The legal history of gender dysphoria in Australia

Embargoed until: Publicly released:
Two Australian experts have highlighted the recent legal developments concerning treatment of gender dysphoria in Australia. The authors say medical practitioners would benefit from an understanding of recent changes in case law that affect the process of parental consent in the treatment of children under 18 with gender dysphoria.

Journal/conference: Medical Journal of Australia

Organisation/s: Queensland University of Technology (QUT)

Media Release

RECENT legal developments concerning treatment of gender dysphoria in children have been highlighted in an article published in the Medical Journal of Australia.

Dr Malcolm Smith and Associate Professor Ben Mathews from the Queensland University of Technology in Brisbane wrote that medical practitioners would benefit from an understanding of recent changes in case law that affect the process of parental consent in the treatment of children under 18 with gender dysphoria.

In 1992 in Marion’s case, the High Court established that some medical procedures “fall outside the scope of parental consent, and instead require court approval”. These are known as special medical procedures and evidence must be provided that shows the procedure is in the child’s best interest.

In 2004, the Family Court in Re Alex found that treatment for gender dysphoria was nontherapeutic and therefore outside the boundaries of parental consent.

This meant that the court’s approval had to be sought for both the reversible Stage 1 of gender dysphoria treatment — in which the child’s puberty is halted via hormonal treatment — and the irreversible Stage 2 — in which the administration of oestrogen or testosterone begins to alter the child’s physical appearance.

However, since 2004 an increasing number of applications for court approval of gender dysphoria treatments have been made, suggesting an “unmet clinical need” in the community.

Three cases in 2013 changed the legal landscape significantly.

In Re Lucy, the Family Court held that “treatment for gender dysphoria is therapeutic treatment because it is administered primarily to ameliorate a psychiatric disorder”. It was also held that parents were lawfully permitted to consent to Stage 1 treatment because it was reversible.

Re Sam and Terry confirmed that Stage 1 treatment did not carry grave consequences, but both cases required court authorisation for Stage 2 treatment because of its irreversible effects and the significant risk of a wrong decision about the child’s present or future capacity to consent. 

More recently, the Full Court of the Family Court heard an appeal in Re Jamie, affirming the findings of Re Lucy and Re Sam and Terry. It also determined that a Gillick-competent minor could consent to Stage 2 treatment.

A Gillick-competent minor is “one who is found to possess sufficient understanding and intelligence to enable her or him to understand fully what is proposed”. Gillick competency must be determined by the court.

“The growth in applications for approval to treat gender dysphoria suggests a level of unmet need”, Smith and Mathews concluded. “The new legal landscape in Australia for treatment for gender dysphoria is therefore of current, and growing, importance for practitioners and individuals with this condition.

“Increased awareness of treatment possibilities, the benefits of early intervention, and of the legal framework, would be beneficial.”

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