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Re Kelvin decision a positive outcome for transgender children

After much anticipation, the Full Court of the Family Court delivered their judgment in Re Kelvin. The Court held that children with Gender Dysphoria who wish to commence Stage 2 hormonal treatment no longer require court authorisation to commence the treatment.

Previously, the parents of transgender children were required to gain consent from a Family Court judge to enable their child to have access to the hormone treatment, which was often a difficult and expensive experience for families. However, the Full Court held that the decision to allow a child to have Stage 2 treatment was not a decision to be made by a court but a decision to be made by parents in conjunction with their child and medical professionals.

In Re Kelvin, the Full Court was required to provide answers to six questions based on their decision in Re Jamie, the case which set the precedent requiring court approval for Stage 2 treatment.
Stage 2 treatment involves the use of either oestrogen to feminise the body in those who have a female gender identity or testosterone to masculinise the body in those who have a male gender identity. The effects of Stage 2 treatment are irreversible and can impact on fertility. Stage 1 treatment is “puberty-blocking treatment”. The effects of this treatment are reversible when used for a limited period of approximately 3-4 years and act as a way of reducing the psychological stress that comes with unwanted changes during the onset of puberty.

The child in this case, referred to as ‘Kelvin’, now aged 17 years, was born female but identified with a male gender identity. The child had transitioned socially as a transgender male and thus sought to commence Stage 2 treatment, having the full support of his parents and treating doctors.

The Full Court held that where:

1. Stage 2 treatment for Gender Dysphoria is proposed,
2. the child consents to the treatment,
3. the treating medical practitioners agree that the child is “Gillick competent” to give that consent; and
4. the parents of the child do not object to the treatment,

then it is not mandatory to apply to the Family Court for a determination on whether the child is “Gillick competent”. “Gillick competency” means that a child is capable of fully understanding the effects of the medical treatment and thus able to consent to it.

Since 2001, Nicholes Family Lawyers have worked closely with the Royal Children’s Hospital in this area, by providing pro bono legal work for families of Gender Dysphoric children. We have been dedicated to this work and are honoured to have been able to work with the doctors at the Royal Children’s Hospital in these cases and assist families through the court process.
We note that court authorisation may still be required where there is a “genuine dispute or controversy as to whether the treatment should be administered” as well as for some applications for Stage 3 treatment. Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery. The Royal Children’s Hospital will still be providing services for these cases. Nicholes Family Lawyers will also continue to help families who require legal assistance in this regard.

If you are seeking legal assistance in relation to Gender Dysphoria treatment, or if you have any queries relating to the law in this area, our team of experienced lawyers would be glad to discuss with you.


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