Trans children and family law
Updated: 22 October 2023 · Read time: 6 minutes
The Law surrounding children with gender dysmorphia has evolved substantially over the last few decades, following cultural shifts, medical advancement and the evolution of legal theory.
Many of these changes have been quite slow, as the courts have incrementally built upon previous decisions, yet progress is occurring. Recent shifts have streamlined the process of children with gender dysmorphia transitioning genders, decreasing requirements for judicial oversight for uncontested cases.
In 2017 the Family Court of Australia set a precedent in the case Re: Kelvin, diminishing the Court's role in overseeing ongoing treatment for gender dysmorphia. This case addressed a situation where all relevant parties, medical professionals, parents, and the child, agreed to commence stage two of treatment. The decision marks a significant step in the rapidly progressing legal landscape of gender dysmorphia, and streamlines the process for similar relatively uncontroversial cases.
It is not always necessary for a judge to rule on a child’s competence to initiate the second stage of gender dysmorphia treatment.
Specifically, the Court found that it is not always necessary for a judge to rule on a child's competence to initiate the second stage of gender dysmorphia treatment. However, it is essential to note that this only applies where no one is contesting the treatment; for example, it does not impact cases where one parent argues that hormone therapy treatments are not in the child's best interest.
What is gender dysmorphia?
Gender dysmorphia is a complex and deeply personal condition that challenges traditional notions of gender identity and expression. It is characterised as a distressful discrepancy between a person's gender identity and the sex an individual was assigned at birth.
It is common for those diagnosed to fight societal expectations and cultural norms in their quest to live as their authentic selves. For those who suffer from gender dysmorphia, the disconnect between their internal sense of self and their outward appearance can be devastating, leading to feelings of shame, anxiety, and depression.
Medical treatments aim to diminish these adverse effects by aiding an individual in aligning themselves with their gender identity.
Gender dysmorphia may be identified at any stage of life, yet Legal dynamics are increasingly complex where children are involved due to the challenges surrounding maturity, and the need for individuals to consent to medical procedures.
This topic is controversial and may lead to personal or broad social disagreement. Yet, it is the law's responsibility to minimise the probability of harm and distress while maintaining the freedoms of all involved.
Many developments that occur in the early stages of childhood and throughout puberty irreversibly alter an individual's biological features, be that through hormonal treatment or via the lack of it. As a result, there is a need for treatments to begin as soon as possible, often before children are old enough to fully understand the biological, psychological, and social consequences that may arise from the decision.
How are children with gender dysmorphia treated?
Medical treatments for children experiencing gender dysmorphia typically begin from the age of 12, where 'puberty blockers' are administered to prevent the onset of early stage gender development.
These are often administered for four years, until the age of 16, thus allowing the child time to contemplate if they would like to continue with treatment and develop the maturity level necessary. Such medicines also aid in preventing the distress which may arise from the onset of secondary sex characteristics which vary from the Child's Gender identity.
Stage two of treatment involves the administration of hormones, including oestrogen or testosterone, depending on how the child wishes to go through puberty. This stage is generally where irreversible secondary sex characteristics are developed, such as facial hair in males or larger breasts in females.
At later stages, individuals may undergo a third stage involving invasive surgery; however at present these procedures are generally seen as less time sensitive, allowing for the decision to be made by the individual once they are old enough to consent independently.
If stage two of treatment is delayed, or if the gender transition occurs later in life, the number and risk involved in such surgeries may increase.
How is consent established for minors?
Children are typically not seen as old or competent enough to consent to irreversible or dangerous medical procedures, yet exceptions have arisen for situations where not doing so may increase the risk of serious harm. In cases where the benefit may outweigh the risk and where a parent may not be capable of consenting, the concept of 'Gilick competence' has typically been used to allow a minor to consent on their own behalf. 'Gillick competence' is generally established when a judge and medical practitioner find that the child is sufficiently informed and aware of the risks to make the decision.
With the development of modern medical knowledge, it has become accepted that, in many cases, not treating gender dysmorphia can risk more significant harm than denying treatment. Yet it has been argued that gender dysmorphia should be treated differently than other medical conditions.
In the past, a Judge ruled on each stage of the treatment, even when all parties agreed. The decision in Re: Kelvin has reduced how often courts must rule on intermediary steps, diminishing the administrative burden and legal costs.
The topic of administering hormone therapy to children remains controversial, and the law is still developing to a point where it addresses the multitude of social and ethical concerns that arise. There remain many occasions where the law is unclear or requires court procedures to occur.
In such a rapidly evolving area, there remain many occasions where Australian law is unclear or requires clarification from the Court to occur
For instance, where parents disagree on the necessity of a treatment, or where new medical developments shift the factual landscape for transgender children. For now we can take solace that the Family Court is beginning to bring clarity to the topic.
The law surrounding treatments for gender dysmorphia is rapidly changing as the legal domain adjusts to continuous developments in medical knowledge. For this reason, it is essential that anyone concerned reach out to experts in the field who are up to date with the legal landscape. For such advice, feel free to reach out to us!
