It’s Pride Month! So we thought we would talk about the current law in relation to gender affirming medical care for children in Australia.
In recent years, Australia has witnessed significant developments in case law and legislation concerning transgender children. As understanding and acceptance of transgender individuals increase, it becomes crucial to explore the legal landscape that governs their wellbeing and care.
Gender affirming care
To be transgender is to identify with a gender different to that which was assigned at birth. It’s important to note that being transgender is not a medical condition, it’s considered a matter of gender identity, and is how someone identifies rather than a diagnosed condition. Some transgender people experience a condition called Gender Dysphoria and they may seek gender affirming medical care to alleviate the symptoms of Gender Dysphoria. There is also non-medical gender affirming care such as having their pronouns affirmed and changing their presentation to match their identity. Transgender people may seek medical and non-medical forms of gender affirming care regardless of a diagnosis of Gender Dysphoria.
The Courts generally distinguish the forms of gender affirming medical care for transgender people as follows:
- Stage 1, which consists of the administration of puberty suppressant hormones and the effects are generally considered reversible;
- Stage 2, which consists of the administration of either oestrogen or testosterone and the effects are generally irreversible without surgical intervention; and,
- Stage 3, which consists of surgical interventions, typically limited to mastectomies for those under the age of 18.
The previous case law
There are certain special medical procedures for children which fall outside parental responsibility to consent to the treatment on behalf of a child and require determination by the Court. Gender affirming medical care for transgender children was previously considered one of these special medical procedures.
The landmark High Court case decision regarding special medical procedures is Marion’s case which established that the court needs to approve a special medical procedure or “non-therapeutic” treatment even if the parents agree, where there is:
- A significant risk of the wrong decision being made; and,
- Where the consequences of such a wrong decision are particularly grave.
Following an application by a party, the Court will then determine whether or not it is in the best interests of the child to undergo a particular special medical procedure. This meant that the onus was on parents to establish to the Court that receiving gender affirming medical care was in the child’s best interest even where the child, the treating medical practitioner and the parents all already agreed.
Developments in case law
The Federal Circuit and Family Court of Australia has played a significant role in shaping gender affirming medical care for children. In several landmark cases, the court has considered applications for medical interventions and affirmed the rights of transgender children to access appropriate healthcare.
In Re Jamie (2013) it was held that families seeking stage 1 treatment for a child would not require court authorisation as the authorisation falls within the “wide ambit of parental responsibility”. This is provided that the parents, treating medical practitioners and the child agree and that no other special circumstances exist.
In relation to stage 2 treatment, it was held in Re Kelvin (2017) that if a child is considered “Gillick competent” by their medical practitioners, that is, they fully understand and appreciate the treatment that is being proposed, they can consent to the treatment without the need to go to court. Alternatively, stage 2 treatment can be available to non-Gillick competent children with the consent of their parents and the medical practitioner’s agreement.
Stage 3 treatment, while not directly addressed in Re Kelvin has been clarified to an extent. The minority judgement has stated that there is no reason in principle to distinguish between the approaches to be taken to gender affirming medical care. Therefore, on those grounds, a Gillick competent child should be able to receive Stage 3 treatment without court authorisation.
Recently, in the case of Re Imogen (2020), the Court confirmed that the Court’s authorisation is only required to proceed with gender affirming medical care if a parent disputes that proceeding with medical intervention is in the child’s best interest or if the parent disputes the child’s capacity to consent.
In Australia, the Gillick competence principle derived from a UK legal case has been influential in determining a child’s capacity to consent to medical treatment. According to this principle, mature minors who demonstrate sufficient understanding and intelligence to make informed decisions about their healthcare can provide consent, even without parental involvement. This principle forms the basis for many decisions related to transgender care for children.
However, it is worth noting that where a parent disputes that gender affirming is in the child’s best interest, the treating medical practitioner should await the parents reaching an agreement themselves or Court authorisation. A medical practitioner should confirm that everyone with parental responsibility to the child consents to gender affirming medical care.
Name and Gender Changes
The Births, Deaths, and Marriages Registration Act 1996 (Vic) underwent significant amendments in 2019, making it easier for transgender and gender diverse individuals to update their registered sex on official documents. These amendments allow individuals aged 18 years and older to self-nominate their gender identity, without requiring invasive medical interventions or approval by a Court. This change provides greater autonomy and recognition for transgender people and affirms their right to self-identify.
The 2019 amendments also enabled parents to change the recorded sex of their children without Court authorisation where all parents and the child consent and reasonably believe that the change is in the child’s best interest.
School Inclusion and Anti-Discrimination Laws
Victoria’s education system promotes inclusivity and non-discrimination, aiming to create safe and supportive environments for transgender students. The Victorian Equal Opportunity Act 2010 (Vic) prohibits discrimination on the basis of gender identity, ensuring that transgender children can access education without fear of prejudice or mistreatment. Though there are some exceptions regarding competitive sports and religious schools.
Additionally, the Victorian Department of Education and Training has developed guidelines to assist schools in supporting transgender and gender diverse students, covering areas such as privacy, uniforms, and parental support.
Ongoing Challenges and Future Developments:
While Victoria has made significant progress in safeguarding the rights of transgender children, challenges persist. Access to timely and gender-affirming healthcare remains an issue, with long waiting lists for specialist services. Moreover, there are ongoing debates regarding the minimum age for accessing medical interventions and the role of parental consent in decision-making processes. As the understanding of transgender issues evolves, it is likely that further legislative and policy changes will be necessary to address these challenges.
Australia has made significant strides in recognising the rights of transgender children and supporting their healthcare needs. While challenges and debates regarding age restrictions and parental consent persist, Australia’s evolving legal landscape reflects a growing commitment to providing compassionate and affirming care for transgender children. By continuing to navigate these complex issues, Australia paves the way for progressive advancements in transgender healthcare for children.
Our office has significant legal experience in matters of parental disputes regarding gender affirming medical care. If you have any queries or require legal advice please contact our office to arrange an initial consultation at 03 9670 4122.