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26 December 2017

Re Kelvin: Transgender Children and the Family Court

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In a specially convened Full Court of the Family Court of Australia session on Thursday 30 November 2017, the five appeal division Judges handed down judgment in relation to the Family Court’s involvement in the authorisation of medical treatment for transgender children.

In a unanimous decision, the Full Court held that it is no longer necessary to seek a determination from the Family Law Courts about whether it is appropriate to commence hormone treatment for transgender children.  Prior to this landmark decision being made, parties had to apply to the Court for approval, even if the parents of the child, the child and the child’s medical experts agreed that hormone treatment is appropriate and necessary.

In a special case bought by the father of a 16 year old transgender known as Kelvin, the Court was asked to consider whether the previous case law requiring the Court process to take place should be overturned.  The Full Court agreed that in cases where there is no dispute between the child, their parents and their treating doctors, hormone treatment could be prescribed.  This eliminates the need to apply to the Court for approval.

In 2003, the Full Court in Re Jamie (2013) FLC 93-547, the Court determined that Court approval was not required for stage 1 treatment.  Stage 1 treatment involves “puberty blockers” to prevent the development of secondary sexual characteristics such as the development of breasts, body hair or voice breaking.  Once a child reaches the age of 16 years, the guidelines for treatment for gender dysphoria recommend commencing hormone replacement treatment, to allow the development of sexual characteristics (Stage 2 treatment).  This involves the administration of estrogen for boys who identify as female and testosterone for girls who identify as male.  The Full Court decision eliminated the need for the Family Court’s involvement in determining whether an Application to the Family Court for a determination whether the child is competent is mandatory.

The case of Re Kelvin is important in that it eliminates the costly, time-consuming and burdensome step of applying to the Family Court for state two treatment.  Re Kelvin finally removes from the Court children with gender dysphoria.  If the child’s parents, the child and the child’s treating medical practitioners agree that treatment is necessary, then the Court can and should have no role.

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