Australia is the only country in the world which requires trans children to obtain permission from a court for Stage 2 treatment. Is it time for a rethink?
The law has always recognised that a parent is able to make medical decisions on behalf of their children, until that child is able to make those decisions themselves. Whether a child has reached the stage they are able to consent to their own medical treatment must be decided on a case-by-case basis.
The Court should be reluctant to interfere with a parent’s right to make medical decisions on their child’s behalf. Parents are likely to know their children better than anyone else and usually, more intimately than a court can.
However, the Court recognises that there are rare occasions where even sincere and well intentioned parents are unable to make medical decisions on behalf of their children. Marion’s Case was an example of a special circumstance where parents of a severely intellectually disabled woman were unable to make the decision to consent to their daughter undergoing a sterilisation procedure without the Court granting permission.
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. Treatment for gender dysphoria has been treated in a similar way to Marion’s Case by the courts because it is a ‘special medical procedure’.
Stage 1 treatment for a child suffering from gender dysphoria involves suppressing puberty with hormone based treatment so the child maintains the appearance and features of their affirmed gender. The Court in Re Jamie found that the Court did not need to decide whether or not Stage 1 treatment could be provided because the child, her parents and medical practitioners all agreed the treatment was required. The child and her parents were able to decide for themselves.
Stage 2 treatment involves actively transitioning gender and is treated in a different way by the courts because of the irreversible effects and some health risks. The Court decided that neither Jamie nor her parents had the capacity to make the decision regarding Stage 2 treatment and instead, the Court found that only they (the Court) had the capacity to make a such a decision.
Why does the Court need to get involved?
The Court is the only body able to decide 'Gillick Competency' – a term used to describe if a child is competent to make their own decisions. If the child is Gillick competent and the parents and treatment providers agree, the Court does not have to decide regarding treatment. If however the child is not Gillick competent, or if the parents do not agree, then the Court has to decide whether to approve treatment.
In my opinion it’s unfair to require children who are capable of consenting to their own medical treatment – or whose parents consent to the treatment – to go to court and have decisions regarding medical treatment imposed upon them.
Children who are already at risk of imminent harm as a result of gender dysphoria, should not be subjected to court scrutiny, expense and delay when they are able to make decisions for themselves or with their parents.
In the recent case of Jacinta, the Court made the decision that Jacinta was able to consent to Stage 2 treatment herself. I applaud the declaration of the Court affirming that the 17-year-old Jacinta was indeed capable of choosing her own treatment. However, it remains that Jacinta and her mother were forced to engage in an expensive, lengthy and humiliating court proceeding in order to undergo treatment that was recommended by her treating medical specialists.
A change in this aspect of family law will significantly improve the outcomes for children with gender dysphoria.