Courts

Re: Kelvin – Family Court consent no longer required for treatment of Gender Dysphoria.

by Jack Hensley

Ever since the decision in Marion’s case, the court has been required to authorise certain procedures that fall outside the bound of parental responsibility.  Australia is the only country in the world that requires the approval of the Court for cross-sex hormone treatment for transgender adolescents.

In a landmark decision Re: Kelvin,  the Full Court of the Family Court of Australia has ruled that persons under the age of 18 who experience gender dysphoria and wish to undergo hormone treatment can now do so without the approval of the Family Court.

The case involved a 16 year old transgender teenager who was born female but transitioned to male socially in year 8 with the support of both of his parents. Kelvin’s father brought an application to the Family Court to approve Stage 2 treatment for Gender Dysphoria which involves the administration of hormones which result in irreversible physical change.

At first instance, the trial Judge found Kelvin to be “Gillick competent” to consent to the administration of testosterone to initiate physical changes. The question then stated for the opinion of the Full court was whether or not the law should require court approval for Stage 2 hormone treatment, particularly in circumstances where the Family Court has allowed stage two gender affirming treatment in 62 out of 63 cases between July, 2013 and August, 2017.  The Full Court departed from its reasoning in Re: Jamie and instead held that if the child consents to the treatment, their medical practitioners agrees that they are competent to give consent to the treatment and the parents make no objection, then it is no longer mandatory to apply to the Family Court for a determination as to whether or not the child is “Gillick competent”. The Full Court stated in its judgement that “The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the court,’’

Referencing the study conducted by Fiona Kelly in 2016, the Full Court notes in their Judgement that the average delay experienced by families seeking a declaration as to the competency of their child to consent to treatment has been on average 8 months from the time the process was initiated to the child commencing treatment. According to the study, the average cost was found to be between $8,000 to $30,000. Considering these significant barriers, there is no doubt that the decision in Re: Kelvin will improve the physiological and physical wellbeing of transgendered youth throughout Australia,

Competent transgender adolescents will now be able to make their own informed decision about the administration of stage 2 hormone treatment, in consultation with their clinicians and parents.

You can find the Judgement of the Full Court of the Family Court of Australia here.