Family Court of Australia rules transgender young people no longer need to apply to the Court for surgery

Re: Matthew [2018] FamCA 161 (16 March 2018)

Summary

The Family Court of Australia has made a declaration that transgender young people diagnosed with gender dysphoria no longer need to apply to the Court for Stage 3 treatment where:

  1. the transgender teenager has been diagnosed with gender dysphoria;
  2. the transgender teenager's treating practitioners agree that the child is Gillick competent; and
  3. there is no controversy regarding the application (e.g. disagreement between the parents or doctors about the treatment).

Facts

Matthew is a 16 year old transgender teenager who was assigned female at birth, but identifies as male and has been diagnosed with gender dysphoria. Matthew's parents applied to the Court for orders that he was Gillick competent to consent to Stage 3 treatment for gender dysphoria. The Stage 3 treatment which was proposed in this case was a double mastectomy, also known as 'top surgery'.

Stage 3 treatment

Stage 3 treatment is treatment which is surgical in nature. Advancing on Stage 2 treatment, which does not involve surgical intervention, Stage 3 treatment includes, but is not limited to chest reconstructive surgery, phalloplasty, hysterectomy, bilateral salpingectomy or creation of the neovagina and vaginoplasty.

The Court's description of Stage 3 treatment in Re: Matthew was non-exhaustive, meaning that this decision has the potential to extend to a broad range of treatments.

Decision

Instead of making the orders sought, Justice Rees dismissed the application before the Court and instead held that the proposed treatment was for the purpose of treating a "bodily malfunction", albeit psychiatric and was thus therapeutic in nature.

In coming to this conclusion, Her Honour summarised the main questions for consideration in the case as follows:

  • Is Gender Dysphoria a medical condition?
  • Does the subject child have Gender Dysphoria?
  • Is the treatment prescribed therapeutic?
  • Is there a controversy?
  • If the treatment is therapeutic, is it necessary for an application to be brought to the Family Court, seeking a finding that the child is Gillick competent, before the proposed treatment can proceed?

Her Honour identified gender dysphoria as a medical condition with which Matthew had been diagnosed.

There was no controversy surrounding the application in this case as Matthew, his parents and his treating doctors all agreed that Stage 3 treatment was the appropriate and recommended cause of action. Her Honour confirmed that an application to the court to determine Gillick competence would be required if there was controversy, including:

  • whether a young person is Gillick competent;
  • whether the proposed treatment is appropriate;
  • whether the parents and the child consent to the proposed treatment;
  • disagreement between treating doctors; or
  • any other controversy.

Her Honour then continued to consider whether the proposed treatment was therapeutic in nature, having regard to the High Court's judgment in Secretary, Department of Health and Community Services v JWB and SMB [2004] HCA 20, known as "Marion's Case", and the Full Court's recent decision in Re Kelvin [2017] FLC 93-809.

In finding that the proposed treatment was therapeutic in nature, her Honour relied on the evidence filed by Matthew's treating practitioners. The evidence of the practitioners was to the effect that the proposed treatment would significantly reduce the psychological pain and distress Matthew experiences as a result of the incongruence between the appearance of his breasts and his presentation as male. Accordingly, Her Honour held that Stage 3 treatment was therapeutic because it would be administered for the purpose of treating a psychiatric condition.

As such, following the decision in Re Kelvin where it was held that court authorisation was no longer required for Stage 2 treatment, Justice Rees determined that because the proposed Stage 3 treatment was therapeutic, and there was no controversy, a court order finding that Matthew was Gillick competent was therefore unnecessary.

Justice Rees went one step further in making a declaration that an application to the Family Court is not necessary for Stage 3 treatment for gender dysphoria where the outlined criteria have been met, in recognition of the relevance of this decision for a wider audience, where parents and doctors look to the Court’s orders for guidance in these cases.

Commentary

This decision means that transgender young people who have been diagnosed with gender dysphoria are no longer required to seek court authorisation for Stage 3 treatment where they are Gillick competent and there is no controversy regarding the treatment.

However, akin to Re Kelvin, where there is a dispute as to whether the treatment should be administered, the Family Court retains the jurisdiction and the power to address that issue. Therefore, if there is a lack of agreement between the young person, parents and medical practitioners, or concerns about the young person’s capacity to understand the nature of the treatment, the Family Court will likely have to decide whether the transgender teenager should be authorised to receive Stage 3 treatment.

Unlike Re Kelvin, which was a decision of the Full Court of the Family Court, this decision is a first instance single judge decision and so it provides guidance but is not binding on other judges of the Family Court.  

The decision is not likely to be appealed to the Full Court (which would result in a binding decision), given the only parties to the proceedings were the applicants and the Independent Children's Lawyer. Interestingly, the Department of Family and Community Services chose not to intervene in the matter, despite being provided with notice that the Court indicated that it intended to determine whether the treatment is therapeutic. What this means is that until it is challenged or overturned by a subsequent judgment, the decision in Re: Matthew remains current.

The Family Court has now held in three separate public interest test cases that court authorisation for treatment for transgender young people is not required in cases without controversy, to access Stage 1 treatment in Re Jamie, Stage 2 treatment in Re Kelvin and Stage 3 treatment in Re Matthew.

We are yet to see whether the other first instance Judges of the Family Court will follow Justice Rees' decision, including those who preside over matters heard in other states and territories in Australia. However, it is hoped that this decision will mark an end to the Family Court imposing a higher, more onerous requirement for transgender young people’s medical decision-making, compared to all other young people who seek to access medical treatment. The decision has been warmly welcomed by human rights advocates, transgender advocacy groups and support groups for parents of trans and gender diverse children, as finally removing discrimination against transgender young people in the Family Court’s welfare jurisdiction.

The full decision can be found here.

Our case note on Re Kelvin can be found here.

Tessa Kelman and Shayal Autar are lawyers at Lander & Rogers.