Rethinking Treatment for Children with Gender Dysphoria and the Family Court's Welfare Jurisdiction

Abstract

The authorisation of treatment for children with gender dysphoria has been found, inappropriately, to fall within the Family Court of Australia’s welfare jurisdiction. For a particular medical treatment to attract the Court’s supervisory jurisdiction it must be found that the child is not competent to consent to the treatment themself and the treatment must fall within the ambit of what the Court has called a ‘special medical procedure’. The intent behind the exercise of the Court’s welfare jurisdiction is to safeguard the best interests of children.Contrary to previous decisions of the Court, treatment for gender dysphoria does not fall within the factors identified by the majority of the High Court in Marion’s Case as being indicative of a ‘special medical procedure’. The practical effects of this mistaken characterisation are, paradoxically, detrimental to children with gender dysphoria. In addition, the ability of mature children to authorise partially irreversible treatment for themselves has been unnecessarily complicated, and measures should be taken to clarify and standardise the law in this area.