Re Kelvin  FamCA 78
The Full Family Court of Australia has held that Stage 2 hormone treatment for transgender young people does not require the court’s authorisation. Court intervention will remain necessary where there is controversy or disagreement between parents or between treating doctors and parents.
Until this case, it is understood that Australia was the only jurisdiction in the world to require transgender young people to seek court authorisation to access treatment. This has drawn criticism from doctors, parents and advocates for unnecessarily increasing mental health risks for transgender young people.
Kelvin was registered as female at birth, but has identified as transgender since he was nine years old. Kelvin was treated by a psychologist, a psychiatrist and an endocrinologist – all of whom agreed that Kelvin met the diagnostic criteria for gender dysphoria and recommended that Kelvin undertake Stage 2 treatment.
In January 2017, Kelvin’s father applied to the Family Court for an order that Kelvin is competent to consent to Stage 2 treatment. There was agreement between Kelvin, his father, his mother or his treating medical practitioners that the treatment was in Kelvin’s best interests and necessary to alleviate Kelvin’s symptoms of gender dysphoria. Kelvin is now 17 years old.
Children under the age of 18 who have been diagnosed with gender dysphoria may wish to access the medical treatment to support them to transition and live as their affirmed gender. A young person experiencing gender dysphoria experiences intense discomfort and distress with their biological sex, and consequently, the sex characteristics and gender expression they physically exhibit. Stage one treatment ("puberty blockers") for gender dysphoria involves supressing the onset puberty and, following the case of Re Lucy  FamCA 518), court authorisation is generally not required. However, the Family Court of Australia previously held in the case of Re Jamie  FamCAFC 110 that court authorisation must be obtained before children commence stage two treatment (cross-sex hormone treatment - i.e. oestrogen or testosterone) largely because, compared to Stage 1 treatment, the effects of cross-sex hormone treatment are irreversible.
This decision meant that where stage two treatment of a child with gender dysphoria was sought, the child had to apply to the Family Court for authority to commence this treatment. Since Re Jamie the Family Court has dealt with 63 cases involving stage two treatment for gender dysphoria. In 62 cases the treatment was allowed. For these cases the average wait between the time treatment was recommended and when the case was heard was eight months. During this time, many of the children experienced a decrease in their emotional well-being, including anxiety, depression and self-harm. The resources of clinicians and the hospital were diverted from providing treatment to preparing court reports and explaining and supporting families through the court process. Further, there was a significant financial cost for families in going to the Family Court to obtain authorisation.
The issue before the court was whether the Full Court should confirm its earlier decision in Re Jamie, that stage two treatment of a child with gender dysphoria requires court authorisation.
Application of Marion's case
In Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's case)¸the High Court considered the sterilisation of a young girl with a disability. This is the central authority considered and applied by the Court.
The majority viewed itself, strictly speaking, as only bound by Marion's case in respect of the non-therapeutic sterilisation of a child with a disability who is not Gillick competent and never will be. However, the majority also observed that the decision in Marion's case should not be taken as limiting the cases in which court authorisation is required to sterilisation and sought to apply the principles of Marion's case as obiter dicta to the present case. The majority applies obiter comments from Brennan J’s dissent in Marion’s case to introduce a form of proportionality test in considering whether treatment is therapeutic (i.e. where the benefits of the treatment are weighed against the risks).
The minority differed in their reasoning about court authorisation for cases involving sterilisation. The minority found that consideration of the gravity of medical treatment only arises where the proposed treatment is non-therapeutic.
Not necessary to ‘overrule’ Re Jamie
The majority found that the stated case does not require the Court to “overrule” Re Jamie, but instead the Court must consider “whether it is appropriate to now depart from Re Jamie in order that the law is able to effectively reflect the current state of medical knowledge.” The majority held that it is unnecessary and inappropriate for the Court to find that Re Jamie was “plainly wrong”.
The minority disagreed and held that Re Jamie was “plainly wrong” as the statements of principle made in Re Jamie attributed to Marion’s case were “erroneous”. In particular, the Court in Re Jamie distinguished between Stage 1 and 2 treatment not by reference to whether they were therapeutic or non-therapeutic, but by considering whether the treatment was irreversible or not. This incorrectly confused the outcome of therapeutic treatment with the consequences identified in Marion’s case, which removed non-therapeutic sterilisation from the realm of parental consent.
Court authorisation not required in uncontroversial cases
The Court found authorisation is no longer required in circumstances where the child is Gillick competent to make the decision to commence treatment as determined by their medical practitioners. Court authorisation will also no longer be required in circumstances where the child is not Gillick competent but their parents' consent and medical practitioners agree. However, court authorisation will still be required for a ward of the state or where there is a genuine dispute or controversy (e.g. if the parents or medical professionals disagree).
