medical treatment, book a confidential consultation with one of our experienced family lawyers today.
