Published: 27 November 2015
Author: Ryan Carlisle Thomas
Gender dysphoria - why courts have a say in gender reassignment
Gender dysphoria, in which a child feels uncomfortable within his or her biological sex, has in recent years risen to public prominence.
The growth in applications to approve gender reassignment surgery suggests that more and more parents are now having to grapple with this challenging issue.
The therapies, including surgery, that are sought by young people in order to change their biological gender, evoke many ethical and medical questions. What’s less appreciated are the legal issues that inevitably require court interventions in order to obtain legal approvals.
Some people may ask why the courts should be sticking their noses into the private affairs of families? To understand the issue, we need a little context.
Family law and medical procedures for children
An often-overlooked part of family law is the legal authorization that is sometimes required for medical procedures on children.
It is often a case that families need to seek orders in the Family Court to permit the medical procedure to take place.
What is called gender dysphoria – or what might in common language be called gender disorientation – often motivates a child to want to undergo treatment in order to change their birth gender.
In my experience, this is often a trying time for families.
First, there is the turmoil of a child struggling to understand their identity, of realizing they are ‘in the wrong body’, a situation that most often occurs in that most difficult stage of life – the teenage years.
Their parents, family and friends then have to come to terms with the issue and to understand the impact of the diagnosis.
Then there are extensive psychological assessments and practical adjustments that are required so as to assist a child understand the implications of a new sexual orientation.
Finally, after often years of involvement of medical professionals, meetings with school boards, counseling for families and various other assessments and meetings, a child may then seek to undergo the hormonal and physical changes associated with the transition to the opposite physical sex.
The first phase of treatments, called Stage 1, is generally pharmacological in nature and until recently had required court approval, but which can now be agreed to by the parents of the child, or by an older child or teenager deemed by the court to be competent.
The second phase of treatment, called a Stage 2, involves gender reassignment surgery, and is recognized as sufficiently grave as to require family court approval.
But why are the courts involved at all?
Why the Family Court?
The Family Court has jurisdiction over many serious medical procedures which are proposed for children.
Some may query why a court order is required when the parents and the child have already given their consent to the procedure. It is however a perfect example of the jurisdiction of the Family Court and the purpose of the Family Law Act.
The law has been established in order to protect children and ensure their best interests are met.
In the case of gender reassignment surgery or therapy for children, an independent person is able to dispassionately assess all the information available to determine what is in a child’s best interests, especially where an irreversible procedure is to be undertaken.
Most children are usually not competent to make such decisions, at least not early in life, whereas their parents may be blinded by emotions or other motivations that restrict their ability to focus on a child’s best interest.
It is obvious from the case law on this issue that it is becoming an area of law that requires attention. The increase in the Family Court’s reported cases is a clear reflection that judges are now more often being asked to determine the issue of gender reassignment. This may be due to more understanding by medical professionals and earlier identification of the issue and acceptance in the wider community, which in turn has lead to more requests from families to use this form of medical intervention and court involvement.
As the medical and social barriers to gender reassignment are slowly breaking down, the Family Court and legal profession also have a part to play in ensuring that some of the most vulnerable members of our society, our children, are given the right independent advice and support, so that the changes they seek help them find where they fit in the world.
Medical Journal of Australia: Treatment for gender dysphoria in children: the new legal, ethical and clinical landscape