Transgender children and the Family Court

Transgender children and the Family Court -

On 31 March 2021 we recognise Transgender Day of Visibility, an international celebration of trans pride and awareness.

In support of Transgender Day of Visibility, it is timely to look at the progress in the Family Court over the last several years regarding transgender children and their legal right to access medical treatment.  

For many years, transgender children and their families were required to apply to the Family Court for approval for a transgender child to receive any medical treatment to affirm their gender. Prior to 2013, a transgender child could not start any medical treatment to affirm their gender without Court approval. This legal barrier made it extremely difficult, and uncertain, for many transgender children to obtain the medical treatment they required.  

In 2017 and 2018 there were two key cases that changed the legal landscape for transgender children in Australia. The first was the 2017 case of Re Kelvin. In this case the Full Court of the Family Court established that a child under the age of 18 could commence taking gender affirming hormones (stage 2 treatment) without first seeking Court approval but only if all of the relevant parties agreed to this medical treatment. The relevant parties being the child, both parents and the child’s medical professionals.  

In 2018, in the case of Re Matthew, the Family Court broadened the decision in Re Kelvin establishing that a transgender child could undergo stage 3 treatment, including surgery, without needing the Courts approval if the child, both of their parents and their medical professionals all agreed that this was the most appropriate treatment for the child.  

But what if one of the child’s parents does not consent to the medical treatment?  

Both parents must provide their consent to a transgender child commencing medical treatment to affirm their gender to avoid going to courtIf there is a dispute between the child’s parents about medical treatment, commencing Court intervention is still required or the child must wait until they are 18 years of age to start medical treatment 

This situation was considered in 2020 in the case of Re Imogen. In this case Imogen (a pseudonym) was seeking stage 2 treatment to affirm her identity. Imogen’s father supported the treatment, but Imogen’s mother opposed the treatment and withheld her consent.  Justice Watts found that in Imogen’s case it was in Imogen’s best interests to receive the medical treatment, despite Imogen’s mother’s opposition. This was based on substantial evidence including evidence that Imogen was formally diagnosed with Gender Dysphoria and Imogen was sufficiently able to fully understand the impact of the medical treatment. The Court Ordered for Imogen to receive the gender affirming medical treatment.  

Considering the decision in Re Imogen, the Court can make Orders for a transgender child to commence medical treatment to affirm their gender without both parents consent, however this will only be in certain circumstances.  

It is important that, if such Orders are being sought, appropriate medical and legal advice be obtained before commencing any Court proceedings.  

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By Fiona Johnson

Associate Solicitor

Accredited Specialist (Family Law)