Gender Dysphoria: He/she/they – who has the final say?

KEY TAKE-OUTS:

• ‘Gender dysphoria’ is a clinical concept used to describe when a person has a lack of connection to their biological sex assigned at birth and experiences discomfort about how their body and gender is perceived by the social world.
• A child can provide consent to undergo medical treatment without their parent’s consent if they are considered ‘competent’, which means that the child must demonstrate “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).
• It is not necessary for the court to approve of the medical treatment if there is a consensus amongst the child, each parent and all the medical practitioners involved that the child is ‘competent’ according to the Gillick test and they do not dispute the child’s diagnosis of gender dysphoria (Re Kelvin [2017] FAMCAFC 258).

The latest HBO series of ‘Euphoria’ has sparked controversial conversations across the nation about the confronting commentary of high school students trying to navigate issues in the modern world – drugs, sex, gender, identity, social media and love.

Interestingly, one of the main characters known as ‘Jules’ is a proud seventeen-year-old transwoman that experienced gender dysphoria during her childhood. This led to Jules undergoing treatment to transition from a male to a female when she was thirteen years old. The show insinuates that Jules’ parents, who had later separated, had differing views about Jules’ struggle with her gender and identity.

Thus, this begs the question – How are parenting disputes resolved in Australia when a child experiences gender dysphoria and wishes to transition into the opposite sex?

‘Gender dysphoria’ is a clinical concept used to describe when a person has a lack of connection to their biological sex assigned at birth and experiences discomfort about how their body and gender is perceived by the social world.

In a general sense, children who experience gender dysphoria can undergo the following treatments:

• Stage 1 – involves the individual taking puberty blockers (the treatment is reversible).
• Stage 2 – involves using gender affirming hormones (estrogen or testosterone) to physically change the body to the individual’s desired gender.
• Stage 3 – involves the individual undergoing surgery (typically performed during adulthood).

According to section 61B of the Family Law Act 1975 (Cth), each parent of a child who has not attained the age of eighteen has parental responsibility of the child, irrespective of whether the parents have separated or remarried. Parental responsibility refers to the legal duties, powers, responsibilities and authority that parents have in relation to their children. This may extend to parents providing consent for their child undergoing medical or surgical procedures on behalf of their child, provided that it is in the best interest of the child.

However, some medical procedures fall outside of the scope of parental consent and will require approval from the court before proceeding (Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s Case) (1992) 175 CLR 218)

The case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 established the ‘competency’ test to determine whether a child can provide consent to undergo medical treatment without their parent’s permission. For a child to be considered ‘competent’, they must demonstrate “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

Thus, it is not necessary for the court to approve of the medical treatment if there is a consensus amongst the child, each parent and all the medical practitioners involved that the child is ‘competent’ according to the Gillick test and they do not dispute the child’s diagnosis of gender dysphoria (Re Kelvin [2017] FAMCAFC 258).

In the case of Re: Imogen (No. 6) [2020] FamCA 761, a teenager known as ‘Imogen’ (formerly known as ‘Thomas’) was diagnosed with gender dysphoria by her psychiatrist. Imogen was aged sixteen and eight months old when proceedings were initiated in the court. Imogen had completed stage 1 of taking puberty suppression medication and expressed a strong desire to commence stage 2, which involved irreversible gender affirming hormones.

Imogen lived with her father on a full-time basis and she had not spent any time with her mother for a period of two years. Imogen’s father was supportive of her progressing to stage 2, however her mother disputed her diagnosis and argued that Imogen was not competent to sufficiently understand the irreversible nature of the treatment and was unable to assess the risks associated with progressing to stage 2. The case also involved an Independent Children’s Lawyer (ICL) that sought orders to the effect of Imogen being competent to consent to stage 2 of the treatment.

The psychiatrist assessed Imogen as ‘competent’ on the following basis:

• Imogen could comprehend existing and new information about the treatment;
• Imogen could explain the nature of stage 2 treatment in alignment with her level of maturity and education for her age;
• Imogen could identify the advantages and disadvantages of the treatment;
• Imogen could weigh up the advantages and disadvantages to make an informed decision about whether she should progress to stage 2;
• Imogen understood that the treatment may not resolve the phycological and/or social issues she was experiencing prior to commencing the treatment; and
• Imogen did not demonstrate an impaired judgment in providing consent regardless of the temporary factors that could have impacted or influenced her decision making.

Justice Watts of the Family Court of Australia found that Imogen was competent to make medical decisions relating to the treatment for her gender dysphoria in accordance with Gillick competency test and ordered that she could progress to stage 2 of treatment.