The appeal began before the Full Court of the Family Court last Thursday. The case brought by Kelvin and his father was that transgender people under the age of 18 should not require court approval to commence stage two treatment for gender dysphoria.
Fiona Kelly, an associate professor in the law school of La Trobe University, wrote on The Conversation on Thursday that the requirement of court approval attracted criticism in legal, academic and medical circles, as well as the LGBTI community.
“Stage two treatment, which is usually pursued at age 16, involves the administration of either estrogen or testosterone, which causes the adolescent to develop the pubertal characteristics of the gender with which they identify,” Ms Kelly said.
“This follows stage one treatment, which delays puberty, and which does not require court approval because it has no irreversible consequences.
“Before stage two treatment is recommended, a multidisciplinary team consisting of a paediatrician, two mental health professionals, and a fertility expert, must agree treatment is in the child’s best interests.”
This has been the case since 2013, when the Family Court ruled in the Re: Jamie matter that parents cannot give consent for their children’s stage two treatment as it is a “special medical procedure”.
Ms Kelly noted that Australia is the only country that requires court involvement in the decision to undergo stage two treatment.
The ABC reported on Thursday that Kelvin was born female but began to publicly identify as male at 13 years old.
He received approval for stage two treatment in February, after the court found that he fully understood the decision.
However, Kelvin’s father and various medical, legal and transgender groups believe the requirement for approval should be abolished in some cases, the ABC reported.
Although stage two treatment is “a pretty powerful thing, it’s not surgical, it’s not medical, it’s not invasive”, counsel for Kevin’s father told the court.
Ms Kelly said the requirement also makes the process needlessly long and difficult.
“Almost 50 stage two cases have been heard by the Family Court since Jamie’s,” Ms Kelly said.
“In every case treatment was approved, with judges accepting the recommendation of the doctors.
“While this shows the court is not standing in the way of stage two treatment, the process takes an enormous toll on transgender youth and their parents. Recent research has found the often lengthy court process causes significant psychological harm to young people.”
Ms Kelly said transgender youth wait an average of eight months from the time treatment is recommended to the time their case is heard in court. Time is critical for transgender young people, as it can make the difference in successful treatment.
The delay can also take a significant psychological toll on already vulnerable people, not to mention the financial burden for their parents, which Ms Kelly said can exceed $10,000.
The court will consider the classification of stage two treatment as a special medical procedure. Ms Kelly said Kelvin’s lawyers will likely argue that this term is limited to non-therapeutic treatments, while stage two treatment is “inherently therapeutic” as it is prescribed as a medical treatment for gender dysphoria.
“While it’s difficult to predict what the court will decide in this case, there’s strong judicial and academic support for the arguments Kelvin’s lawyers will make,” Ms Kelly said.
“A judge in an earlier, similar case stated it is ‘inhumane’ to force young people to get a judge’s permission to treat their gender dysphoria.
“Today’s case provides the Family Court with an opportunity to decide it’s no longer legally necessary to do so.”