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GENDER DYSPHORIA CASES

By Rebecca Tidswell

Medical decision-making for children is a complex area of law, often involving ethical and moral dilemmas stretching over what a parent and/or a court may decide is in the child’s best interests. Children are traditionally excluded from the medical decision-making process. Their parents are often the decision-makers. However, some medical procedures require court authorisation under the Family Courts’ parens patriae (parent of the nation) power. This ‘welfare jurisdiction’ is frequently used to describe the powers of the court pursuant to s67ZC of the Family Law Act 1975 (Cth), which gives the court jurisdiction to make orders relating to the welfare of children.

The authorisation of the court is required when the treatment is deemed a ‘special medical procedure’, normally where it is for non-therapeutic purposes.^[1] However, as children become more mature, they often express their own thoughts, insights and desires about their healthcare. They face many medical and legal obstacles when it comes to seeking some ‘non-therapeutic’ treatments.

GENDER DYSPHORIA

‘Gender dysphoria’ is the medical term used when a person whose gender at birth is contrary to the one they identify with.^[2] The condition was formerly known as Gender Identity Disorder. Treatment for gender dysphoria has been deemed a special medical procedure requiring authorisation by Australian courts.^[3]

EARLY CASES

The first reported case was Re Alex: Hormonal Treatment for Gender Identity Disorder [2004] FamCA 297, which involved a 13-year-old female who identified as male. The child had very clearly expressed his opinions and views about his wish to undergo hormone treatment. Nicholson CJ believed that the treatment fell into the ‘class of treatments’ that a court needs to authorise. He authorised the treatment but found that Alex did not have capacity to consent to the treatment himself.

In Re Alex [2009] FamCA 1292, Alex, now almost 17 years old, sought the court’s permission to undertake a double mastectomy. Again, the court authorised the treatment, but did not specifically consider whether Alex was competent to make this decision himself.

RECENT CASES

The reluctance of the Family Court to recognise medical treatment for gender dysphoria as a treatment which does not require court authorisation has shifted recently.

The court has looked at the specific stages of treatment for gender dysphoria. Standard treatment is split into two stages. Stage 1 involves hormone treatment which is used as a ‘puberty blocker’ to stop the onset of puberty and the hormonal and physical changes associated with it. Stage 2 involves the administration of either testosterone or oestrogen to develop the hormonal and physical changes associated with a particular sex and can include surgical intervention.

In Re Lucy (Gender Dysphoria) [2013] FamCA 518, the court was asked to consider whether authorisation was required for Stage 1 treatment. The court held that it was not a special medical procedure and therefore court authorisation was not required. A nominated, authorised person could consent to treatment on Lucy’s behalf until such time as she reached sufficient age and maturity to be competent to authorise and consent to her own treatment.

Re Jamie [2013] FamCAFC 110 provided a similar outcome. Interestingly, the court noted that as Stage 1 treatment is fully reversible, court authorisation was not required. However, Stage 2 treatment was found to be irreversible and therefore fell within the ambit of Marion’s case^[4] and court authorisation was required.

Re Sam and Terry (Gender Dysphoria) [2013] FamCA 563 involved the applications of two 16 year olds whose parents sought orders to consent to Stage 1 and Stage 2 treatment. The court confirmed the decision in Re Lucy and Re Jamie – that is, that parents can consent to Stage 1 treatment without court authority. Stage 2 treatment was identified as requiring court authority, which was granted as it was in the children’s best interests.

THE VIEWS OF THE CHILD

What happens if a child expresses a clear view about their own medical treatment, as Alex did in Re Alex? The Australian Human Rights Commission has made submissions in a number of cases including Re Jamie. In that case, the Commission submitted that general human rights principles and the Convention on the Rights of the Child provide guidance to the court and that the best interests of the child are the primary consideration.^[5] They went on to say that the children should therefore have input into the decision-making process and that their views should be carefully considered.

The court currently takes a two-step approach. The first step is to consider whether the child has the capacity and competence to consent to treatment. The test for competence in the child comes from Gillick v West Norfolk and Wisbech Area Health Authority.^[6] Commonly known as ‘Gillick competence’, it is when the child has ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.^[7]

If the child is not ‘Gillick competent’, the court goes to the second step, which is to determine whether to authorise the treatment.

The question of whether a child is ‘Gillick competent’ is one that must be determined by the court. In Re Shane (Gender Dysphoria) [2013] FamCA 864, Shane was held to be not ‘Gillick competent’. The opinions of his treating psychiatrist and endocrinologist were obtained in order to assist the court in making this assessment. Similarly, in Re Sam and Terry, the children’s own treating doctors provided opinions on whether they were ‘Gillick competent’ and neither was found to be so.

No child has yet been found to be ‘Gillick competent’ and thus personally able to give legal consent to Stage 2 treatment. However, as the cases described demonstrate, the Family Court has clearly and consistently taken the views of the children into account when it comes to authorising Stage 2 treatment for gender dysphoria. The fact that a child’s parents are now able to consent to Stage 1 treatment without court authority has removed one legal obstacle that was in the way of children seeking treatment for their gender dysphoria. The next hurdle will be for a child to demonstrate that they have ‘Gillick competence’.

Rebecca Tidswell practises medical law and personal injury as an Associate at Carroll & O'Dea Lawyers. PHONE [phone] EMAIL [e-mail].

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^[1] See the High Court decision in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (Marion’s Case).

^[2] Diagnostic and Statistical Manual of Mental Disorders (DSM-V), American Psychiatric Association, 5^th edn, 2013.

^[3] Re Alex: Hormonal Treatment for Gender Identity Disorder [2004] FamCA 297, Re Rosie (Special Medical Procedure) [2011] FamCA 63 and Re O (Special Medical Procedure) [2010] FamCA 1153.

^[4] See above n1.

^[5] Article 3(1) of the Convention on the Rights of the Child.

^[6] [1985] UKHL 7; [1986] AC 112.

^[7] Ibid at [189].