In a short period of time the Family Court of Australia had a number of \u201cspecial medical procedure\u201d applications to consider.They concerned a condition known as gender dysphoria \u2013 where a child is born as one sex but assimilates identities and associates as being of the opposite sex.<\/p>\n
From reading through case examples Re Lucy and Re Jamie, it appears that there are two stages involved in the transformation of a person from one sex to the other.\u00a0 Stage One involves the administration of hormone treatments, a reversible commencement in transformation whereby puberty is effectively put on hold.\u00a0 Stage Two is irreversible.\u00a0 Body shape changes occur and surgery follows.<\/p>\n
In Re Lucy (Gender Dysphoria), the child was physiologically a girl, however, had identified as a boy since the age of four.\u00a0 On 12 July 2013 the judgment was handed down with Judge Murphy considering the extensive medical, and associated psychological\/ psychiatric counselling, history of the child.\u00a0 Lucy was 13 years old and in the care of the department \u2013 with no surviving parents.<\/p>\n
Lucy\u2019s progression through puberty had commenced at the time of the hearing.\u00a0 Treatment with a substance known as Lucrin halts development and when treatment ceases, puberty can continue from where it was halted.\u00a0 This treatment enables the physical changes to be halted so that when the child reaches an age of greater competency, they can then make the election to proceed to surgery.<\/p>\n
Ordinarily, parents have the authority to make decisions concerning their child\u2019s medical treatment.\u00a0 However, they are not able to consent to treatment which involves \u201cspecial cases\u201d or \u201cspecial medical procedures\u201d.\u00a0 The court has jurisdiction in these matters because it has authority to make decisions concerning parental responsibility, which is a qualifying aspect for Part VII of the Family Law Act 1975<\/em> (\u201cthe Act<\/strong>\u201d).<\/p>\n This case was a little more involved as Lucy was in the care of the Queensland Department of Communities, Child Safety and Disability Services, under a guardianship order.\u00a0 An examination of the psychological state of the child is fundamental.\u00a0 Ultimately, decisions are being made that are irreversible, likewise the natural progression of puberty would make for irreversible changes.\u00a0 The child\u2019s mental health rests on these decision making processes.<\/p>\n Murphy J found that the administration of drugs to suspend puberty was \u201c\u2026appropriate for and proportionate to the purpose\u201d of treating the child\u2019s Gender Dysphoria and that it is intended to be administered \u201cfor the chief purpose of preventing, removing or ameliorating \u2026 a psychiatric disorder.\u201d\u00a0 Murphy J went on to comment that this was not a situation where the treatment itself fell into the category of a case requiring the Court\u2019s authorisation; however, there are times when an order needs to be made.<\/p>\n In Lucy\u2019s situation, the Department was seeking authorisation for Stage One treatment \u2013 a reversible stage.\u00a0 This case had involved pharmaceutical treatment, psychological and psychiatric evaluation and support, \u201ca prolonged period of conservative treatment\u201d.<\/p>\n The Re Jamie decision was handed down on 31 July 2013 by the Full Court of the Family Court.\u00a0 Jamie was a 12 year old boy who wanted to be a girl and had been leading life as a girl for several years.\u00a0 The case had already spent a lot of time before the court and was an appeal from an earlier decision.\u00a0 Jamie is in her parents care.\u00a0 Again, the child met all the requirements of the diagnostic tool, DSM-IV, for a psychiatric condition.\u00a0 Again, the child was competent to make decisions, that is, had no mental impairment.\u00a0 For Jamie, the parents wanted authority to make all decisions.<\/p>\n The Australian Human Rights Commission argued that the parents had authority to make decisions about the reversible treatment, but not the second stage and that this was a \u201cspecial medical procedure that requires authorisation\u201d.\u00a0 A public authority was also involved.\u00a0 There was argument as to whether reversible treatment is a separate step not requiring authorisation or whether it is part of the entire treatment process, which requires authorisation.<\/p>\n Medical treatment is evolving.\u00a0 Parental authorisation for some procedures and treatments is limited.\u00a0 This will remain a challenge for parents and the Courts for some time.<\/p>\n At this stage, though, the two cases suggest that Stage One treatment does not require Court authorisation as that step is reversible with few, if any, side effects.\u00a0 It \u201cis not a special medical procedure as it does not \u201cdisplace\u201d the parental authority\u2026properly advised and informed, parents are in a position to make such decisions.\u201d<\/p>\n For Stage Two, the court is indicating that where there is a question of competency, then the court is to be involved at this time and, in any event, competency is a matter properly determined by the court.<\/p>\n Where there is disagreement between parents, medical practitioners and the child, then court sanction is required at any stage.\u00a0 On a separate note, for people who are transgender, there should be no reason for discrimination on the basis or sex or any other aspect.\u00a0 People in this situation are an identifiable group in our society and have the right to live as a member of the sex they identify with.<\/p>\n The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013<\/em> (Cth) commenced on 28 June 2013.\u00a0 If you feel you have been discriminated against on the basis of your sex, seek legal advice.<\/p>\n Title:\u00a0 Lucy (Gender Dysphoria) [2013] FamCA 518 Title: Jamie [2013] FamCAFC 110 Ryan Murdoch O’Regan Lawyers are highly experienced with all types of family law matters.\u00a0 We use compassion and understanding for all matters which are emotional, particularly if a matter involves sensitive issues such as gender dysphoria.\u00a0 With over 40 years\u2019 experience, our Family Law Team <\/a>are experts in the family law field. The team also boasts an Accredited Family Law Specialist, Tim Ryan<\/a>.<\/p>\n Get the best representation. Contact Ryan Murdoch O’Regan Lawyers on\u00a01800 999 529<\/a>, email\u00a0mail@rmold.newwebsite.live<\/a>, or submit an enquiry below.<\/p>\nOutline Of Cases<\/h3>\n
Conclusion<\/h3>\n
Judgements Mentioned<\/h3>\n
\nDate: 12 July 2013
\nCourt: Family Court of Australia<\/p>\n
\nDate: 31 July 2013
\nCourt: Family Court of Australia \u2013 Full Court<\/p>\nHow We Can Help<\/h3>\n
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