Access to justice for children who identify as trans
The medical diagnosis for being transgender, as defined by the American Psychiatric and Statistical Manual of Mental Disorders (fifth edition) is 'gender dysphoria'. Gender dysphoria is defined by one's gender identity not matching their biological sex. This diagnosis is problematic. Rather than sending a message that being transgender is a valid gender identity, it implies that being transgender is a mental illness.
For children who wish for their bodies to match their gender identity, hormonal intervention is available. Hormone intervention for transgender children occurs in two stages.
Stage 1 involves puberty suppression, whereby the hormonal changes which activate puberty are purposefully delayed. This medical process suppresses the onset of characteristics such as: breasts, facial hair, body fat redistribution and voice changes. Puberty suppression is a fantastic way to assist transgender children by buying more time; whether this be for not being legally capable of accessing medical intervention due to age/maturity or not yet being sure of their identity.*
Puberty-blockers are reversible although the long-term effects are unknown. Generally speaking, for many preadolescents puberty-blockers are a blessing. They delay the sexual characteristics which the child fundamentally rejects, whilst also permitting the child to commence puberty as their preferred gender. You can watch an informative and heartfelt Ted Talk on the amazing ways puberty suppression can help transgender individuals here.
An application for Stage 1 Medical Intervention is no longer required to be heard in a court.**
Stage 2 of medical intervention involves the alteration of the physical characteristics of a child's biological sex by administering testosterone or oestrogen. Stage 2 treatment is usually commenced at 16 years of age. This has irreversible features which may pose other health risks.
Re: Marion's Case
This case involved an appeal to the High Court of Australia of a decision of the Full Court of the Family Court. The Full Court had held that the parents of an intellectually disabled 13 year old girl could authorise her sterilisation without a court order. The High Court accepted the appeal and handed down a majority decision in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ.
The High Court found that court authorisation for sterilisation was necessary and 'in essence, a procedural safeguard.' Although a similarly invasive surgery such as an appendectomy comes within the ordinary scope of what a parent can consent to; the High Court found that a wrong decision could pose harmful consequences to the child. For this reason, parental consent is not solely effective where the proposed medical treatment is:
invasive, permanent/irreversible and;
not for the purpose of curing a malfunction or disease.
The majority in Re: Marion endorsed the English decision in Gillick v West Norfolk and Wisbech Health Authority. From this case, it was found that a child is capable of consenting to medical treatment, where they have sufficient intelligence and maturity to fully understand what is involved.
The High Court drew a distinction between therapeutic and non-therapeutic medical treatments with the former being considered necessary for treatment of disease. The proposed sterilisation of Marion was considered non-therapeutic. The majority found that court orders for medical treatment on a child that is not competent as per Gillick is required where:
treatment is non-therapeutic (not considered necessary for disease/ailment)
treatment is considered irreversible
there is a significant risk of making the wrong decision in regards to the child's ability to consent / child's best interests
the consequences of the wrong decision are grave
The landmark decision of Jamie's case rendered the court approval of Stage 1 treatment unnecessary. Whilst it is generally considered within parental responsibility to be able to consent to medical treatment on behalf of their child, 'special medical procedures' of which Stage 1 treatment applies, fall beyond this responsibility.
This case involved parents who sought authorisation for their child to access Stage 1 and 2 of treatment. Jamie's parents argued that their scenario was distinguishable from Marion's case as medical treatment for their child was therapeutic. Further, they posed that no application for transgender children should be necessary where there is no dispute between the parents, child and medical professionals in relation to treatment.
The Full Court agreed with the appellants, Jamie's parents. As such, the Full Court made findings that:
Stage 2 of treatment requires court authorisation given the grave consequences if the wrong decision is made;
Stage 1 treatment does not require court authorisation if there is no controversy between the child, parents and medical professionals; and
The Court (cf. the parents) is required to consent to a child's access to Stage 2 of treatment where that child lacks Gillick competence.
A child can consent to Stage 2 treatment without court authorisation if they are Gillick competent. However, the court decided the question on whether or not the child is in fact, Gillick competent. This may be in disagreement to the child's parents.
The harmfulness of requiring court authorisation for Stage 2 treatment is problematic in consideration of the court's role being to act in the best interests of the child. There is controversy surrounding whether the court should have a role in deciding children's access to Stage 2 of treatment. Whilst there has been a step in the right direction following the decision in Re: Jamie's case, there should be no court authorisation required where cases are uncontroversial. Uncontroversial meaning that the child has insistently and consistently identified with another gender and there is no dispute between the child, parents and medical professionals.
Given that treatment is a time-sensitive issue with regards to the mental health risks that transgender children may face, measures must be taken to ensure that there is no administrative red tape for parents acting for their child. To date, occasionally there is an Independent Children's Lawyer appointed to Stage 2 applications, although this is becoming more seldom. In addition, recent cases have differed in the requirement to serve an application onto relevant child welfare authorities.***
* Some transgender children may have a strong sense of gender identity from a very early age. Other children may identify as being nonbinary or having a fluctuating notion of their gender. Nonbinary refers to a spectrum of gender identities which are based on the notion that gender does not have to be an either/or option of male or female. Read a fantastic account of different 9 year olds' experience of gender here, published by the National Geographic.
** The Family Law Act 1975 (Cth) confers jurisdiction onto the court with respect to child welfare. Certain medical procedures require the Family Court's authorisation under s 67ZC in respect to children under the age of 18. With such medical procedures, the child's best interests is the paramount consideration as per s 67ZC(2).
*** Pursuant to Rule 4.10 of the Family Law Rules 2004, 'The persons on whom a Medical Procedure Application and any document filed with it must be served include the prescribed child welfare authority.'
Image: Archie Barry, dreamboy