McAllister, Greg --- "Gender dysphoria in Australia: The judicial response in Re Kelvin" [2018] PrecedentAULA 25; (2018) 145 Precedent 40

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GENDER DYSPHORIA IN AUSTRALIA

THE JUDICIAL RESPONSE IN RE KELVIN

By Greg McAllister

In the recent case of Re Kelvin^[1] (Kelvin), the Full Family Court of Australia was again required to consider what role the courts should have in deciding whether minors with gender dysphoria can commence hormone therapy. In what has been described as a landmark case, adolescents will no longer be required to obtain court approval to undergo treatment where they have the permission of their parents and treating doctors.

To understand the decision in Kelvin and the implications of the judgment for those with gender dysphoria, it is helpful to know Kelvin^[2] and to have an understanding of gender dysphoria and the legal framework for treatment that existed prior to the decision.

KELVIN’S STORY

Kelvin was born with female genitalia at birth. Kelvin identified with transgender concepts at age 9, and by the age of 13 began to identify publicly as male. Since 2015, Kelvin has attended a suite of medical practitioners and counsellors and was ultimately diagnosed with gender dysphoria. Kelvin’s transition had the support of both his parents, with his father filing the initiating application on 25 January 2017.^[3]

At the time of filing the initiating application, Kelvin had not undergone stage 1 treatment and was experiencing female puberty. This, as well as Kelvin’s history of struggles with identity and ultimately gender dysphoria, resulted in him living with anxiety and depression and had led to self-harm. The initiating application sought to allow Kevin access to stage 2 treatment with the support of Kelvin’s treating doctors.^[4]

It was submitted that Kelvin’s overall health and wellbeing would deteriorate if access to stage 2 treatment was denied. Without treatment, Kelvin would continue to experience social isolation and frustration, and ongoing disgust with his body. These were noted as triggers for suicide attempts.^[5]

TRANSGENDER AND GENDER DYSPHORIA

‘Transgender’ is a term that applies to individuals whose gender identity, either transiently or persistently, does not match their biological sex at birth. A person who identifies as transgender is not necessarily gender dysphoric although all people with gender dysphoria are transgender. Gender dysphoria is a medical condition where a child does not identify with their biological sex. A child with gender dysphoria will feel and express a strong desire to be the opposite gender than that to which they were born and will experience uneasiness and frustration in connection with their gender identity.

Diagnosis of gender dysphoria

Diagnosis of gender dysphoria is governed by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5),^[6] with gender dysphoria having replaced ‘gender identity disorder’ as the diagnostic term from earlier editions. This in itself has been hailed by advocates of transgender rights as a turning point for all persons experiencing gender issues, as the former definition incorrectly characterised all transgender people as mentally ill.

Symptoms of gender dysphoria manifest at different developmental stages, but intensify during puberty. To make a diagnosis of gender dysphoria in adolescent or adult patients, the person must exhibit at least two of the following criteria for at least a six-month period, and it must cause them significant distress:

• a significant difference between their own experienced gender and their secondary sexual characteristics;

• a strong desire to be rid of their secondary sexual characteristics or prevent their development;

• wanting secondary sexual characteristics of the opposite gender;

• wanting to be treated as the other gender; and/or

• a strong belief that they have the feelings/reactions of the opposite gender.^[7]

Management of gender dysphoria

Research suggests that due to the mismatch between a child’s biological sex and their perceived identity with the sex they identify with,^[8] it is common for people with gender dysphoria to have psychological symptoms, including anxiety and depression. Studies suggest that when gender dysphoria intensifies with the onset of puberty, it seldom subsides.^[9]

Treatment for gender dysphoria involves two stages of hormonal therapy, accompanied by psychological treatment. Stage 1 treatment involves the provision of medication to prevent the onset of puberty in the child's biological sex. Stage 1 treatment is reversible. Stage 1 treatment may be commenced by children between the ages of 10 and 13. Stage 2 treatment comprises hormone treatment to encourage the development of physical characteristics in the sex with which the child identifies. Stage 2 treatment is considered to be irreversible. Stage 2 treatment is generally available once a person has reached approximately 16 years of age.

