Parental gender affirmation and children’s best interests in Australian family law

Abstract

This article examines how the Australian family courts have considered parental gender affirmation when determining the best interests of children in post-separation parenting disputes under Part VII of the Family Law Act 1975 (Cth). It analyses three features of the jurisprudence which arguably challenge the acceptance of transgender and gender diverse (‘TGD’) families in Australian family law: the potential risk of harm to children, and the impacts on parenting capacity, from a parent affirming their gender; emphasis upon the uniqueness of parental gender affirmation as a childhood experience, with attendant risks to children from ‘public’ exposure; and the importance of language to the social affirmation of gender and for representing the perspectives and experiences of TGD parents and their children. The author argues that as more post-separation parenting disputes involving parental gender affirmation come before the Australian family courts, they will contribute to making TGD families more ‘visible’ in law, thereby promoting greater understanding of a family form that may still be labelled ‘ambiguous’, ‘novel’ or lacking an ‘established social or legal script’.