The majority found that there is “no question that the state of medical knowledge has evolved since the decision in Re Jamie”, particularly the increased knowledge of the risks associated with not treating a young person who has gender dysphoria. Here, the majority reflected that “[i]t is readily apparent that the judicial understanding of Gender Dysphoria and its treatment have fallen behind the advances in medical science.”
The majority held that the therapeutic benefits of stage two treatment outweigh the risks and consequences involved in the irreversible nature of the treatment. The decision places emphasis on the need for proper medical assessment in determining treatment to be appropriate for the child.
The minority agreed that a Gillick competent child can consent to Stage 2 treatment without court authorisation.
Re Kelvin is a landmark decision which will allow families to support their children to access necessary treatment to help their children reach their potential without court involvement. It has been welcomed by the trans and gender diverse community in removing a significant barrier to accessing appropriate medical treatment for transgender young people. The decision paves the way for transgender young people to access medical treatment without the ordeal of a lengthy and intrusive court process, and reinforces current medical best practice in treating gender dysphoria to best support and promote the welfare of transgender young people.
The decision does not extend to wards of the state accessing Stage 2 treatment or situations where a parent has had no contact with a child for a number of years (e.g. situations involving family violence). In these cases, young people will still require court authorisation to commence treatment.
In addition, the majority judgment introduces a proportionality test for assessing whether court authorisation is required in cases involving sterilisation. It is unclear exactly how this may be interpreted or applied by courts in relation to other special medical procedures.
The Court observed that both this case and previous cases involving gender dysphoria have attracted widespread media attention which has "at best, been incomplete and, at worst, inaccurate". However, in carefully explaining the medical and legal considerations at play in accessing Stage 2 consideration, this decision may play a role in addressing common misconceptions about existing medical safeguards already in place in treating transgender young people.
Additional commentary from Anna Brown of the Human Rights Law Centre
The decision that the Court has no role to play in cases involving stage 2 hormone treatment was a very positive outcome for the transgender community, removing a stressful and resource intensive burden from the lives of young trans people and their families. For this reason, the judgment of the Full Court should be warmly welcomed. However, the reasoning the majority used to reach this conclusion was not ideal and has potentially created legal uncertainty for decision making around medical treatment for young people more broadly.
It is unfortunate that the majority did not definitively conclude that there is no role for the court to play for any treatment that is ‘therapeutic’ in nature – a question of medical fact. Instead, the majority judgment has introduced a new form of proportionality test, based on a minority judgment in Re Marion, seemingly contrary to the majority opinion in Re Marion. While the Court has moved away from a specific focus of ‘reversibility’ evident in the reasoning in Re Jamie, the majority still see “a weighing process between the therapeutic benefits against the risks” taking place before the treatment can be considered to fall within the bounds of parental decision-making.
Such an approach inserts a new and unnecessary step in the analysis and, as was submitted by counsel for the Royal Children’s Hospital, confuses the nature, form and characteristics of therapeutic treatment with the consequences of that treatment. The question of proportionality should rightly go to determining the question of whether the treatment is ‘therapeutic’, not be balanced against the therapeutic nature of the treatment.
Unsurprisingly, we prefer the judgment of the minority (Ainslee-Wallace & Ryan JJ), which found that the majority in Re Jamie were plainly wrong and that the principles in Re Marion were incorrectly applied in that case. Inquiry by the Court has no place when treatment is ‘therapeutic’ in nature, unless there is a dispute of some kind (e.g. between parent and doctor or parent and parent).
This decision does not address the pressing issue of surgery and medical interventions on children with intersex variations. There is an urgent need for more oversight but medical practitioners and judges appear to decide that these types of treatment are therapeutic and therefore do not require court supervision (as in the case of Re Carla). Overall, this points to a need for government intervention to create a cohesive and human rights based approach to decision-making in those cases.
So while this decision provides much needed relief for many trans young people and their families, it leaves unanswered the question of whether stage 3 treatment for gender dysphoria requires court authorisation, and could potentially have much further reaching consequences for decision making about medical treatment for children. It is likely that further litigation will be required to develop the jurisprudence in this area and achieve clarity and certainty for treating clinicians and families.
The full text of the decision can be found here.
Our media release about the decision is available here.
Rachell Davey is a Special Counsel and Catherine Hillis is a Solicitor at Lander & Rogers. Lee Carnie is a Lawyer at the Human Rights Law Centre.
The Human Rights Law Centre partnered with Lander & Rogers to represent A Gender Agenda, an ACT-based community organisation which supports trans, gender diverse and intersex children. Kris Walker QC and Elizabeth Bennett appeared for A Gender Agenda.