Australia is the only country that requires tribunal authorisation for hormone therapy for transgender children. Its time to change this unnecessary and stressful law
Imagine you are a 16 year-old with gender dysphoria, that is, you feel deeply that your body is incongruent with your gender identity. The prospect of developing the adult features of your biological sexuality fills you with anxiety, fills you with depression.
You want to start cross-sex hormone therapy, which means youll begin developing the features of the opposite sex, your true gender. You are certain after a life of confusion that you want to live a happy life as a transgender person.
Martin was a little boy experiencing these feelings. According to his mum he was born a boy, however through no defect of his own,( was) physically formed in the scalp of a girl. He always had stereotypically male interests like soccer, karate and dinosaur. He was a tomboy the only girl wearing pants in the Year 6 school photo.
But at age 12, Martin changed. He became introverted, a hermit, depressed and dark . The school counsellor told his mother that Martin has the feeling of suffocating inside a body[ he] does not associate with. The more feminine his body became, the more Martin withdrew from the world. He cut his hair and wore the clothes of a son, but he bound his growing breasts every day, so tight that it caused ache and shortness of breath, just so he was able to fit in to what society sees as normal.
He was cutting himself to relieve the pain he felt inside, and then his mother discovered he was researching ways to kill himself.[ He] has the feeling of disgust at the sight of his female anatomy when showering. Getting his period was the final straw on the path to contemplating suicide.
Our family unit is suffering. When I say goodbye to him every day, she told a court recently, I sit hoping he comes home from school. Every day I tread water and counsel his depression, hoping that he can hang on.
Meanwhile, Martins physicians had recognised that his mental health would improve significantly if he started testosterone therapy to masculinise his body and voice as soon as possible. His parents also supported Martin undergoing cross-sex hormone therapy.
But, under current law, Martins parents and doctors had to apply to the family court to authorise the testosterone treatment. Legally, his mothers didnt have authority to consent to it. And his doctors didnt have authority to determine whether he was competent and mature enough to attain the decision for himself.
There are strong debates against such a situation. Forcing young people with gender dysphoria to apply to the family court is extremely stressful and expensive for them and their families. Indeed, there is evidence that some families have forgone the court application( and therefore the therapy) because of its prohibitive expense. Australia is the only country where this kind of application is necessary. And, in most cases, the court will simply follow the doctors advice.
How did the law come to this? Since 1992, courts have recognized a special category of medical procedures which have such serious consequences that special rules apply to them. For these procedures, a childs mothers do not have authority to provide consent, and their doctors do not have authority to determine whether they are competent to construct the decision themselves. Merely a court can do these things.
The family court treats cross-sex hormone therapy as a procedure which falls into this special category. Therefore a court application is a prerequisite.
However, just before Christmas, Justice Victoria Bennett released in the family court a judgement which strongly criticised this approach. That decision was delivered in Martins Case.
I wont go into the legal details suffice to say that in Martins Case , Justice Bennett argued that hormone therapy for gender dysphoria should never have fallen into the special category of medical procedures in the first place. The therapy is qualitatively different to the other procedures which fall into that class. In other words, the special rules should never have applied.
Martins Casedoes not change the law, because Justice Bennett was a single magistrate in a lower court. Her remarks are simply commentary. But she has done the intellectual hard yards for a higher court the full family court to change the law on appeal. She explicitly invited the full family court to do so, and I second that invitation.
Furthermore, in Martins Case, Justice Bennett legal arguments to complement the arguments that I mentioned earlier. In lighting of these arguments, federal legislators should step in and change the law as it currently stands.
It should not fall on the shoulders of a family and a child in distress to go through the ache and expense of an appeal to the full family court.
If reform occurred, what protections would remain for children? Well, a doctor would still need to determine whether the child is competent to decide for themselves whether to have the procedure( something doctors do every day for other procedures ). If their own children was not competent, their parents would need to provide permission( again, something mothers do all the time ). If there was a disagreement between any of these people, they could still apply to the court, which could then induce government decisions in the best interests of the child.
Martin was due to commence testosterone treatment last week. His journey to eventually shed the scalp of a girl he was born into was under way.
I now find a little smile as he gets closer to being allowed to be his true ego, his mother says.
Hopefully his instance might mean that other kids with gender dysphoria, and their families, do not need to go through the stressful rigmarole of applying to the court for something which the child, the parents and the doctors should be able to determine themselves.
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