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Family Court consent no longer required for treatment of Gender Dysphoria

(Co-authored by Franca Parolin and Law Cadet, Kelly Markovski)

The Full Court of the Family Court of Australia has ruled that persons under the age of 18 who are diagnosed with gender dysphoria and wish to undergo treatment can now do so without the need of seeking approval from the Family Court.

This decision was handed down in the recent case of Re: Kelvin (2017). The case involved a 16 year old transgender teenager who was born female but began transitioning to male with the support of both of her parents. The teenager's father applied to the Family Court for consent to approve Stage 2 treatment for Gender Dysphoria. The trial Judge found the teenager to be "Gillick competent", this meaning she was mature enough to consent to the hormone treatment herself.

The question to be answered by the Full Court of the Family Court was whether the law should require court approval for Stage 2 hormone treatment. In answering this question the Full Court departed from it's view in Re: Jamie that court approval is necessary and held that "if the child consents to the treatment, their medical practitioner agrees that they are competent to give consent to the treatment and the parents make no objection, then it is no longer mandatory to apply to the Family Court for determination as to whether the child is "Gillick competent"".

The Full Court of the Family Court has now taken the view that Stage 2 Gender Dysphoria hormone treatment can no longer be considered as a medical procedure which requires consent of the Family Court. The Full Court of the Family Court has confirmed that Stage 2 hormone treatment lies within the bounds of parental authority.  

Therefore, approval from the Family Court is no longer needed for a person under the age of 18 with Gender Dysphoria to begin Stage 2 hormone treatment if the child consents to the treatment, their medical practitioners agree they are able to give consent and the child's parents make no objection.

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