Change in how the law deals with Transgender teens

By Anne O'Loughlin - Principal, Head of Family Law

Certain medical procedures require a court order prior to the medical procedure being undertaken on a child even if the child’s parents consent to the medical treatment and a doctor recommends the treatment.

However, as of November 2017, the Full Court of the Family Court (meaning five Judges heard the appeal all together) decided in the case of Re Kelvin that the court’s authorisation is no longer required for the administration of hormone treatment for teenagers with gender dysphoria.

Re Kelvin concerned a teenager (with the pseudonym “Kelvin”) who, from an early age, identified as male despite being born a female.  Following recommendations from his treating doctors, Kelvin wished to undergo stage 2 hormone treatment however was required to make an application to the Family Court to seek the court’s authority prior to being able to undertake the treatment. 

Stage 1 treatment for gender dysphoria provides for the administration of hormones to “halt” the progression of puberty in teenagers.  Stage 1 treatment requires two independent psychiatrists to undertake an assessment on the child in order for the treatment to be authorised. 

Stage 2 treatment provides for the administration of hormones which allow a child to develop the characteristics of the sex to which he or she identifies.  Prior to the Full Court’s decision in Re Kelvin, an application to the Family Court was required for a child  under the age of 18 to access stage 2 treatment.

The decision in Re Kelvin by a single Judge in the Family Court was appealed to the Full Court seeking that the court revisit whether the court should continue to have a role in deciding whether transgender teenagers may access stage 2 treatment.

The Full Court has determined that the court should no longer have a role in deciding to whether or not to allow stage 2 treatment.

For transgender teens, the timing of hormone treatment may be critical given that they are in a developmental stage of their life.  The procedure for seeking the court’s authority for stage 2 treatment to proceed was the subject of heated debate and criticism due to significant delays in such matters coming before the Family Court for determination.  

The procedure was also criticised due to the significant cost for families and for the emotional cost and delay in obtaining permission to undertake stage two treatment.   The decision of the Full Court has no doubt been welcomed by members of the transgender community.

If your child is transgender and you require further information about your child’s rights to transition or access medical treatment, you should speak to your lawyer. 

For further information please contact Principal - Head of Family Law, Anne O'Loughlin, on 03 5273 5244.

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