Gender change treatment clears hurdle in landmark Family Court ruling

Kids can access hormone treatment to change gender without seeking Family Court approval, after judges depart from earlier ruling.

A landmark ruling has cleared a hurdle for people seeking to change their gender.

Children will be able to access hormone treatment to change their gender without seeking Family Court approval, following a landmark judgment today.

Five Family Court judges have unanimously departed from a previous ruling of the court, which required young people seeking hormone treatment for gender dysphoria to obtain approval from the court.

It said this was because the state of medical knowledge had moved on since the court ruled that its approval was required.

There were now international standards for the treatment of gender dysphoria, and “increased knowledge of the risks associated with not treating a young person”.

“It is readily apparent that the judicial understanding of gender dysphorias and its treatment have fallen behind the advances in medical science,” the majority said.

It said its decision applied to cases in which there was no dispute between the parents or the medical experts who proposed the treatment.

The decision was immediately welcomed by the Royal Children’s Hospital, Melbourne, which said it was “the greatest advancement in transgender rights for children and adolescents in Australia”.

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

Lawyers for Kelvin’s father had argued children should require only the approval of medical experts and their parents when seeking Stage 2 treatment, which involves the administering of hormones orally or via injections.

Australia was until now the only country in the world that required court involvement in Stage 2 decision-making.

The Royal Children’s Hospital’s head of adolescent medicine and gender services, Michelle Telfer, said the decision was “enormous” for transgender adolescents.

“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,” Dr Telfer said.

“They will now have timely access to the treatment which provides a positive difference to their physical and mental health, and their social, emotional and educational outcomes.”

The judgment today revealed the Family Court had dealt with 63 cases involving applications for stage 2 or 3 treatment for gender dysphoria between mid-2013 and mid-2017. In 62 of those cases, the court allowed treatment.

The cost of seeking court approval ranged from $8000 to $30,000.

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

Kelvin’s father’s barrister Michelle Painter SC argued that the continued role of the court was not required because the administration of hormones was not “sufficiently grave” or “sufficiently medical” or “sufficiently surgical” or irreversible, so as to warrant the court’s continued role.

“It’s a pretty powerful thing, but that is all that it is, it’s not surgical or medical in that more invasive sense in our submission,” she told the court in September.

Ms Painter said the court’s role added “no value” to the process; instead medical experts were best placed to make the decision about whether treatment was appropriate.

She said the numbers of children seeking hormone treatment for gender dysphoria were “growing exponentially” and showed no sign of slowing down. Continuing to play a role in approving the treatment would take up the court’s time and drain its limited resources.

The process also caused unnecessary delay for young people in a “fast moving period” when they hit puberty, and it was distressing for them “to have their physical attributes sanctioned by a court”.

The barrister said the court was rarely involved in approving Stage 3 treatment, which involved surgical interventions, because that usually occurred after children turned 18.

The Royal Children’s Hospital has received more than 230 patient referrals this year, and more than 700 since 2003.

Dr Telfer said of those, 96 per cent diagnosed with gender dysphoria continued to identify as transgender into late adolescence. No patient who commenced stage two treatment had sought to transition back to their birth sex.