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By Lauren Biniares, Lawyer at Watts McCray, Sydney.
People under the age of 18 can only access gender-affirming medical treatment with consent from both of their parents or carers or, failing this, through a Court order.
In the Judgment of Re Imogen 2020, it was clarified that gender-affirming treatment could be commenced in Australia for people under 18 only when there is no dispute between parents or those with parental responsibility, the medical practitioner and the young person themselves with regards to:
“Gillick competence” comes from the English case of Gillick, which provides that a minor is capable of giving informed consent when they achieve sufficient understanding and intelligence to enable them to understand fully what is proposed, even if they are under the age of 18.
As per TransHub, medical practitioners seeing patients under the age of 18 are unable to administer puberty blockers or hormonal treatment without first ascertaining whether or not a child’s legal parents or guardians consent to this. If there is a dispute, the doctor cannot administer puberty blockers, hormones or surgical intervention without authorization of the Family Court.
If orders are sought, the key issue the Court will consider is whether or not to authorise medical treatment involving the administration of hormonal therapies that will only begin what is known as a “sex change.” In order to reach this decision, the Judge must be satisfied upon clear and convincing evidence that the proposed treatment is in the child’s best interests (In Re Marion (No 2) (1994)).
In one case, there was an application by the mother of a 14-year-old child for the Family Court to authorise sex reassignment from female to male for the child. The child was born a genetic female. However, she felt she would be better as a male.
The Court concluded that there were clearly features of the proposed procedures, which resulted in the necessity for court authorisation for this to occur. In this case, the fundamental question on which the court’s decision turned was: what would the consequences be if the Court did not grant the application? Ultimately, all the evidence persuaded the Court that it was overwhelmingly in this child’s best interests for the court to grant the application and hormone therapy to commence.
In conclusion, the gender reassignment process can commence at any stage so long as there is consent on the Gillick competence of the adolescent, a diagnosis of gender dysmorphia and a proposed treatment for this. However, without this consent and criteria being satisfied, Court intervention is necessary for treatment to commence in any capacity.
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