Rethinking Re Kelvin: A Children’s Rights Perspective on the ‘Greatest Advancement in Transgender Rights’ for Australian Children

Abstract

Australia was, until recently, the only country in the world in which court authorisation was required for the medical treatment of children diagnosed with gender dysphoria. The decision of the Full Court of the Family Court of Australia in Re Kelvin (2017) 351 ALR 329 swung the pendulum of decision-making authority for transgender children’s medical treatment from the Family Court back to the child and the child’s parents and treating medical practitioners. The Re Kelvin decision was touted a victory for transgender children’s rights. This article re-reads the Full Court’s judgment from a children’s rights perspective. It argues that the Full Court was not concerned with the rights of transgender children at all. Rather, transgender children benefit incidentally from the Full Court’s decision, which was about the extent to which the Family Court should encroach upon parents’ responsibility to make medical treatment decisions for their children, consistently with the latest developments in medical science.