Intelligent and insightful teenager Lucas, had the support of his (separated) parents, psychologist, psychiatrist and endocrinologist to undergo stage two treatment for gender dysphoria.
Yet, as a result of the 2013 decision Re Jamie, Lucas had to obtain permission from the Family Court so that he could start stage two treatment under the guise of assessing whether Lucas was ‘Gillick competent’.
Gender dysphoria and the law
Gender dysphoria is a condition in which a child feels their identity and gender are not matched with his or her biological sex. Because of this, the child can suffer clinically significant distress or impairment in social functioning.
The Court in Re Jamie decided that stage two treatment for gender dysphoria requires the authorisation of the Court, even where all involved supported the treatment. When making this decision, the Court in Re Jamie relied on Marion’s case which said that court authorisation is needed because of the significant risk of making the wrong decision and because the consequences of a wrong decision would be particularly grave. If a child is what is known as ‘Gillick competent’, then the child is able to make their own decisions with respect to treatment for Gender dysphoria. The problem remains however that even with support from their parents and their treatment providers, the question of whether a child is Gillick competent, can only be determined by the Court.
In the case of Lucas, Justice Tree opined that a distinction can be drawn between stage two treatment for gender dysphoria and the sterilisation procedure in Marion’s case because the sterilisation procedure was not therapeutic in nature. To the contrary, stage two treatment for gender dysphoria is therapeutic. Justice Tree took the view that cases such as the significant risk of making the wrong decision or the consequences of the decision being grave should not require consideration by a Court where the medical procedure in question is therapeutic.
In spite of it being unequitable and inhumane to require Lucas to obtain Court authorisation, Justice Tree acknowledged that he was clearly bound by the principle espoused in Re Jaime and gave Lucas the administrative sanction he required to undergo treatment. Poignant comments made by Justice Tree should give pause for thought.
His Honour said, ‘as if the general turmoil and challenges which being a teenager in our modern world generates are not enough, the additional burden of requiring an already vulnerable and highly marginalised group to individually litigate to vindicate their identity seems inhumane.’
All Court applications seeking for approval for a child to undergo stage two treatment for gender dysphoria in the last five years have been successful. This means that the principles espoused in Re Jamie, are unlikely to be challenged by a Court empowered to effect a change.
Justice Tree called for an ‘urgent need for statutory intervention in order to undo the consequences of Re Jamie. The sooner that children such as Lucas and their families do not have to endure the ordeal of litigation in order to get on with their lives, the better.’
A change in this aspect of family law would be a welcome step in improving outcomes for children with gender dysphoria.