Recently released, from the Association of Family and Conciliation Courts Australian Chapter Conference in Sydney, Australia, 14-15 August 2015
Building bridges: A Multidisciplinary Approach to Family Law
To Treat Or Not To Treat:
Legal Responses to Transgender Young People Revisited
Prepared by: The Hon. Justice Strickland, Judge of the Appeal Division, Family Court of Australia
and President, Australian Chapter of the Association of Family and Conciliation Courts
Family Court judges, faced with an increased number of applications involving young people with gender dysphoria, are operating as best they can within the strictures of the Full Court’s decision in Re: Jamie and the High Court’s decision in Re: Marion. It was suggested in the 2014 paper that the limits of the Family Court’s role in authorising Stage 2 treatment for gender dysphoria, and indeed whether the Family Court would have any role at all, would be the subject of further litigation. That has not been the case. In applications such as these, where there is no contradictor and where the relief sought has, without exception, been granted, it must therefore be concluded that the prospect of another Full Court appeal being instituted is remote. 31
Despite what was postulated in 2014 therefore, it must be concluded that pace of appellate jurisprudential development will be leisurely.
This leads inexorably to the view that legislative intervention in the arena of young people’s consent to medical treatment is required. That could take the form of a national ‘consent to medical treatment’ statute, although there would be Constitutional hurdles to overcome as there is no obvious head of power under which such a statute could be enacted. For a national statute to have Constitutional validity, an appropriately framed referral of powers from the states and territories would be required. Alternatively, the states and territories could enact their own statutes, ideally in similar terms. In saying that, it should be noted that two Australian states, namely New South Wales and South Australia, have enacted consent to medical treatment legislation, which confers full capacity for decision making about medical treatment on persons aged 16 years and over.27 New South Wales also has legislation in place governing the performance of “special medical procedures”, which provides that the New South Wales Civil and Administrative Tribunal is responsible for deciding whether special medical treatment should be provided to a person aged under 16 years.28
As recently as July 2015, in a feature article in The Weekend Australian, the requirement to obtain Court approval for Stage 2 treatment for gender dysphoria was described by a doctor at the Royal Children’s Hospital in Melbourne as “very pathologising, very invasive and potentially very costly.”29 Although that characterisation of the prevailing legal climate can be disputed, it nevertheless is the current state of the law. In the absence of legislation or intervention by the Full Court of the Family Court or by the High Court, so it shall remain.
It is therefore respectfully suggested that it would be more constructive for those who advocate for the Court to have no role in making treatment decisions for young people with gender dysphoria to direct their attention towards advocating for statutory
reform. As a starting point, that could proceed by being placed on the agenda of the Law, Crime and Community Safety Council or it could be the subject of terms of reference to a federal joint investigatory parliamentary committee.
It is demonstrably true that the Full Court of the Family Court has been unable to consider and resolve the myriad complex issues surrounding medical treatment for young people with gender dysphoria. In defence of the Full Court, that is not its role. The Full Court in Re: Jamie was asked to decide whether or not a particular judge, in a particular case, fell into appealable error. In answering that question, the bench found themselves bound by High Court authority that necessitated the Court retaining jurisdiction over Stage 2 treatment decisions. It is a decision that was made at a particular point in time and at a particular stage in the development of legal principle and medical science, and must be recognised as such.
The task of regulating treatment decisions now falls to others. In the face of increasing numbers of young people identifying as gender diverse, and demanding treatment services, it is time that the legislature took responsibility for developing a sensitive, humane and practical system for decision making around their access to potentially life-saving medical treatment.