In conjunction with stage 1 and stage 2 treatment, some adolescents with gender dysphoria may undergo a mastectomy (also referred to as ‘top surgery’). A person may undergo gender reassignment surgery once they reach 18 years of age. Gender reassignment surgery will not be considered for a person under 18 years of age. Top surgery and gender reassignment surgery are sometimes referred to as stage 3 treatment. It has been suggested that early treatment for gender dysphoria optimises psychological and social development.^[10]

GENDER DYSPHORIA IN CHILDREN AND ADOLESCENTS: JURISPRUDENCE IN AUSTRALIA

In 2004, the Family Court of Australia in the case of Re Alex: Treatment of Gender Identity Dysphoria (Re Alex)^[11] determined that treatment for gender identity disorder (as it was known then) was non-therapeutic and fell outside the boundaries of parental consent. Specifically, the Court held that both stage 1 and 2 treatments were ‘special medical procedures’ that, despite the desires of the person to undergo the treatment or the permission of parents or legal guardians and support of treating medical practitioners, required court approval before they could be undertaken.^[12] In 2009, Re Alex was again before the Family Court of Australia. On that occasion, the Court found that it was in Alex’s best interests to have a double mastectomy and approved the surgery.

In 2013, in Re Lucy (Gender Dysphoria),^[13] the Family Court of Australia held that ‘treatment for gender dysphoria is therapeutic treatment because it is administered primarily to ameliorate a psychiatric disorder’,^[14] a marked shift from how the treatment was classified in Re Alex. The Court held that its approval was not required for stage 1 treatment.

Shortly after the judgment was delivered in the case of Re Lucy, the Family Court of Australia echoed that judgment in Re Sam and Terry (Gender Dysphoria).^[15] In Re Sam and Terry, the Court held that court approval was not required for stage 1 treatment and that parental consent was sufficient. However, court approval would be required for stage 2 treatment.

In 2013, in the case of Re Jamie,^[16] the Full Family Court of Australia affirmed the position adopted in Re Lucy that parents are permitted to consent to stage 1 treatment for gender dysphoria, while court approval is required for stage 2 treatment. While the Full Court appeared to accept that both stage 1 and stage 2 treatment could be characterised as ‘therapeutic’, a key consideration in the Court’s distinction between the approval process for stage 1 and stage 2 treatment was its view that stage 1 treatment carried a low risk of error from misdiagnosis, and that the consequences for the child were ‘ameliorated or alleviated’ in circumstances where stage 1 treatment is reversible.^[17] In contrast, the Court formed the view that there would be irreversible effects and significant risks to a child if a wrong decision was made in relation to stage 2 treatment.

Importantly, the Court held that a ‘Gillick competent’ minor can consent to stage 2 treatment. The test to determine whether a child has the capacity and competence to consent to treatment comes from Gillick v West Norfolk and Wisbech Area Health Authority,^[18] where it was held that a child is deemed to have the capacity to give informed consent when he/she ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.^[19] However, the Court imposed a requirement that a court application must first be made for determination that a child is Gillick competent.

The judgment in Re Jamie was at the time viewed as a positive one because, despite the imposition of the requirement that Gillick competency be determined by the courts, it was said to allow better access to treatment for transgender adolescents.

KELVIN: A TURNING POINT FOR ADOLESCENTS WITH GENDER DYSPHORIA

In the decision of Kelvin, the majority of the Full Family Court of Australia held that adolescents with gender dysphoria who have parental consent and medical support no longer require court approval or a determination that they are Gillick competent to undergo stage 2 treatment. Thackeray, Strickland and Murphy JJ found that it was ‘unnecessary and indeed inappropriate’ for the Court to find that the decision in Re Jamie was ‘wrong’ or that it ought to be ‘overruled’. Rather, their Honours reasoned that a departure from the decision in Re Jamie is justified, as it no longer accords with the current medical knowledge and that ‘the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment’.^[20]

