Gender Dysphoria in Family Law

This article explores gender dysphoria regarding children and how this is considered in family law cases.

First, we must understand the terms gender dysphoria and transgender.

Gender dysphoria and transgender

Gender dysphoria is defined as a medical condition in which psychological distress comes from an inconsistency between one’s biological sex and gender identity (one’s psychological sense of their gender). The diagnostic process for children, adolescents and adults is set out in the ‘Diagnostic and Statistical Manual of Mental Disorders, (5th edition)’ (DSM-5).  A diagnosing physician must observe specific symptoms for at least 6 months and must observe clinically significant distress or impairment in social, occupational or other important areas of functioning.

Once diagnosed, treatment for gender dysphoria can include psychological counselling, hormone therapy and/or surgical reassignment therapy. Hormone and surgical reassignment therapies for gender dysphoria are usually referred to in treatment stages:

• Stage 1: puberty blockers;
• Stage 2: gender affirming hormones; and
• Stage 3: gender affirmation surgery.

Transgender refers to a person whose biological sex (external genitalia and hormones) does not match their gender identity.

Not all transgender people experience gender dysphoria and not all people who experience gender dysphoria are transgender.

How does this relate to children and parenting matters?

Under Australian law, parents generally have the right to consent to medical treatment and procedures on behalf of their child.

However, there are specific medical procedures that fall beyond parental responsibility and require authorisation from the Federal Circuit and Family Court of Australia (the Court), including where there is a dispute about a proposed treatment for a child with gender dysphoria.

What is parental responsibility?

Each parent has parental responsibility for a child under the age of 18, subject to any orders made by the Court. Parental responsibility relates to a parent’s ability to make decisions about major long-term issues that impact their child including, but not limited to, education, religion, health and medical matters.

Special Medical Procedures

An exception to parental responsibility to consent to medical treatment occurs when a procedure is considered a “special medical procedure”.

Special medical procedures can be characterised as procedures that are not clinically necessary. They are often irreversible and invasive in nature, and the consequences of a wrong decision can be particularly grave.  For example, this may include the sterilisation of children with intellectual disabilities, hormonal treatment for gender dysphoria or bone marrow donation.

If it is proposed that a child undergo a special medical procedure, the Court is required to decide whether or not it ought to proceed on the basis of the child’s best interests. In these circumstances, an application can be made to the Court by a parent, a person who has a parenting order in relation to a child, the child, an Independent Children’s Lawyer, or any other person concerned with the welfare and development of the child (in some cases, the child’s treating medical practitioner).

What treatment for gender dysphoria requires the Court’s approval?

Before 2017, Stage 1 and Stage 2 treatment for gender dysphoria in children required the Court’s approval (regardless of whether both parents and the child’s treating medical practitioner agree on the treatment).

Stage 3 treatment involves surgically altering one’s body and is generally not available until a child reaches the age of 18.

The Court has since reconsidered this view so that approval from the Court is not necessary for Stage 1 and 2 treatment where:

1. The parents agree on the treatment; AND
2. The child’s treating practitioner agrees to the treatment;  AND
3. The child is able to agree to the treatment (that is, the child is deemed “Gillick competent”); AND
4. The child agrees to the treatment.

The Court’s approval remains necessary for Stage 1 and Stage 2 treatment if a parent or treating medical practitioner disputes:

1. A diagnosis of gender dysphoria; or
2. The proposed treatment; or
3.  The Gillick competence of a child.

In these circumstances, an application must be made to the Court to determine whether or not the treatment is in the child’s best interests.

What does “Gillick competency” mean?

Gillick competency refers to a child having a sufficient understanding of the proposed treatment, and the intellectual capacity to be capable of making their own decision. The Court will determine if a child is Gillick competent on a case-by-case basis, considering various factors, including the child’s age, maturity, intelligence, education, level of independence and ability to express their wishes.

Court process and recent cases 

For more information about the Court process, what information is needed if there is a dispute about gender dysphoria in a child and the development of gender dysphoria cases, please see the article our recent article here.

For information about the rights of transgender parents in family law parenting matters, please see the article here.

How we can help

If you are contemplating or dispute a special medical procedure for your child, such as hormonal treatment for gender dysphoria, we recommend that you seek expert legal advice at the earliest opportunity.

Please contact our Family & Relationship Law team at Coulter Legal to arrange an initial consultation, free of our charge, with one of our experienced lawyers.