Changes to the Law for our “Modern Family”

Now no need for Court approval in Childhood Gender Identity Disorder cases

Yesterday five members of the Full Court of the Family Court in “Re Kelvin” reconsidered the law in the area “Childhood Gender Identity Disorder” (or put simply a child identifying as being unhappy with his or her gender as assigned at birth). Until yesterday the law was as determined in the previous Full Court decision of “Re Jamie” which had been delivered in July 2013. “Re Jamie” confirmed that although the Family Court did not need to be involved or authorise medical treatment for a child, if that treatment was reversible (stage 1 treatment) the Court did need to be involved if the treatment for the child was irreversible (stage 2 treatment). The Court needed to authorise that stage 2 treatment (classified as a “special medical procedure”) even if the parents and the child consented to it. The Court also needed to ascertain whether the child had the capacity to understand the significance of the decision about the medical treatment (ie whether the child is “Gillick competent”) before such irreversible treatment could be authorised.

The decision in “Re Kelvin” changes the law and has been referred to by the Family Law Section of the Law Council of Australia today as “a historic judgment”. A child can now start irreversible hormone treatment to change their sex with the consent of his or her parents and the medical profession/medical expert. The Court no longer needs to be involved if everyone consents. The Court said “The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court.”

“Kelvin”, who is now 17, was born a female but had identified as a boy since the age of 9.

All the submissions made to the Full Court (bar the one from NSW Department of Family and Community Services) were in favour of a change to the law. Those supporting the change included the Federal Attorney General, the Human Rights Commission and Melbourne’s Royal Children’s Hospital. The submission by the NSW Department of Family and Community Services was that the Court still should have a role to ascertain a child’s competence when it involved irreversible treatment due to the significant consequences of the decision (eg what if the child changes his or her mind after irreversible surgery).

It was reported in the Sunday Telegraph two months ago that “the number of children who have applied to the Family Court to change sex has exploded 600% in the three years to 2016”.

Interestingly in the article in the Sunday Telegraph, Carlotta, (referred to as Australia’s first public transsexual) who had a sex change in the early 1970’s was quoted as saying “I don’t agree with it. I’ll probably get shut down for saying it but I don’t think you should muck around with the body like that. Let the chromosomes take over first”.

Following so closely upon proposed changes to the law in relation to same sex marriage currently before our parliament, this change to the law in relation to children suffering “gender dysphoria” represents a recognition by the Family Court of the significant changes to medical treatment and procedures in recent times and to the nature of changes in our modern family.

This post was written by Maurice Edwards, Accredited Family Law Specialist with Watts McCray Lawyers. Maurice appeared on the SBS Insight Program when it featured “gender dysphoria” at the time of the “Re Jamie” decision by the Full Court in 2013.