Gender dysphoria in children – who can consent to treatment?

In this article, Partner, Alison Ross outlines the current treatment for children and adolescents with gender dysphoria and circumstances where a court order is necessary.

Gender dysphoria refers to a diagnosis arising from distress experienced by a person due to “incongruence between their gender identity and their gender assigned at birth”. Over the last decade, medical experts have seen an “exponential rise in adolescent referral to gender clinics”. This has presented Australian courts with the opportunity to develop a body of case law regarding how parents, multi-disciplinary specialist medical teams and members of the judiciary approach the unique issues faced by adolescents and their families in these circumstances. 

In recent years, there has been a necessary and significant shift in case law, intended to delicately balance medical advancements, protecting the interests of vulnerable adolescents and, where possible, alleviating the financial and emotional cost associated with applications to the courts. 

The current and historic course adopted by the court in these matters depends on the form of treatment contemplated for gender dysphoria; namely, whether it is:

• Stage one treatment, which involves administration of hormone blocking treatments intended to stall puberty. Hormone bocking treatments are most effectively used at the onset of puberty, and the effects are generally reversible when used for a limited time. It is intended to afford the child time to mature emotionally and intellectually before any further treatment is undertaken, while stalling development of gender-specific traits which can cause significant distress; or
• Stage two treatment, being irreversible gender affirming hormone treatment, involving the use of either oestrogen to feminise the body or testosterone to masculinise the body. 

Recognising that this is an issue which can impact an adolescent’s physical health, mental wellbeing and quality of life, Australian courts have sought to recognise and give due weight to an adolescent’s ability to consent to medical treatment. This includes assessing whether the subject child possesses a sufficient degree of maturity and intelligence which enables them to fully understand the nature and implications of the treatment, often referred to as “Gillick competence”, adopting the name from a United Kingdom House of Lords decision in which the concept was established.

Is a court order necessary to commence treatment?

Stage one treatment

The Full Court of the Family Court of Australia’s 2013 decision in the case of Re Jamie held that no application to a court for stage one treatment is necessary if:

1. there is agreement between the parents and the child’s treating medical practitioners that the child is Gillick competent; or
2. if there is uncertainty as to whether the child possesses the requisite insight, knowledge and maturity to meet the threshold of Gillick competency, the parents can consent to the treatment on behalf of the child; and
3. the child’s parents and medical practitioners are in agreement regarding the proposed course of treatment.

Stage two treatment

The case of Re Jamie initially imposed separate requirements for stage one and stage two treatment, such that stage two treatment had to be approved by a court irrespective of unanimous agreement between all relevant persons. It was held that a parent could not provide consent on behalf of their child due to the irreversible nature of stage two treatment, which was said to carry a greater risk of the “wrong decision” being made. The result was that accessibility by a person under the age of 18 to stage two treatment first required a court order – a stressful, time-consuming, costly and, arguably, overtly onerous process for both the child and their family.

This position was reversed in the landmark 2017 decision of Re Kelvin, where the Full Court determined that advancements in medical knowledge saw stage two treatment brought back within the ambit of parental authority. Re Kelvin established the same approach for stage one and stage two treatment in considering whether consent accompanied by medical recommendations was sufficient, or if an application to a court was first necessary.

What happens if there is a dispute?

Notwithstanding the decision in Re Kelvin, alleviating the need for applications to a court when it was undisputed that stage one or stage two treatment was appropriate, a court retains an important function in determining matters: 

1. if there is a dispute about whether a child is Gillick competent;  
2. where a child is not Gillick competent and the consent of both parents is not provided;
3. if there is a dispute about the diagnosis of gender dysphoria; or 
4. if there is a dispute about the proposed course of treatment.

Disputes regarding any combination of the above issues are generally determined by the Family Court of Australia, exercising jurisdiction under section 67ZC of the Family Law Act 1975. In determining any such application, the judge must consider whether, on the evidence before the court, an order to proceed with the proposed course of treatment is in the best interests of the child. 

While these decisions are generally reserved for the Family Court of Australia, a recent successful application to the Supreme Court of Queensland for approval of urgent stage one treatment may see a rise in state courts being tasked with these decisions. In the December 2020 case of Re a Declaration Regarding Medical Treatment for “A”, Lyons SJA granted an application for a child who was soon to turn 13 to commence stage one puberty blocking treatment, in circumstances where the child’s estranged father could not be located to provide his consent. The urgency in this matter stemmed from the likely significant impact on the child’s mental health if the impending onset of male puberty was not stalled. 

However, her Honour specified that any future proposals for stage two treatment (which do not carry the same circumstances of urgency) would most appropriately be determined by the Family Court of Australia, given its expertise in matters of this nature. Nevertheless, the decision may serve as additional reassurance that a timely resolution of matters involving the question of stage one treatment can be achieved. 

If you have any queries regarding whether an application to the court is necessary for stage one or stage two treatment, our Family and Relationship Law team are well placed to consider the individual circumstances of your matter, provide detailed advice and work collabouratively with medical professionals to assist you, and your family, in navigating these issues.