Kelvin 2017

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Court: Family Court of Australia                    

Relevant Legislation: Family Law Act 1975  

Citation and full judgement: Re: Kelvin [2017] FamCAFC 258

This case involved a 17 year old transgender boy, Kelvin, who sought hormone therapy to assist in his transition from his sex assigned at birth to his real gender. This was a landmark case that had major implications for all transgender youths and their families. Following the judgement families no longer need to seek court approval for Stage 2 treatment, hormone therapy. This removed the stress of the court process and granted greater bodily autonomy to transgender youths in Australia.

Historical Background:

Gender Dysphoria

Prior to this case families of children experiencing gender dysphoria were required to go through a lengthy and difficult court process to receive approval for the necessary medical treatment. Gender dysphoria is a condition where an individual identifies with a gender that does not match their biological sex assigned at birth.[1] It is generally agreed that all people who experience gender dysphoria are transgender, or gender diverse, but not all transgender people experience gender dysphoria.[2] Gender dysphoria is determined by medical professionals and treated with a two or three step process, alongside psychological treatment. Stage 1 treatment involves puberty blocking medication to block the child’s biological onset of puberty and, Stage 2 involves hormone administration to encourage development of physical attributes of the child’s identified sex.[3] Following these treatments some people will opt to undergo surgery such as gender reassignment surgery, mastectomy (removal of the breasts) or breast augmentation (to increase breast size).  The primary issue was that decisions of hormone therapy were in the ultimate hands of the Courts and not the individuals, their families, and their health professionals.

The Issue:

Kelvin first began to identify with being transgender at age nine and publically came out as male the age of 13.[4] Kelvin had not undertaken Stage 1 treatment, which you do not need court approval for, and rather took the contraceptive pill to stop menstruation. From the onset of puberty Kelvin experienced distress and at the age of 17, after consultation with a team of doctors, he was recommended to undergo Stage 2 treatment – hormone therapy.[5] Kelvin’s father made an application to the Family Court for his son to commence this stage of treatment.

The case was heard by a five judge bench in the Family Court of Australia and parties to the court included the Inner City Legal Centre, Commonwealth Attorney-General, the NSW Department of Family and Community Services, A Gender Agenda, Australian Human Rights Commission and the Royal Children’s Hospital.[6] Kelvin was present for the proceedings and was supported by a court room filled with people from the transgender community.[7] Kelvin’s lawyers asked the court to overturn the 2013 decision made in Re: Jamie, where the court held that a minor can consent to Stage 2 only if the court finds they are ‘Gillick competent’- a test that decides whether the child has sufficient competency to fully understand what is proposed.[8] Although Re: Jamie is viewed positively in some respects, it upheld the need for families to apply to the Court when seeking stage 2 treatment.

Relevant Legislation:

The Family Law Act 1975

The Family Law Act addresses the rights of children and the responsibilities of their parents to ensure that they have meaningful relationships with both of their parents, whilst remaining safe from harm.[9] This case looked at section 67ZC, which addresses the welfare of children and the role the court plays in that.

Section 67ZC – orders relating to the welfare of children

  1. In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
  2. In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Argument:

The Plaintiff – Kelvin’s father

Senior counsel and the intervenors argued that given new medical evidence the risk of not undergoing treatment outweighed the risks of undergoing it. Senior counsel cited evidence, gathered at the Royal Children’s from 2003-2017, that found 96% of patients treated with gender dysphoria continued to identify as transgender into late adolescence. The main argument was that the newly ascertained therapeutic value of the treatment should allow the court to depart from the decision made in Re Jamie[10].

Outcome:

Judgement

The majority of the Family Court of Australia held that as long as the child consents to the treatment, treating medical practitioners agree that the child is Gillick competent to give that consent, and parents agree to the treatment then it is not necessary for an application for treatment to be made to the court.[11]  Furthermore, it was determined that it would no longer be necessary for the court to ‘make orders relating to the welfare of children’ (s67ZC)[12], in the aforementioned instance. This outcome was a win not only for the family involved but for families all over Australia. It indicated changes in attitudes towards transgender people, which could not have been achieved without the continued fight of transgender activists all over the world who challenge bad laws.

Responses:

From young transgender people and their families

This decision came as a relief for young transgender people and their families. After the decision was handed down, one parent of a transgender child stated:

“When I told my son about the decision in Re Kelvin he cried with relief. No longer would our family have to go through the difficult and expensive process of going to court to enable him to continue his transition. Why should my child have to prove himself in court, he has done nothing wrong.”[13]

Similarly, one young transgender person explained:

“I have been on puberty blockers for 8 months and I’m desperate to start stage 2 hormones since I came out to my family and peers just over a year ago. Stage 2 hormones will make my body change to match how I feel on the inside. My doctors and counsellor agree that this is the right course for me. My parents and friends are all really supportive. When I found out that we would have to get a lawyer and go to court and that it could take 6-12 months or longer to get through all of that I was incredibly devastated and it made my mental health even worse. Not having to go to court will be a huge relief for me and my family.”

In addition to removing court proceedings, the case broke down further barriers by lessening the economic and time burden previously in place for families of transgender youths. A study by Dr. Fiona Kelly found that cases could cost upwards of $10,000[14], underlining concerns of unequal access for low income families. The study also found that wait times could be up to eight months[15], which increases the risk of harm for the child and stress on family.

Notes:

[1] McAllister, G 2018, ‘Gender dysphoria Australia: the judicial response in Re Kelvin,’ Precedent, 145, pp. 40-43.

[2] Ibid.

[3] Australian Centre for Health and Law Research, 2016, Treatment for childhood gender dysphoria and the law in Australia.

[4] Hall, L 2017, ‘Transgender teen heads to Family Court seeking change in hormone laws,’ The Age, 21 September, Australia.

[5] Ibid.

[6] Hall, L 2017, ‘Transgender teen heads to Family Court seeking change in hormone laws,’ The Age, 21 September, Australia.

[8] Australian Centre for Health and Law Research, 2016, Treatment for childhood gender dysphoria and the law in Australia.

[9] Family Court of Australia 2018, Parenting cases – the best interest of the child, viewed 15 May 2019, <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-law-in-australia/parenting-cases-the-best-interests-of-the-child/>.

[10] Re: Kelvin [2017] FamCA 258 at 160-165.

[11] Painter, M & Palaniappan, S, ‘Re: Kelvin – a turning point for gender dysphoria cases in Australia,’ LSJ, 41, pp. 72-73.

[12] Family Law Act 1975 (Cwlth).

[13] A Gender Agender (AGA) 2017, A Gender Agenda media statement – Re Kelvin.

[14] Kelly, F 2017, ‘Should family court have to approve hormone treatment for transgender teens?,’ The Conversation.

[15] Ibid.

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