Gender Dysphoria and Family Law

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. When a person has gender dysphoria they often feel distress that there is a disconnect between their biological sex and their gender identity. This can lead to depression, anxiety, self-harm behaviours and attempted suicide. Gender dysphoria can become a family law matter when a young person is seeking permission to undergo treatment.

Diagnosis of Gender Dysphoria

The symptoms of gender dysphoria manifest at developmental stages, intensifying during puberty. For a person to receive medical treatment, a diagnosing physician must observe at least two symptoms that continue for six months or more and which cause significant distress to the individual. The symptoms, which are outlined in the Diagnostic and Statistical Manual of Mental Disorders, are:

• A significant difference between their secondary sexual characteristics and their own experienced gender.
• A strong desire to prevent their sexual development or get rid of their sexual characteristics.
• Desiring secondary sexual characteristics of the other sex.
• Wanting to be treated as a member of the opposite gender.
• Having a strong belief that their reactions and feelings are those of the opposite sex.

Treatment for gender dysphoria

There are therapies that have been proven to improve the social and psychological wellbeing of people with gender dysphoria. There are three stages of treatment available for children who are experiencing gender dysphoria:

Stage 1 treatment

This is where a child is prescribed “puberty blockers” between the age of nine and twelve, which they take for up to four years, preventing them from going through puberty as their biological sex. This treatment is designed to reduce the distress that a child feels as they develop physically. Delaying puberty allows a child a chance to develop cognitively and emotionally so that they can give informed consent to further stages of treatment.

Stage 2 treatment

This is where the child is provided with hormone therapy to force their body to develop in accordance with the gender they identify with. It involves the prescription of either testosterone to masculinise the body or oestrogen to feminise the body. 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 treatment

The next stage of treatment is generally not available until the child reaches the age of eighteen when they can surgically alter their body, with processes such as chest reconstructive surgery, hysterectomy and phalloplasty. It is often not necessary to perform certain surgical interventions if the child received stage two treatment to stop biological development.

Gender Dysphoria and the Law in Australia

The Family Law Act 1975 authorises the courts to make orders relating to the welfare of children. The best interests of the child are the chief consideration for the court in cases related to non-emergency medical intervention. Prior to 2017, Australia was the only country where transgender adolescents had to seek judicial permission to start Stage Two treatment for dysphoria. In 2004, the Family Court established in Re Alex: Treatment of Gender Identity Dysphoria that treatment for the condition now known as gender dysphoria is non-therapeutic and outside the boundaries of parental consent. The court found that Stage One and Two treatments were “special medical procedures” that required court approval, regardless of the wishes of the child or their parents. In Re Alex the court did give approval for the medical treatment but it also set a precedent that would take years to overturn.

There was a shift in judicial attitudes by the time Re Lucy (Gender Dysphoria) was heard in 2013. In that case, the court held that gender dysphoria treatment is therapeutic because it improves a psychiatric disorder, and that court approval is not necessary for Stage One treatment. This was reaffirmed by Re Sam and Terry (Gender Dysphoria) and Re Jamie where the attitude of the court was that there was little risk to the child as Stage One treatment is reversible and carries a minimal risk of misdiagnosis. It did reaffirm that Stage Two treatment was only available to transgender adolescents that the court felt reached a ‘Gillick’ level of competency. The Gillick test is designed to reveal whether a child is legally capable of consenting to medical treatment, without parental knowledge or consent.

In 2017 the Family Court ruled that teenagers with gender dysphoria no longer have to ask a judge for permission to undergo hormone therapy if they have permission from their doctors and their parents.

Re Kelvin

In 2017, a father applied to the Family Court in re Kelvin to allow his child to progress his treatment for gender dysphoria to Stage Two. Kelvin had been born female but had been diagnosed with gender dysphoria after identifying as male from age nine. Kelvin’s father filed affidavits with the court from an endocrinologist, a psychiatrist and a psychologist supporting the application for the child to progress to the second stage of treatment. The court considered whether in this case, the Gilick competence test was even necessary, as all parties, including the parents of the child and his doctors agreed that Kelvin should start the next stage of his treatment.

The court found that it was not necessary to make an order in this case. In fact, they ruled that previous case law had been decided based on over-caution over the potential health repercussions of new medical treatments. As there is now broader understanding of gender dysphoria and treatment options, the court ruled that the decision to allow treatment is no longer outside the purview of ordinary parenting authority and the court need not intervene in such cases anymore.

The decision in Kelvin is a defining moment in gender and family law. It brings Australian law in line with the prevailing attitudes of the medical community and has been welcomed by children and transgender advocates as a step that will have a significant and positive impact on the lives of young transgender people. If you have a child with gender dysphoria, Armstrong Legal can advise you about their legal rights in Australia. Please call 1300 038 223 or send us an email to make an appointment with one of our friendly, professional family lawyers.