Ethos Spring 2021

Page 46


The orthodox muddle Gillick competence and consent to treatment for gender dysphoria

Monica Serci and Alexandra Elgue of Parker Coles Curtis revisit Re: Imogen — a parenting case that appeared before the Family Court of Australia last year.

With the Census remaining glaringly silent about sexual orientation and gender diversity in Australia and an election year kicking off, we consider it timely to revisit a parenting case that appeared before the Family Court of Australia last year — Re: Imogen (No. 6) [2020] FamCA 761. The case did not carve out new legal territory, but it was, and remains, an important reminder of the active role the law plays in the life of transgender and gender diverse teens in Australia, particularly those who are subject to parental conflict. Re: Imogen is a noteworthy case that confirmed whether or not a young woman named Imogen (aged 16 years and 8 months) should be allowed to start ‘Stage 2’ hormone therapy for gender dysphoria.


The backdrop The case was decided against the backdrop of the ongoing litigation in the Family Court of Australia considering issues of Gillick competence1 and consent to treatment for gender dysphoria for children under the age of eighteen. In the last nine years, the Family Court of Australia has handed down two significant judgements that have carved out the appropriate case law for such cases.

1. Gillick competence refers to the level of maturity a child capable of giving their own informed consent to medical treatment and that they have achieved a sufficient understanding and intelligence to enable them to understand fully what treatment was being proposed. At this stage, a child’s parents are no longer authorised to consent to medical treatment on behalf of the child.

Practitioners and advocates alike will be familiar with the 2013 judgement of Re: Jamie, notable for its overturning of existing law that young people must obtain an Order from the Family Court of Australia to commence stage 1 treatment for gender dysphoria (being the administration of fully reversible puberty blockers, which the Court deemed to be therapeutic) for Gillick or non-Gillick competent children in instances where the child’s parents and medical practitioners all give consent. Four years later, in Re: Kelvin, The Full Court of the Family Court of Australia deemed that the administration of stage 2 treatment for gender dysphoria, being the partially reversible use of hormone