On 30 November 2017 the Full Court of the Family Court of Australia ruled in the case of Re Kelvin that transgender children no longer require Court authorisation to receive stage 2 hormone treatment.
Before Kelvin’s case, Australia was the only country in the world where Court approval was required for hormone treatment. This landmark decision allows transgender children and their families to access hormone treatment without long delays, and avoid the financial and emotional stress of going to Court. Since 2013 transgender children were able to receive puberty blocking treatment (stage 1) without the consent of the Court, but if they wanted hormone treatment of testosterone or oestrogen (stage 2), they had to go to the Family Court to approve this further stage of treatment. This was the case even if the child, their parents and their medical team agreed that it was in the child’s best interests to receive stage 2 treatment.
The historical reason for the Court’s position on stage 2 hormone treatment is attributed to a decision of the High Court of Australia in 1992 known as “Marion’s case”. Marion’s Case concerned the non-therapeutic sterilisation of a girl with an intellectual disability. The Family Court has, until now, followed the principle established in Marion’s case that Court authorisation was required for a medical procedure for a child if it was:
- involved significant risk of making the wrong decision; and
- had irreversible consequences.
Now, due to Kelvin’s case stage 2 hormone therapy for transgender children no longer automatically fits within the Marion’s Case category.
Re Kelvin is a case about a 17 year old transgender child who was assigned female at birth and identifies as male. When Kelvin was 16 years old, with the support of his family, he successfully applied to the Family Court for approval to receive testosterone hormone treatment. Kelvin and his family further challenged the requirement that the Family Court must authorise hormone treatment for children.
The Family Court delivered two judgments with differing reasons about why Court authorisation was no longer required. Justices Thackeray, Strickland and Murphy said that due to advances in medical science regarding the nature of hormone treatment and its risks, (including the risks of not receiving treatment), Court authorisation was no longer required. Justices Ainslie-Wallace and Ryan rejected the application of Marion’s case ruling that hormone treatment, a therapeutic treatment, had wrongly been considered in the same way as the risks, consequences and outcome of non- therapeutic sterilisation in Marion’s case.
Effect of the decision in Re Kelvin
The Kelvin decision means that the parents and the child, in consultation with their medical team can make decisions as to whether or not a child receives hormone treatment, provided they all agree; rather than the Family Court of Australia making the decision.
The Kelvin decision sets out the necessary steps for commencing stage 2 hormone therapy to be:
- The parties with parental responsibility for the child must provide consent; and
- a child must be assessed by a multidisciplinary medical team and the doctors must recommend that hormone treatment is in the child’s best interests.
Continued Court Involvement in Determining Hormone Therapy for Transgender Children
Court authorisation is still required in some circumstances. For example for gender affirming surgery (stage 3), or if the child is in state care, or their parents and doctors do not agree to hormone treatment.
The matters set out in this article are general in nature and cannot be relied upon as legal advice. Camatta Lempens Lawyers is an LGBTQI inclusive firm. If you would like to discuss any legal matters relating to gender transitioning or any other related matter you are invited to contact either Poppy Matters or Leonora Herweijer in the Camatta Lempens Pty Ltd family law team.