In Re Ash (No 4) [2024] FedCFamC1F 777 (Re Ash), the Federal Circuit and Family Court of Australia addressed whether a 16-year-old child, Ash, who was born female, should be permitted to commence testosterone treatment. This issue was closely tied to the allocation of parental responsibility and whether it was in the best interests of the child for the applicant to be afforded sole parental responsibility, including any decision in relation to the administration of stage 2 hormone treatment.

Facts

The proceedings concerned two children, aged 14 and 16 years. This blog will speak solely to the allocation responsibility of Ash, the 16 year old as the proceedings predominantly concerned whether he should be permitted to have testosterone administered to him.

At around age 10, Ash began articulating he identified as gay, queer or different. In late 2019, Ash articulated that he was transgender. From early 2020, Ash commenced living as male. He endured transphobia. In early 2023, Ash was formally diagnosed by the N Clinic as having gender dysphoria. In 2022, Ash wished to commence taking puberty blockers and commence the administration of testosterone, but the respondent withheld their consent.

On 3 October 2023, in light of the respondent’s refusal to allow Ash to undertake gender affirming treatment, the applicant commenced proceedings, seeking sole parental responsibility for both children.

The applicant, supported by the Independent Children’s Lawyer, sought sole parental responsibility to enable the administration of testosterone to Ash. The respondent, however, sought equal shared parental responsibility, which would effectively prevent the treatment as they were opposed to the administration of testosterone to Ash.

Decision

The question whether Ash should receive testosterone centred on whether its administration aligned with Ash’s best interests. This involved a careful balancing of the relevant risks.

Justice Tree ruled in favour of allowing Ash to undergo testosterone treatment, noting the following key considerations:

• Ash’s persistent wish for gender-affirming treatment:
  • Lived consistently as a male for years.
  • Experienced severe transphobic bullying.
  • Adopted a “stealth” (not disclosing he is a transmale) identity, incurring emotional, social, and educational challenges, including a switch to distance education.
  • Underwent female puberty.
  • Suffered sadness due to the loss of his relationship with the respondent.
  • Used a chest binder and layered clothing to hide female physical traits.
  • Ash’s desire for treatment is considered genuine, thoughtful, and enduring.
• Testosterone treatment is expected to alleviate Ash’s gender dysphoria.
• The risks associated with testosterone treatment are neither necessarily nor obviously unacceptable.
• The applicant, Ash’s primary caregiver, supports the treatment.
• There are no alternatives with stronger scientific support for managing gender dysphoria than medical gender-affirming treatments.

Justice Tree based the decision on a variety of authoritative sources, including published standards of care, government policies, expert witness reports from child and adolescent psychiatrists as well as a general paediatrician.

Justice Tree acknowledged the risks involved, noting that the administration of testosterone may not fully alleviate Ash’s dysphoria and could lead to unintended side effects, such as pain.

With respect to the allocation of parental responsibility, Justice Tree held that:

“now that the issue of testosterone has been resolved, the simple answer to who should have parental responsibility for Ash is that it likely doesn’t matter, because there is probably no other major decision left to be made before he turns 18.”

Justice Tree ordered that the applicant have sole parental responsibility, providing that it would be in Ash’s best interests. This decision would enable the applicant to make decisions regarding testosterone administration.

Ultimately, the case of Re Ash highlights the court’s discretion in balancing a child’s autonomy with parental rights in decisions regarding medical treatment. Central to all parenting disputes is the child’s best interests.

Nicholes Family Lawyers have expertise advising and assisting with matters concerning special medical procedures for children.

Please contact our office at 03 9670 4122 to arrange an initial consultation.