Transgender and transsexual matters


Gender and relationship recognition

The Marriage Act 1961 (Cth) defines marriage as “the union of a man and a woman to the exclusion of all others”. Previously, Australian courts adopted the UK attitude that gender is determined at birth and cannot be altered (see Corbett v Corbett [1970] 2 All ER 33). However, the Corbett ruling was overturned in Australia in the appeal case of Re Kevin [2003] FamCA 94, where the court found that transsexual individuals are legally allowed to marry according to their new gender.

In May 2018, the Victorian Parliament passed legislation that meant married transgender people no longer have to divorce in order to change the sex on their birth certificate. New South Wales has passed similar legislation.

Special medical procedures

“Gender dysphoria” is a condition where a person’s sense of their own gender contradicts their biological sex. Hormonal treatment for gender dysphoria in young people involves two steps:

1 Stage one treatment: puberty blocking medication (fully reversible);

2 Stage two treatment: cross-sex hormone treatment (partly irreversible).

In Australia, at the time of writing (30 June 2017), court approval is not needed to access stage one treatment; parental consent is sufficient (see Re Jamie [2013] FamCAFC 110).

However, accessing stage two treatment has historically been less straightforward. The courts have classified stage two treatment as a form of special medical procedure that can only be performed on children with court approval.

Previously, there were two avenues that could be followed to access stage two treatment:

1 In Re Jamie, the court decided that stage two treatment is a non-therapeutic treatment (and therefore is beyond the scope of parental consent). This follows the High Court precedent of the case of Re Marion (Secretary, Department of Health & Community Services) v JWB & SMB (1992) 175 CLR 218, where the court decided that non-therapeutic treatment (e.g. sterilization) requires a court order, and falls outside the ordinary scope of parental power to consent to medical treatment.

2 The child and their family may seek a court order declaring that the child is “Gillick competent”. A court will deem a child to be Gillick competent if it believes that the child is sufficiently intelligent and mature to fully understand what is involved in stage two treatment. If a court decides that a child is Gillick competent, the child has authority to authorise stage two gender dysphoria treatment, as was the case in Re Spencer [2014] FamCA 310.

In the case of Re Kelvin [2017] FamCAFC 258, the Full Court of the Family Court handed down its landmark decision confirming that court authorisation is no longer required for stage two treatment of gender dysphoria where the child is Gillick competent.