The topic of gender dysphoria was recently brought to the forefront of discussion in family law as a result of the determination of the Isaac case. Here, the Family Court in Australia made a declaration to award parental responsibility to a 17-year old to enable him to make his own decisions regarding treatment for gender dysphoria (the child was born a female but identified himself as male). The Court found that the child was competent and capable of making his own medical decisions pertaining to treatment for his condition; in this case a sex change.
Gender Dysphoria or what is also commonly known as gender identity disorder is a condition where mental gender identity (self-perception) does not match biological sex. In Australia, a child (under 18) is unable to obtain treatment for the condition without court authorisation. In deciding whether to grant such authorisation, a court must determine if the treatment would be in the child’s best interests. Determination of best interests can be a complex affair, as courts are required to consider and balance many factors.
Gender Dysphoria and its treatment
Gender dysphoria is associated with clinically significant distress or impairment in social functioning. Apart from the distress of being the ‘wrong’ gender, expert evidence in the field has testified that such cases consistently identify with high risks of depression and suicide if treatment is not allowed. Literature on the topic identifies that treatment for gender dysphoria takes place over a period of time in 2 distinct stages. In the treatment of female children who identify as males for example, treatment is as follows:
Stage 1 treatment is where any steps taken are reversible and usually involve the use of oral drugs to suppress and suspend female pubertal development.
Stage 2 treatment which involves the administration of testosterone to induce male pubertal development is deemed irreversible as the female menstrual cycle is affected and infertility sets in. The treatment also comes with attendant health risks such as breast or uterine cancer, stroke, heart attack and liver dysfunction.
Past cases involving the treatment of gender dysphoria in children have clarified that Stage 1 treatments do not require Court authorisation as that step is reversible with few, if any, side effects. It is not deemed a special medical procedure as it does not “displace” parental authority. When properly advised and informed, parents are in a position to make such decisions. Due to the seriousness and irreversibility of consequences in Stage 2 treatments, cases such as Isaac as well as Re Jamie have established that Stage 2 gender dysphoria treatment in children is one of the special medical procedures which requires Court authorisation even if all parties (parents, medical practitioners and the child) are in agreement about the proposed procedure.
Where there is disagreement between the parties and where there is a question of competency of the child, then the Court must be involved to determine competency and Court sanction is required at any stage.
Determining a child’s competence
In determining whether a child is competent to make decisions about medical treatment and procedures, the Court will primarily look at the child’s maturity and level of understanding regarding the proposed treatment. These standards are commonly known as the ‘Gillick standards of competence’, following a UK House of Lords case. The legal position was summarised to state that any parental rights will yield to the child’s right to make its own decisions when it reaches a sufficient understanding and intelligence to be capable of making up its own mind.
Emphasis will be placed on the views of medical experts and any evidence supporting that the child concerned is indeed competent to make decisions about the treatment that it wishes to undertake to resolve its identity difficulties. In the Isaac case, the Court found the following:
- the Applicant was aware of the changes that would result with his bodily development – increased muscle bulk, change of voice, increase body hair;
- the Applicant was aware of the affect that the testosterone treatment would have;
- the Applicant had detailed discussions with his treating physician about the impact of the proposed hormone treatment and effect on his fertility; and
- the Applicant was aware of his different medical options, the long term consequences, possible side effects and the risks involved in the procedure.
Determining a child’s best interests
Should a child be determined to be incompetent or incapable of making the necessary decisions regarding the treatment proposed or about the condition itself, the Family Law Act dictates that a Court must determine a child’s best interests according to ‘primary considerations’ and ‘additional considerations’. Several Australian cases have thrown light on Australia’s stance on medical treatment of children and what is deemed to be in the welfare of the child.
In Re Shane, after determining that the child was not Gillick competent, the judge considered whether the proposed Stage 2 treatment would be in in the child’s best interests by gathering evidence from the following:
The parents who testified as to Shane’s long-standing identification as a male rather than female from childhood (playing with ‘male’ toys, asking when he ‘could be a boy’, having male friends, dressing up in male clothes, not ‘fitting in’ with his female peers, being extremely distressed
- With the onset of female puberty and the physical transformations and binding his breast tissue);
- The treating psychiatrist who described his consultations with Shane and his continued desire to be male and a diagnosis of gender dysphoria which commenced in early childhood and escalated during early adolescence. The psychiatrist went on to say that Stage 2 treatment “will further reduce the risk of future mental health problems” and that delay would “significantly exacerbate symptoms of social isolation and anxiety and increase the risks of depression…”;
- The endocrinologist and a pediatrics professor detailing the likely outcome of treatment, the risks and health problems, and further evidence that if treatment was not permitted, there was “the risk that Shane might seek to illicitly source testosterone and self-administer which could result in significant adverse physical effects…”; and
- Other medical experts who concluded that there is “no alternatives to the proposed Stage 2 treatment” and that delay in providing the treatment may result in a resurgence of depression.
Having considered all the evidence Murphy J found that he was satisfied that the proposed treatment was in Shane’s best interests and ordered that his parents were authorised to consent to the administration of the necessary drugs.
At Owen Hodge Lawyers, our family lawyers can assist parents in Australia who are looking for information about gender dysphoria in children during family court disputes. We are able to provide you with objective advice and information about the condition and advise you on how the courts view and deal with any applications for obtaining treatment for children. Contact us today at 1800 770 780 or contact us via [email protected] to schedule a consultation with our experienced family lawyers.