Court Order No Longer Required for Hormone Treatment

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Family Court of Australia

Before 30th November 2017, Australian residents under the age of 18 were required to seek court approval before being eligible for hormone treatment to change their gender.

According to Dr Michelle Telfer of Melbourne’s Royal Children’s Hospital, Australia was the “only country in the world that require[d] court involvement” in that process.

But last Thursday, the full bench of the Family Court of Australia made what’s been described as a ‘landmark ruling’ for the rights of transgender children.

The ruling that a court order is no longer required in this process is applicable where there is no dispute between the parents or doctors regarding the desirability of the treatment.

Gender Dysphoria

Gender dysphoria is where a person’s emotional and psychological identity is the different to their biological sex.

The terms ‘transgender’ and ‘gender diverse’ are often used to describe the situation, and statistics suggest that 1.2 percent of Australian children of school age identify as transgender.

Many seek to take action to change their gender as they get older, and medical research suggests that if hormone treatment is commenced before the “significant onset of puberty”, the outcomes are the most favourable both physically and psychologically.

Court intervention

Before last Thursday, young people had to apply to the Family Court for approval to obtain hormone treatment. The process was costly, time-consuming and perhaps only benefited the financial interests of family lawyers.

As a result of the requirement, some teenagers were reported to have turned to the internet to buy hormone treatments on the black market, which they self-administered without specialist medical supervision.

Advancement in transgender rights for children

In reaching the landmark decision, the five judges of the Family Court acknowledged the “increased knowledge of the risks associated with not treating a young person”, adding “It is readily apparent that the judicial understanding of gender dysphoria and its treatment have fallen behind the advances in medical science.”

Dr Telfer called the decision “the greatest advancement in transgender rights for children and adolescents in Australia”.

“Transgender adolescents will now be able to access the treatment that is best for them, making decisions in collaboration with their parents and their doctors without the delay and the distress that the court system imposes on them and their families” she remarked.

The proceedings

The circumstances which led to the decision involved a 17-year-old known as “Kelvin”, who was born female but had identified as male since the age of nine.

Lawyers for Kelvin’s father argued that the court’s role in the process added no value, and that young people should only require the approval of medical experts and their parents when seeking Stage 2 treatment, which involves the administration of hormones orally or via injection.

A judge had already determined that Kelvin was competent and fully understood what was involved in starting that therapy.

Past applications

Since 2013, the Family Court has dealt with 63 cases involving applications for stage 2 or 3 treatment for gender dysphoria. In 62 of those cases, the court allowed treatment.

While the court had previously been involved in Stage 2 treatment decisions, it was rarely involved in decisions for Stage 3, which usually involves surgery and is most likely to occur after a person turns 18.

The Royal Children’s Hospital says the number of people diagnosed with gender dysphoria is growing, and that by being involved, the courts only put more stress on the finances and emotional well-being of young persons and their families.

Of the patients referred to the Royal Children’s Hospital in the past few years, about 96 per cent diagnosed with gender dysphoria continued to identify as transgender into late adolescence. The hospital reported that no patient who commenced stage two treatment had sought to transition back to their birth sex.

Changing birth certificates

Last year, Victoria announced it would be making changes to make it easier for people to change the sex on their birth certificates.

Under the new laws, descriptors include the traditional options of male and female, and also specify a gender diverse or non-binary descriptor.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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