Following the case of Re Kelvin children with gender dysphoria wishing to commence Stage 2 hormonal treatment no longer require Court authorisation to commence treatment. However, the case of Re Kelvin was largely silent on whether Court approval was still required for Stage 3 treatment for those under the age of 18.
The case of Re Matthew  FamCA 161 recently dealt with this issue. In this case, the Applicant sought approval for a 16 year old child, born female but identifying as male, to undergo Stage 3 treatment for Gender Dysphoria in the form of a double mastectomy.
The Family Court held that the Court does not need to grant permission for Stage 3 treatment to proceed in circumstances where the following elements are satisfied:
- The child has been diagnosed as suffering from Gender Dysphoria;
- The treating practitioners have agreed that the child is Gillick competent;
- It is agreed that the proposed treatment is “therapeutic”; and
- There is no controversy.
The Court dismissed the Application. However, instead of making an order deeming the child competent of consenting to the Stage 3 treatment, the Court found that the proposed treatment was for the purpose of treating the psychological disorder of Gender Dysphoria and was accordingly deemed to be ‘therapeutic’ in nature.
Previously in Marion’s case, Justice Brennan defined medical treatment as therapeutic:
“…when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered.”
The Applicants in Re Matthew relied on evidence given by each of them and 5 medical practitioners, including a plastic and reconstructive surgeon, psychiatrist, endocrinologist, paediatrician and psychologist. The evidence from the medical practitioners was that the Stage 3 treatment would alleviate the significant psychological distress caused by the incongruent appearance of having breasts and identifying as male. As such, the Court found that Stage 3 treatment was therapeutic in this circumstance because it would be administered for the purpose of treating a psychiatric condition such as Gender Dysphoria.
The decision to perform Stage 3 treatment on a child with Gender Dysphoria is therefore largely dependent on the opinion of the child’s treating medical practitioners. The position of the child’s parents will also have a significant impact on the decision to proceed with the surgery.
Judge Rees noted in the case of Re Matthew that Stage 3 treatment would proceed “in the circumstances of this case”, suggesting that each case should be determined on its own facts and circumstances. However, according to the Judgment, if the child is capable of consenting to the treatment, the child’s parents have consented and the child’s doctors have authorised the surgery, then Stage 3 treatment for Gender Dysphoria can proceed without the need for Court intervention.
The case is a landmark decision and one that is positive and progressive for the transgender community and those struggling with Gender Dysphoria.
Nicholes Family Lawyers are proud to have acted on a pro bono basis for children seeking Stage 2 and Stage 3 Gender Dysphoria treatment.
If you are seeking legal assistance in relation to Gender Dysphoria treatment or you have any queries relating to the law in this area, please contact a member of our experienced team for further information.