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Transgender children and the Family Court

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In addition to determining disputes about parenting arrangements and the division of property for separating couples, the Family Court is also charged with making decisions regarding a range of “special” medical procedures sought by children.  One of these procedures is the treatment of gender identity disorder (GID), also known as gender dysphoria.

GID in children is commonly treated with a range of hormones in what the Court has determined are two “stages”. The first stage, which is reversible, has been held not to require any Court authorisation prior to treatment commencing.  The second stage, which may require surgery to reverse, currently requires a Court to either find that the child is “competent” to consent to the treatment or, if the child is not competent to make a decision, that the treatment would be in the best interests of the child.

In recent comments made to Four Corners Family Court Chief Justice Diana Bryant expressed a view that it might be time for the High Court to reconsider whether “stage two” treatment of GID in children should require Court involvement.  Medical experts have raised a range of concerns about requiring Court intervention for stage two of GID treatment, including those of costs and delay.  Doctors have also argued that the assessment process conducted by medical professionals prior to commencing treatment is very rigorous already and that the risks involved with treatment not proceeding (in particular self-harm) outweigh what they consider to be a less significant risk of future regret about the treatment.

Chief Justice Bryant’s comments come as community awareness of transgender issues increases and the number of children presenting with GID each year continues to grow.  It is likely that any change to the existing requirements for children seeking approval for treatment of GID through the Courts will first need to be reflected in wider community sentiment.

For further information about Family Law, please contact our Family Law team by email family@mst.com.au or by telephone +61 8540 0200.