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Navigating Gender Affirming Care: A Comparative Analysis of US and Australian Laws

Gender affirming care is a complex and emotional topic. It requires immense sensitivity and understanding. There are human beings involved – and often young and vulnerable ones at that. These young people deserve our compassion and respect.

Nicholes Family Lawyers does not support or condone the politicising of any young person’s emotional or physical health or choices/treatment / paths taken. All young people have the right to lead fulfilling lives and to be the best version of themselves – and to do so safely.

However, we offer an analysis of recent developments in the law in the United States of America, and how that contrasts with Australia for informational purposes.

On 18 May 2023 Chapter No, 2023-90 was given effect after being signed by Florida Governor, Ron DeSantis the previous day. This amended the law in Florida in relation to transgender healthcare for both adults and children. Generally, these changes to law mean access to gender affirming care is restricted for adults and children.

Importantly, the amendment broadens the scope of the Courts in Florida as to the criterion for emergency jurisdiction in relation to children present in the state. Children which are receiving or are being ‘threatened with being subjected to’ gender affirming medical care are considered to fall within the scope of temporary emergency jurisdiction. The amendment specifies that this includes the administration of puberty blockers, hormones inconsistent with assigned sex at birth and any medical procedure.

The new law has created much public discourse on the issue as some are concerned about children being removed from their families for receiving prescribed medical care. There is also debate as to the precise effect of the amendment on family law disputes in Florida such as whether a parent can now file an emergency application on the basis of a child receiving gender affirming medical care; and how it will affect families with gender diverse children visiting Florida.

In Australia, gender affirming medical can be an issue for the Courts where there is a dispute between the parents as to whether the treatment is in the child’s best interest. Where the parents agree the matter does not need to be taken to Court. In some instances, a parent could make an application on an emergency basis. This could be because a parent is unilaterally making irreversible medical decisions regarding the child or because the child needs gender affirming medical care on an emergency basis due to the risk to their safety without treatment.

As for the State intervening due to a child being in an emergency, this is governed by the individual State or Territory. In Victoria, for example, the child protection system is governed by the Children, Youth and Families Act 2005 (Vic) (‘The Act’).

In Victoria, there is no specific provision for a child being in need of protection on the basis of receiving gender affirming medical care. The grounds for a child being in need of protection is set out in section 162. The grounds include:

  • The child being abandoned;
  • The parents are deceased or incapacitated;
  • Likelihood of the child suffering physical harm;
  • Likelihood of the child suffering sexual abuse;
  • Likelihood of the child suffering emotional or psychological harm; or,
  • Likelihood of the child’s physical development or health being significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

If a child is found to be in need of protection then the Department of Families, Fairness and Housing may make an application with the Children’s Court who will make the decision regarding the child’s care.

There is some precedent regarding child protection authorities intervening in cases involving transgender children. At the time of this article there do not appear to be any published judgements for Children’s Court cases in Victoria in relation to transgender children.

However, a Western Australia Supreme Court judgement of Wm -V- Ceo For Department Of Communities [2021] WASC 325 offers some guidance. The case involved an appeal of a successful protection application by child protection for a 16 year old transgender child who was experiencing verbal and emotional abuse in the family home. A component of this emotional harm was the child’s parents responding to their child’s view on gender with verbal and emotional abuse which exacerbated a real risk of harm and suicide. The appeal was unsuccessful.

As we can see, Australia and Victoria are a far cry away from the laws of Florida in relation to gender affirming care for children.

If you have any queries about proceedings in the Victorian Children’s Court or family law proceedings in relation to a gender diverse child, please do not hesitate to contact our office at 03 9670 4122 to arrange an initial consultation.

By Nicholes Family Lawyers


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