For parents of a transgender child, there can be a lot to deal with, and many challenges to navigate. From protecting their child, to the emotional impacts of being transgender, to the medical treatments that can be considered. There are also a number of legal issues and interventions that parents need to be aware of if their child identifies as transgender. What are those issues and what is the current legislation?
Transgender diagnosis
When a person is Transgender it means they are suffering from Gender Dysphoria (previously known as Gender Identity Disorder).
Gender Dysphoria is when a person has a persistent and profound discomfort with their biological sex and a strong identification with the gender of the opposite sex. Such a condition should only be diagnosed by a medical practitioner who will seek to determine that at least two DSM-5 criteria are present and have been for at least six months, and these criteria are causing significant distress to the Child. This generally includes any of the following:
- a significant difference between their own experienced gender and their secondary sexual characteristics
- strong desire to be rid of their secondary sexual characteristics or prevent their development
- wanting secondary sexual characteristics of the opposite gender
- wanting to be treated as the other gender
- the strong belief that they have the feelings/reactions of the opposite gender.
The considerations for diagnosing Gender Dysphoria differ for children, adolescents and adults however cases generally present at adolescence as for many the physical maturation and growth seen during puberty is highly distressing, a cause of disgust, and may lead to mutilation.
It is due to these risks for a child or adolescent’s physical and mental health that parents need to be proactive in ensuring professional advice is sought as soon as practicable.
After a diagnosis
Once diagnosed there are 2 stages of hormone treatments which occur along with ongoing psychological counseling.
Stage 1 is the suppression of puberty; this stage is fully reversible and does not require legal intervention to be undertaken when done with the consent of the parents and at the recommendation of the medical practitioner. If there is a dispute however an application to the Court can be made.
Stage 2 is the administration of the alternate gender hormone and in addition to causing irreversible biological changes this process also has health risks such as impaired liver function, increased risk of some cancers and blood clots / artery blockages.
Until 2017, due to the irreversible nature and risks of Stage 2 and that the procedure is being undertaken on a minor who is assumed to be unable to legally consent, legal intervention was required in all cases and an application to the Federal Court to commence treatment had to be made.
The new Court decision of Re: Kelvin [2017] FamCAFC 258 has changed the Courts position entirely.
In an attempt to minimize the Courts need to intervene in what is a highly personal and emotionally charged decision for parents and their children the Court has determined that where:
- Stage 2 treatment of a child for Gender Dysphoria is proposed;
- The child consents to the treatment;
- The treating medical practitioners agree that the child is competent (using the legal test of Gillick Competence) to give that consent; and
- The parents of the child (being all persons having parental responsibility for the child) do not object to the treatment
The Courts consent to the treatment is no longer required.
The Court must however provide an Order approving treatment if the above criteria are not met in full including the consent of both parents.
The substantial reason for this change appeared to be two-fold, the first being that the medical evidence provided showed significant advancement in treatment for gender dysphoria and Stage 2 treatment was no longer considered irreversible.
The other consideration for the Courts was one of policy, the need to allow families, with the assistance and advice of appropriate professionals, to be able to independently manage the health and welfare of the child without unnecessary intervention. Comments around this issue had been made by judges of the Court in the lead up to this decision with the judiciary expressing concern about the stress and delay being caused to children and their families through the need to make an application to Court for Stage 2 treatment.
Gillick Competence
Gillick Competence requires that a Court would be satisfied that the child has a competent understanding of the consequences of their decisions.
In the case of a transgender child seeking treatment this would be an understanding of the impacts of the procedure to be undertaken.
It is a requirement of the test that the child must be of an appropriate age and maturity to be making the decision on their own behalf, not under the influence of another.
Given the need not to seek the Court’s involvement is a change to the longstanding principles for Gender Dysphoria treatment, to ensure adequate protection, it is recommended that legal advice be sought in the first instance.