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Gender dysphoria and the Family Court

In recent times, the number of children experiencing persistent discomfort with their natural gender has risen dramatically, leading to an increase in the diagnoses of gender dysphoria. The treatment for gender dysphoria is considered by Australian law as a "special medical procedure" which falls outside the scope of a parent or legal guardian's ability consent, which means consent for a procedure of this kind, needs to be given by the Family Court of Australia.

The welfare jurisdiction of the Family Court provides jurisdiction over those medical procedures that require the authorization of the Family Court. For a medical procedure to be considered to be within the jurisdiction of the Family Court's authorization it must be defined as medical intervention that is:

  1. Invasive, permanent and irreversible;
  2. Not for the purpose of curing a malfunction or disease; and
  3. Carries a significant risk of making a wrong decision and that decision has potentially severe consequences.

Gender dysphoria treatment satisfies the above criteria as stage two of the two stage treatment is irreversible, carries significant risk of making a wrong decision in relation to its permanent nature and further it is not for the purpose of curing a disease or malfunction. 

It was held in the 2013 Full Court decision of Re Jamie that the requirement to obtain judicial consent for a special medical procedure can only be avoided if the Court is satisfied that a minor has a competent understanding of the consequences of the procedure. This level of competency and maturity is referred to as "Gillick competence" and if a minor is not found to be at this level of capability then judicial consent will be required for treatment of this nature.  

Section 67ZC of the Family Law Act forms the statutory basis for the court to approve or refuse permission for medical procedures that fall outside the bounds of parental consent. As part of this section, the court ensures that it considers the best interests of the child when deciding whether to consent to medical procedures or not.

In order to obtain an order that a child is Gillick-competent or an order from the court consenting to a special medical procedure an application must be brought into the Family Court. An application can be made by a child, an Independent Children's Lawyer, a parent of the child, a person who has a parenting order in relation to a child or any other person concerned with the care of welfare of that child.

Want to know more? Contact the Kells Family Law Team.

Co Author Kelly Markovski

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