The Australian Professional Association for Trans Health (AusPATH) was established in 2009 and is Australia’s peak body for professionals involved in the health, rights and well-being of all trans people, including those who are gender diverse and non-binary. The AusPATH membership comprises approximately 250 experienced professionals working across Australia.
We wish to first and foremost congratulate Imogen that she can now proceed with her own wishes to medically affirm her gender. AusPATH cares deeply for your wellbeing and gender euphoria. We affirm your gender, your trans experience and value the immense contribution you have made to the health and rights of trans and gender diverse people in Australia. Thank you.
Background to Re Imogen
Over the course of the last eight years, the Family Court of Australia has made a number of judgments related to the treatment, care and agency of trans and gender diverse young people. First, the ruling of Re Jamie (2013) overturned existing law that required an adolescent and their family to go to The Family Court of Australia to gain authority to commence puberty blockers prior to 18, provided the parents and the young person’s medical practitioner were in agreement.
The second ruling, Re Kelvin (2017) enabled young people to commence gender affirming hormones prior to age 18 without Family Court authorisation. In this case, the Court did not comment on how a young person seeking to access gender affirming hormones may do so if their parents were in dispute about the matter.
The effect of this was that gender affirming hormonal treatment (‘Stage 2’) was deemed therapeutic and treatment for which consent no longer lay outside the bounds of parental authority (nor required the Court’s approval, reversing the position in Re Jamie). Re Kelvin also determined that, in respect of hormonal treatment, if the child, the parents and the medical practitioners agree a child is Gillick competent, there was no need for the Court to determine Gillick competence (reversing the position in Re Jamie).
Finally, Re Kelvin is authority for the rule that if all parents and medical practitioners agree, a Gillick-competent child can consent to gender affirming hormonal treatment, and, if a child is not Gillick-competent and the treating medical practitioners agree, the child’s parents can consent to commencing hormonal treatment without court approval.
This ruling was further clarified in this judgment of Re Imogen (2020) to mean that, in Australia, young people can only receive hormone treatment when there is no dispute between parents (or those with parental responsibility), the medical practitioner and the young person themselves with regard to:
- the young person’s Gillick-competence; or
- a diagnosis of Gender Dysphoria; or
- proposed treatment for Gender Dysphoria.
Any dispute requires a mandatory application to the Family Court.
We note that the Court:
took the view that Imogen, the young person in this case:
satisfies the criteria for the DSM-5 diagnosis of Gender Dysphoria (satisfying both criteria – gender incongruence and associated distress) (182), and this diagnosis was not precluded or otherwise undermined by presence of other mental health issues (176, 182);
is Gillick competent (199); and
should continue to receive gender affirming treatment, moving on in her case to gender affirming hormones (‘Stage 2’) (231);
We note further that the Court:
found that there was no evidence that she had “been infected by contagion as a result of involvement with the internet or social media” (197); and
was troubled by Imogen’s self-medication, seeing it as evidence of the ‘dangers that have been created by the dispute in this case’ (208).
We are pleased that the Court:
recognised that the gender affirming model of healthcare is the consensus medical approach in cases of Gender Dysphoria (224);
accepted as a ‘risky and unproven strategy’, both in this case and as a broader approach for treatment, the psychotherapeutic approach offered as an exclusive alternative that would delay medical gender affirmation for up to 12 months (226);
rejected that it would be in Imogen’s best interests for an order to be made requiring her to undergo psychotherapy (239) and determined that a medical gender affirming approach to initiate gender affirming hormones (‘Stage 2’) was the correct one for Imogen (231);
listened carefully to Imogen’s own wishes (205, 207) regarding treatment, as well as the views of the healthcare providers who best knew her and her circumstances;
at various points throughout the judgment, explicitly recognised the best interests of the trans young person as the ‘paramount consideration’ (e.g. 35, 44);
clarified that the informed consent and approval letter protocols are lawful models of gender affirming healthcare by stating that ‘absent any dispute by the child, the parents and the medical practitioner, it is a matter of the medical professional bodies to regulate what standards should apply to medical treatment’ (63); and
displayed throughout a capacity to appreciate the complexities of research into gender affirming healthcare and trans health more broadly, including about suicidality (155) and that lost-to-follow up figures cannot be interpreted as proof of affirmation regret in follow up studies (158, 159).
We are, however, disturbed that the Court has:
clarified Re Kelvin and Re Jamie, that any young person under 18, diagnosed by their medical practitioners as having Gender Dysphoria, assessed as Gillick competent, and desiring medical gender affirming treatment, but whose parents are in dispute about the proposed treatment, the Gillick competence of the child and/or the diagnosis, is required to make an application to the Family Court of Australia to access gender affirming treatment; and
that medical practitioners seeing Gillick-competent patients under the age of 18 are unable to initiate puberty blockers or gender affirming hormonal treatment ‘without first ascertaining whether a child’s parents or legal guardians consent to the proposed treatment’ (63).
In view of the above, AusPATH believes that the judgement contradicts the principle that the child’s best interests are paramount.
Therefore, AusPATH asserts that this judgement:
will cause distress across the trans community, to families with trans children, and to the medical professionals and teams providing care to young people seeking such medically necessary care;
means that many trans young people will face uncertainty and delays to medically necessary treatment, and their families will face significant or prohibitive costs and, in the cases of an absent or unsupportive parent, a time-consuming court process; and
places an additional burden on medical practitioners providing gender affirming healthcare by requiring additional, often complex, processes with families and by being forced to advocate in court for their patients.
AusPATH further asserts that:
access to timely, culturally-safe and person-centred gender affirming healthcare is critical to protect trans children, adolescents and adults from negative health and wellbeing implications. Delaying treatment for any trans person – but particularly a trans young person – can lead to increased risks of anxiety, depression, self-harm and suicidality;
young people of sufficient maturity should be allowed to provide informed consent to their own treatment, in partnership with their treating medical practitioners, without being put to the expense, delay, public profile and undermined privacy involved in court authorisation when parents are in dispute;
in many cases where parents, carers or guardians are in dispute, this judgement will result in a trans person waiting until they are 18 to access hormones, or, as in Re Imogen, purchase hormones without medical monitoring (111); and
the medical care needs of trans young people should be treated with the consistency of the medical care provided for other health issues along with previous judgements made that centre and listen to the voice, agency and capability of the young person themselves.
AusPATH looks forward to resolutions in the law that advance and protect the best interests, rights and health of trans young people in Australia, and make it possible for the medical practitioners to provide the medically necessary gender affirming treatment and care.
Finally, AusPATH calls for the Australian Parliament to consider amending the Family Law Act 1975 (Cth) to give effect to correcting the judgment of Re Imogen so that trans young people are not adversely affected by the judgment.
AusPATH Board of Directors
AusPATH Policy Committee
AusPATH gratefully acknowledges the pro bono legal counsel provided by Nicholas Stewart of Dowson Turco Lawyers.
21 September 2020