Trans teen to choose: Father overruled in landmark case

A teenage boy born in a girl’s body has been given urgent permission to access testosterone without his father’s consent in a landmark court case, but a legal expert warns there is no certainty for future cases.

A teenage boy born in a girl’s body has been given urgent permission to access testosterone without his father’s consent in a landmark court case.

The Queensland Supreme Court ruling by Justice David Boddice gives legally competent minors autonomy to decide their treatment for gender dysphoria, conflicting with a controversial 2020 ruling by the Family Court of Australia and further muddying legal waters.

While trans health advocates are celebrating, a legal expert describes the ruling as “a really welcome first step’’ but says the two different positions provide no certainty for future cases.

In his recently published judgment, Justice Boddice stated the Re Imogen case – which established that if a parent or doctor does not agree with the decision-making competence of a child, diagnosis of gender dysphoria or proposed treatment, a court application had to be lodged – “did not correctly state the law” and “if the child is Gillick competent … that really should be the end of the matter”.

Justice David Boddice. Picture: Liam Kidston

Child A, who cannot be named, was aged 16 years and 11 months at the time of the March hearing, had “a long history of non-gender conforming behaviour”, had expressed his views aged 11, identified as a transgender male since year 9, used male pronouns and dressed as a male, including wearing a full boys’ school uniform since 2017.

The teen’s mother initially applied to the Family Court of Australia but long delays in securing a hearing, meant she sought an urgent order from the Supreme Court of Queensland granting access to hormone treatment for her son, despite her husband’s belief the child does not have gender dysphoria and does not need treatment.

Six medical practitioners supplied affidavits to the court on the child’s condition, treatment and recommendations as to further treatment.

Transgender and gender diverse young people are at significantly higher risk of suicide, self-harm, depression and anxiety, but timely access to gender-affirming services achieves the same or better health, social and educational outcomes as their peers.

“Having considered the material I am satisfied the child is Gillick competent. It is apparent from the material the child has indicated over a considerable period of time, a consistent view the child is male. The child has reported from a relatively young age of never feeling like a girl and of always feeling different,’’ Judge Boddice wrote.

“There is overwhelming evidence the child has gender dysphoria and there is no reason why the Court ought not to accept the detailed expert opinions expressed in the affidavit material relied on in the application,’’ Justice Boddice ruled in the closed March 31 proceedings.

“Further, that material supports an overwhelming conclusion that it is in the best interests of the child to undertake stage 2 treatment and that the child, knowing the consequences of that treatment, wishes to have that treatment and consents to the giving of that treatment.’’

Australian Professional Association for Trans Health immediate past president Dr Fiona Bisshop yesterday welcomed the decision.

“What is very important to note is there has not been a single case that’s gone to court that has not found in favour of the child being able to affirm their gender. Honestly, it seems to be the case that it’s almost formulaic and forcing [families] to go through this protracted, expensive, time-consuming process which is very stressful is completely unnecessary,’’ Bisshop said.

“This ruling has shown all you need is for the person to be assessed as Gillick competent and you can avoid the process.’’

Queensland University of Technology law lecturer Dr Steph Jowett said Justice Boddice’s approach aligned best with spirit of Gillick competence and children’s rights, but only a decision by the Full Bench of the Family Court of Australia or legislative intervention would provide certainty.

“Until then we don’t actually know what the law is. Two different positions have been taken, which conflict with each other, and in order to resolve that we need a judgment from a higher court or legislation,’’ says Jowett.

“This is definitely a push that comes from legal academics and I get the impression the medical community, parents and young people themselves very much want the law cleared up and to be aligning with medicine in way that is beneficial for young people and not harmful.’’

Dr Jowett said the law as outlined in Re Imogen was “directly leading to suicidal actions by trans youth’’.

“In one case, a child made contact with their estranged father to get consent for stage two treatment, which led to a reply the judge noted was far from friendly or loving, and actually espoused unscientific and transphobic views, which directly prompted – and I quote – an immediate and near fatal response from the adolescent.’’

Children’s Health Queensland welcomed the court decision.

“Some young people, particularly those impacted by family violence; or with a parent incarcerated for offences against the child, or with an estranged or absent parent, were disproportionately impacted by the earlier ruling in Re: Imogen due to the mandatory requirement for dual parental consent up the age of 18,” it said in a statement.

“Re: A means that in Queensland, normal consent principles for children – i.e.. Gillick competent children can consent for treatment – have returned.

“Young people under the age of 18 years, who have sufficient capacity to do so, can consent to gender affirming treatments, as is usual for other medical treatments and consistent with the human rights of the child.

“While Re: A is currently only applicable in Queensland, it will likely provide a precedent for change in other states of Australia.”

The Queensland Children’s Gender Service, the state’s first and only public specialist children’s service, has supported some young people (and their families) with financial support for legal costs – $15-25,000 per case – since 2013.