In reaching its decision, the majority of the Court made it clear that stage 2 treatment ‘can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority’.^[21] The Court noted that the decision in Re Jamie would likely have differed if it were made today.^[22]

It is important to note that where parental consent is not forthcoming or available (for example, where a child is under the care of a state government department), or where there is disagreement between the parents or between the medical professionals as to whether the treatment should be administered, the Court retains jurisdiction and power to address those issues.^[23]

CONCLUSION

Prior to the decision in Kelvin, Australia was the only country in the world that required transgender adolescents to obtain the approval of the court to access stage 2 treatment. This decision marks the court catching up with the medical profession on the treatment of gender dysphoria. The decision in Kelvin has been welcomed by transgender and children’s advocates, who believe it ‘will improve human rights protection for young transgender people’^[24] and ‘will have a significant, positive impact on the health and wellbeing of trans young people’^[25] in Australia.

Needless to say, there are further challenges ahead for transgender adolescents like Kelvin. It is hoped that this decision will provide the legislature with a guide as to how it should sensitively and sensibly grapple with the other ‘legal’ issues affecting transgender persons.

Greg McAllister is a lawyer at Carroll & O’Dea Lawyers, Sydney. PHONE [phone] EMAIL [e-mail]. The author wishes to thank Lara Piercy, formerly of Carroll & O’Dea Lawyers, Sydney.

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^[1] [2017] Fam CAFC 258.

^[2] A pseudonym.

^[3] Kelvin, 24-36.

^[4] Ibid, [37], [38]-[43].

^[5] Ibid, [48]-[50].

^[6] 5th ed, American Psychiatric Association Publishing, USA, 2013.

^[7] While there is some similarity between the criteria for adolescents (and adults) and that for children, the DSM criteria in children requires six months of significant distress or impairment with six out of eight criteria being met.

^[8] While it cannot be said that all who experience gender dysphoria want to be the opposite sex, the DSM criteria for a gender dysphoria diagnosis includes ‘a strong desire to be rid of their secondary sexual characteristics or prevent their development’ and ‘wanting secondary sexual characteristics of the opposite gender’.

^[9] K J Zucker, ‘The DSM Diagnostic Criteria for Gender Identity Disorder in Children’, Archives of Sexual Behavior, 39: 477, 2010; A L de Vries, P T Cohen-Kettenis, ‘Clinical Management of Gender Dysphoria in Children and Adolescents: the Dutch Approach’, Journal of Homosexuality, 59:301, 2012; N P Spack, L Edwards-Leeper, H A Feldman et al, ‘Children and Adolescents with Gender Identity Disorder Referred to a Pediatric Medical Center’, Pediatrics, 129:418, February 2012.

^[10] M Smith, QUT Australian Centre for Health Law Research, ‘Treatment for Childhood Gender Dysphoria and the Law In Australia’ (September 2016) <https://cms.qut.edu.au/__data/assets/pdf_file/0010/555553/gender-dysphoria-study-achlr.pdf>.

^[11] [2004] FamCA 297.

^[12] Note that the Court can authorise treatment only if medical opinion that the treatment is in the child’s best interests is present. Medical consent was obtained for each of the cases presented in this article.

^[13] [2013] FamCA 518.

^[14] Ibid, [99].

^[15] [2013] FamCA 563.

^[16] [2013] FamCACF 110.

^[17] Ibid, [85].

^[18] [1985] UKHL 7; [1986] AC 112.

^[19] Ibid, 183-4 (per Scarman LJ). The principle and test for ‘Gillick competence’ was made law in Australia in Department of Health & Community Services v JWB & SMB (Marion’s case), 238 (per Mason CJ and Dawson, Toohey and Gaudron JJ).

^[20] Kelvin, [162] and [177].

^[21] Ibid, 164].

^[22] Ibid, [164] and [165].

^[23] Ibid, [133].

^[24] Australian Human Rights Commission, Commission Welcomes Re Kelvin Decision (30 November 2017) <https://www.humanrights.gov.au/news/stories/commission-welcomes-re-kelvin-decision>.

^[25] Ibid.