Gender Re-assignment of Children: The Role of The Family Court

Blog post by Daniel Sampson

Justice Diana Bryant, the Chief Justice of the Family Court of Australia, has expressed her view that applications with respect to transgender children should go before the High Court for further determination as to whether the Court should continue to determine this issue. The view is based on a growing body of medical and psychological research with respect to the varied effects of gender re-assignment and whether the Court is the appropriate forum for such matters.

In Australia, where the re-assignment of the gender of a child is concerned, an application must be made with respect to the medical procedure required for re-assignment. This is because the legal capacity of a child is not that of an adult. The Courts are guided by the Gillick competency test or Gillick principle, which is ultimately a test of whether a child is able to consent to treatment without parental permission or knowledge. This will depend on the child’s relative maturity and ability to understand what the procedure will do.

Under the current law, the Court will be guided by the expert evidence of medical practitioners and psychologists as well as evidence of the Applicant to determine whether the gender re-assignment is in the child’s ‘best interests’.

There is reportedly growing research with respect to the increase of cases with respect to the gender re-assignment of children. The comments of the Chief Justice can therefore be seen as an acknowledgement as to whether the Court should continue to be involved in what is a serious medical and mental health issue.

Cases

Gillick v. West Norfolk and Wisbech A.H.A [1986] AC 112

A Decision of the House of Lords in England that established the ‘Gillick test’ that parental power to consent to medical treatment diminishes as the child’s capacity and maturity grows.

Secretary, Department Of Health And Community Services v JWB and SMB (1992)175 CLR 218

This was a High Court case, accepting as good authority Gillick [1986] and establishing further principle for the Court exercising its jurisdiction in cases where serious medical cases required the intervention of Court, not only the parents. This was a matter regarding the sterilisation of an intellectually disabled child. The Court ruled that the parents required an order of the Court and that the Court had proper jurisdiction to authorise such a procedure. An irreversible medical procedure on a child will require the intervention of the Court.

In the matter of the welfare of A (a child) (1993) 16 FamLR 715

This was an Application by A’s mother for male gender re-assignment for her 14 year old daughter. The Court granted authorisation for the procedure and identified gender re-assignment as the type of procedure that ‘stand(s) in the category of procedures which require the authorisation of a court’ (In re Marion (1990) 14 FamLR at p 448).

Re Marion(No 2) (1994) 17 FamLR 336

This was a sterilisation case discussing the relevant factors for the Family Court to consider in determining whether a procedure was in the child’s best interests such as:

• The condition requiring treatment or procedures;
• Nature of the treatment or procedure;
• Reason for the proposed treatment;
• Alternative procedures and treatment;
• Waiting of the proposal against the alternatives;
• Physical, psychological and social implications of the treatment;
• Risks in not authorising treatment; and
• Views of parents, guardians, carers and the child.

Re: Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297

Alex was legally a girl and in the care of the state. Alex was requesting treatment for gender reassignment. The Court considered the principles in Marion and applied them to Alex’s case. They held it was in Alex’s best interest to authorise the treatment. There was also an acknowledgement by Chief Justice Nicholson of a child’s right to live with a transgender identity under international human rights law.

Re: Jamie [2013] FamCAFC 110

Jamie, an 11 year old, was diagnosed with childhood gender identity disorder. Jamie was undertaking stage one of a two stage hormonal replacement process. While stage two was irreversible, stage one was not. At first instance Justice Dessau ruled that the procedure required the intervention of the Court, however the Full Court determined that the decision fell within the parental responsibility of the parents. Jamie was in agreement with the treatment, but the protection afforded to irreversible procedures was not required to be exercised by the Court.

Jamie’s case was the subject of the ABC’s Four Corners program that aired on 17 November 2014 – for more information click here.