Re: Kelvin [2017] FamCAFC
On 30 November 2017, the Full Court of the Family Court of Australia delivered a landmark judgment which will make the lives of many children diagnosed with gender dysphoria (also known as gender identity disorder) easier. In particular, the Court decided that it is no longer mandatory to apply to the Family Court for authority to commence treatment in circumstances where:
- Stage 2 treatment of a child for gender dysphoria is proposed;
- The child consents to the treatment;
- The treating medical practitioners agree that the child is Gillick competent to give that consent;
- The parents of the child do not object to the treatment.
For an explanation of gender dysphoria, stage 2 treatment and Gillick competence, please refer to the following article by Alex Finemore published in the Law Institute Journal in July 2014: The (fe)male conundrum
Facts
- Child Kelvin (born 2000) diagnosed as having Gender Dysphoria based upon DSM-5[1] diagnostic criteria
- Kelvin is 16 years old and wishes to commence Stage 2 treatment for Gender Dysphoria
- Kelvin’s parents separated in 2003 and Kelvin remained with his father while his mother moved interstate
- Kelvin has not seen his mother in around two years and does not wish to see her but she is supportive of his transition
- Kelvin identified with the concept of ‘transgender’ from the age of nine and began displaying behavioural changes in 2013 (cut his hair short, began dressing as a male and purchased a chest binder)
- Kelvin told his father that he was transgender in January 2014 at age 13
- Throughout 2015, Kelvin attended doctors (Dr M and Dr C) for referrals and has been seeing a psychologist (Dr N) since April 2015
- Kelvin has had two appointments with an endocrinologist (Dr H)
- From October 2015, Kelvin began weekly sessions with an accredited counsellor and mental health social worker (Ms F) which continued for 12 months before changing to fortnightly sessions from October 2016 onwards
- In July 2016 Kelvin attended one session with psychologist Dr S
- In July and August 2016, Kelvin and his father attended sessions with psychologist Dr R
- Psychologist Dr R reported that Stage 2 treatment would allow Kelvin “to continue to develop his self-esteem, the confidence in his body and appearance and to consequently develop the congruence necessary for a healthy future outlook” [34]
- Psychologist Dr R reported that Stage 2 treatment was “necessary to promote [Kelvin’s] wellbeing and to relieve his suffering” [35]
- Endocrinologist Dr H reported that cross sex hormone therapy would be likely to improve Kelvin’s psychological wellbeing and that adverse medical outcomes are uncommon
- Psychologist Dr S reported that if the treatment were not carried out, Kelvin may experience “triggers for suicide attempts” [38]
- Kelvin’s father gave evidence stating that Kelvin was a sound decision-maker and that he was aware of the consequences of Stage 2 treatment
- Psychiatrist Dr S reported that Kelvin “demonstrated a capacity to be able to comprehend and retain existing and new information, and provide a full age-appropriate explanation of the nature of the treatment”, with reference to the Gillick standard [42]
- Endocrinologist Dr H reported that Kelvin “is able to comprehend the nature of the treatment such that he is able to provide informed consent, according to the Gillick standard” [43]
- Kelvin’s father has said that Kelvin is doing well at school and has a supportive group of friends
- Kelvin’s extended family are supportive of Kelvin and have “accepted his request to be recognised as male” [49]
- Psychologist Dr R reported that Kelvin had self-harmed in the past and that his “motivation and aspirations are inextricably linked to being perceived and treated as a male” [51]
- Kelvin’s father, by way of Initiating Application filed 25 January 2017, sought a declaration that the child was competent to consent to Stage 2 treatment OR alternatively that the court authorise the administration of Stage 2 treatment on the basis that was in the best interests of the child
- Kelvin’s father sought orders seeking confidentiality
By Alex Finemore, Senior Associate
[1] Diagnostic and Statistical Manual of Mental Disorders 2015 (Fifth Edition)
