The recognition of gender dysphoria and the acceptance and normalisation of people (and especially young people) experiencing gender dysphoria has led to an increase in cases relating to young people receiving treatments. Treatments for gender dysphoria fall into three stages. Stage 1 treatment is puberty blocking and is a treatment which is reversible, Stage 2 is hormone therapy, and Stage 3 is surgery, a treatment which is generally not undertaken before adulthood. The Supreme Court of Queensland has recently decided a matter relating to Stage 1 treatment of gender dysphoria.
In this matter, the Supreme Court exercised parens patriae jurisdiction, which allows the State Supreme Courts to act in the best interests of a child, without the need to acquire consent from the child’s parents. When exercising parens patriae jurisdiction, the court must act in the manner which a ‘wise, affectionate and careful parent would act for the welfare of a child.’
The application was made by the mother of a child, “A”, for a declaration that she can consent to Stage 1 puberty blocking medical treatment for her child without the requirement to obtain the consent of the father. “A”, who was 12 years old and born a male, had begun to identify as a female and use “she/her” pronouns from her fourth birthday onwards. Although no formal name change had taken place, “A” had been diagnosed with gender dysphoria.
“A”’s mother and father has been estranged since May 2017, against a background of his illicit drug use and emotional, verbal and physical abuse which was directed towards both “A” and the applicant. The whereabouts of the father was not known, nor did the father know the location of “A” or the applicant, meaning that there was no consent from the father to progress with Stage 1 treatment. The recent decision of Re Imogen held that medical practitioners could not initiate Stage 1, 2 or 3 treatment on an adolescent under the age of 18 without firstly obtaining consent from the child’s parents or legal guardians.
Given the background, Lyons SJA determined that ‘the applicant may give valid and lawful consent to the administration of medication … without the need for seeking or obtaining the consent of “A”’s father to the treatment.’ This was because ‘[d]elaying treatment to seek and obtain “A”’s father’s consent is not in the best interests of “A”.’ It is unclear whether the Family Court would be willing to follow this decision and approve treatments without a parent’s consent.
It must be noted that in regards to Stage 2 and 3 treatment, Lyons SJA reiterated that the Family Court of Australia would be the most appropriate forum given its expertise in matters of this nature.