Gender and the Law: A Recent Case Where the Court Intervened

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In the recent case of Re:Kelly [2022] FedCFamC1F 380, the court determined amongst other issues, whether a child should undergo Stage 1 hormone treatment in circumstances where the child was under the age of 18, where the mother consented to the treatment, and where the father did not provide his consent. 

In this case, the mother commenced urgent parenting proceedings in respect of her two (2) children.

One of the children, Kelly, was assigned male at birth and sought to undergo Stage 1 hormone treatment to suppress the effects of puberty. The Stage 1 treatment is reversible. The child’s medical practitioners and mother supported Kelly in undergoing the treatment; however, the father did not provide his consent for Kelly to undergo the treatment.

In the absence of Orders, where a parent does not agree to this sort of medical treatment, the court must first determine whether the child has sufficient understanding and intelligence to understand what is proposed (known as “Gillick competence”).

The mother also sought to vary the child’s birth certificate so that the child be formally known and recorded as ‘Kelly’. The child’s name on her birth certificate was ‘Charlie’.

The mother also sought sole parental responsibility for her children, and/or in the alternative that the court authorise the proposed medical treatment of Kelly. The mother also sought leave to provide a copy of the Orders to support the registration of the change of the child’s name. The mother further sought that the children live with her and spend time with the father as agreed, subject to the children’s wishes.

The mother asserted that the father did not accept Kelly’s gender identity and continued to refer to her as ‘Charlie’.

Kelly underwent the required screening process for transgender children and was formally diagnosed as having gender dysphoria. The treating Medical Service confirmed that Kelly had the ability to consent to the first stage of treatment.

Kelly’s treating doctor advised that Kelly should commence hormone-blocking treatment immediately to prevent entry into male puberty and noted that Kelly expressed significant distress at the idea of entering male puberty.

Kelly contacted her father to obtain his consent for the treatment but did not receive a response.

The mother deposed that Kelly had identified as a female from a very young age and has been treated as a female at her school and socially.

The mother deposed that Kelly initiated the discussions in respect of her transition and the mother took care not to prompt Kelly in any way in respect of her gender identity.

Notably, Kelly had spent no direct time with her father since October 2020. Kelly’s doctor reported that Kelly’s father was not supportive of her, and that Kelly had suffered transphobic bullying. Kelly’s medical assessment found that she never felt satisfied with her assigned gender and also had never felt uncertain about her identity as a girl.

The court considered the best interests of Kelly when making their decision and noted that Kelly wished to commence Stage 1 hormone treatment. The court found that Kelly was informed and mature in expressing a rational view as to her gender dysphoria and the appropriate treatment. The court found that Kelly’s best interests were achieved by her entering into Stage 1 treatment in respect of her gender dysphoria and that the mother has sole parental responsibility accordingly. The court authorised a variation of Kelly’s birth certificate so that the child be formally known as ‘Kelly’.

The court relisted the matter for mention in respect of Kelly undergoing Stage 2 gender dysphoria treatment in the absence of the consent of the father. Stage 2 treatment involves gender-affirming hormone treatment with some effects being irreversible.

If this article has caused you distress in any way, please reach out to the following services for support:-

QLife: 1800 184 527

Twenty10: 1800 65 2010

The Gender Centre Inc: (02) 9519 7599