You web browser may not be properly supported. To use this site and all its features we recommend using the latest versions of Chrome, Safari or Firefox

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.

The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.

Thank you for your feedback.

Related blog posts

Family Law
Is your inheritance protected?

Once you have made the choice to separate, it is likely you have started the difficult process of deciding how to divide your assets. For most people, this process begins with a ‘yours’ and ‘mine’ approach, whereby you separate assets into certain baskets depending on who they belong to. Regardless of your process, it is vital at this stage to receive legal advice to ascertain exactly what it is you are entitled to. It is possible what you want, and what you are entitled to, may be two very different realities. The Family Law Act gives the family courts broad discretion to make orders in relation to financial cases, including orders for dividing assets between parties. Whether you...

Istock 476824114 Blog
Family Law
Four key facts you need to know about your property settlement

When a marriage or a de facto relationship ends, the parties need to finalise their financial ties with one another. This may involve the transfer of ownership of real estate, cash, superannuation or other property from one party to another. For example, if the matrimonial home is in joint names the parties may agree that the house be sold and the proceeds divided. Alternatively, the parties may agree that one party receives the house and makes a cash payment of some nature to the other party to ‘buy out’ their interest. When you are separating, it is important to get legal advice from a Solicitor specialising in family law, in order to determine your entitlements. Any agreement reached...

105625090 Blog
Family Law
Can I change the locks?

“Can I change the locks?” – This must be one of the most common questions addressed by any family lawyer. The simple answer to whether a party going through separation can change the locks on a property they are living in is usually “yes”. If there is no court order which affects that person’s right to occupy the property, then in most circumstances there is little prohibiting a party from changing the locks. However the position can differ slightly depending on, which party legally owns the property. Where the property is owned by both parties Where the property is owned by one party Where the property is leased to you In all circumstances Perhaps the question asked should not...

Istock 475237296 Blog

We're here to help

Start your online claim check now. Or, if you have a question, get in touch with our team.