People who identify as being born the wrong gender might feel strongly that they are not the gender that they appear to be. For someone with gender dysphoria, they do not identify with their own physical traits, a male might feel instead that he is actually a female or vice versa. That person would have an intense desire to change their gender and to be accepted by others as the gender they identify.
The term gender dysphoria used to be labelled “gender identity disorder” as medical professionals perceived there was a discrepancy between the body and mind. The term gender dysphoria is now used, as ones internal sense of gender is not considered a mental illness by medical professionals and the courts.
The Family Courts carry the obligation based on evidence to determine whether a young person has the capacity to fully undergo gender dysphoria treatment. The courts have been involved in authorising consent to a three-stage medical therapy known as the “Dutch Protocol”. Stage one involves puberty-blocking hormones known as gonadotrophin-releasing hormone (GnRH) which are administered to a patient. In stage two, administration of hormones of the opposite sex (testosterone and oestrogens) are given. Stage three involves irreversible surgery.
The approach to the three-stage process for gender dysphoria treatment and when the Family Court involvement is required is set out in the case of Re Jamie (2013) FLC 93-547.
Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case (1992) 106 ALR 385 which attracted jurisdiction of the Family Court of Australia under s 67ZC of the Family Law Act 1975 (Cth) (“the Act”) requiring court authorisation.
Furthermore, if there is a dispute about whether treatment should be provided in respect of either stage one or stage two and what form treatment should take, then it is appropriate for this to be determined by the court under s 67ZC of the Act.
In relation to stage two treatment, court authorisation for parental consent will remain appropriate unless the child concerned is competent as established in the case Gillick v West Norfolk & Wisbech Area Health Authority  AC 112. If the child is Gillick competent then the child can consent to the treatment and no court authorisation is required, absent any controversy.
In the case Re: Jan  FamCA 1171, Jan (born female and identifies as male) is aged 17 years and 11 months, his parents made an application to determine his competence to consent to stage 2 of his hormonal treatment by the administration of testosterone that is directed to making physical changes in him. The application was supported by evidence from the mother and father who supported the treatment. The application was further supported by the evidence of Dr L, who is an endocrinologist, Ms S, who is a legal support officer. There was no evidence from the psychiatrist, Dr K as to the diagnosis, or as to the competence to consent.
The issue for the court to deal with was whether Jan was Gillick competent to consent to the treatment. The question of competence was set out in Marion’s case. The High Court, in Marion’s case, rejected the notion of a fixed-age approach to determining competence. The court rather determined that competence had to be considered in each case based upon the individual characteristics of the child. The test was adopted from an extract in the English case of Gillick, which requires that a minor is capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
The court found that Marion’s case makes it clear that there is no fixed-age cut off but a question of fact based on each child’s individual characteristics.
There was no psychiatric report from psychiatrist Dr K, nor an affidavit. The endocrinologist attributes the primary role of diagnosis to the psychiatrist, which the court did not have available. This did not mean that Jan was not Gillick competent, but the court could not find Jan Gillick competent based on the lack of evidence from the psychiatrist.
The court was unable to make the key finding that Jan suffers from gender dysphoria as the evidence presented to the judge on the application was insufficient to establish the case. The case outlines the importance of a psychiatric report to establish competence to consent.
Similarly in the case Re: Lucas  FamCA 1129, Justice Tree stated with reluctance that the nature of the treatment at stage two requires that the court had to determine whether Lucas, a 17-year-old who wanted to start taking testosterone to develop as male was Gillick competent. It seemed harsh to his Honour “to require parents to be subject to the expense of making application to the court with the attended expense, stress and possible delay when the doctors and parents are in agreement but I consider myself bound by what the High Court said in Marion’s Case”.
The evidence supported the findings that Lucas was highly intelligent with a long standing history of symptoms consistent with gender dysphoria, which commenced from a time well prior to puberty and had a long history of depression, anxiety and gender dysphoria.
Lucas’s mental health issues seemed to the court to be derived from the loathing of his pubescent female body, which symptoms had abated with the commencement of stage one treatment and transitioning to male, with the support of his parents, family and friends.
The court considered that Lucas was fully aware of the risks associated with stage two treatment as detailed in the affidavits.
Justice Tree stated that Lucas satisfied the Gillick competent as “His parents fervently support his wish,” “Unanimously, his counsellors, doctors and specialists all agree the treatment should start now. And yet before he can commence treatment, Lucas needs this court’s permission.”
When permission for treatment was granted, Justice Tree stated: “Lucas’s face relaxed into relief, and his mother … flashed him a quick, but revealing, smile. Lucas’s father commenced to openly weep … and remained doing so for the balance of the hearing. A tremendous burden was lifting.”
Justice Tree stated at paragraph 72-73 “The difficulty is that it is unlikely that Re Jamie will be revisited in the near future, simply because as I have indicated, the court invariably accedes to the applications.” “Therefore, in my view, there is an urgent need for statutory intervention in order to undo the consequences of Re Jamie. The sooner that children such as Lucas and their families do not have to endure the ordeal of litigation in order to get on with their lives, the better.”