Gender dysphoria – a child’s right to self determination
12th Feb 2016
The shortcomings inherent in a democracy in my view are largely centred around the failure to recognise our fellow human beings as equal, irrespective of their persuasion, sexual or political, religion, race or occupation. From a legal perspective, groundbreaking developments in human rights are rarely advanced by the judiciary, which is inherently conservative when it comes to change. However, in late 2015, the Family Court of Australia made significant advances in recognising a person’s right to undergo medical procedures to change their gender where evidence showed that gender re-assignment was in the best interests of the child.
These types of decisions have usually been at the forefront of European Courts, particularly the European Court of Human Rights, which has commented on the rights of individuals to undergo medical procedures in circumstances where they have always identified themselves as being of a different gender.
However, there has been a developing trend in the Family Court of Australia, to recognise what is in a child’s best interest, and the capacity of children or those who suffer disability to have a right to self-determination.
In the case of Re:Martin, the parents of a child sought a declaration from the Family Court for their child to undergo cross-sex hormone treatments and potentially gender re-assignment surgery.
The application considered evidence from the family and treating doctors, who provided detailed depositions about the child’s experience of gender, which displayed a history of mental illness and self-harm associated with gender dysphoria.
In Re: Martin the High Court authority of Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 [‘Marian’s case’] was followed. In that case it was accepted that in order to overcome legal incapacity by virtue of age or disability, that court intervention is required. In Marian’s case a declaration was sought from the court to allow a 14-year-old intellectually disabled girl to undergo two surgical procedures referred to in that case as ‘sterilisation’. The decision confirms that court authorisation, where it concerns invasive, irreversible and major surgery, is required 
In RE:Martin, it was determined that cross-sex hormone treatment for gender dysphoria was in the best interests of the child. Nonetheless, it would appear that this declaratory right in the Family Court is determined largely on a case-by-case basis. Therefore, any such declaration would need to undergo an independent examination of the circumstances of each case involving children or those who suffer an intellectual disability.
The decision is important from a human rights perspective in that it provides a detailed analysis of the law, particularly in cases where children suffer gender dysphoria and what represents the best interests of a child who is at risk of suffering irreparable psychological harm.
It is clear that this decision, and certainly the line of authority, emanating from the Family Court of Australia, provides a greater recognition of transgender rights in Australia, particularly in cases concerning individuals without legal capacity who might otherwise have held little or no rights to determine their own futures.
In my mind, this decision raises greater questions of equality in the Australian society we now live in. If our courts are prepared to recognise the rights to self-determination of children and those who suffer an intellectual disability, should we not go further to recognise those individuals who make choices freely and on an informed basis in all aspects of life in Australia? Perhaps this decision will go some way to providing a somewhat veiled message to our Federal Parliament that, in the modern age, a democracy is only a true democracy when equality and the right to self-determination reigns supreme.
Joshua Dale is an Associate at Carroll & O'Dea Lawyers and is chair of the NSW Australian Lawyers Alliance Human Rights and Criminal Justice Committee.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 See Gillick v West Norfolk and Wisbech Area Health Authority  AC 112; RE:Jamie (2013) FLC 93-547  FAMCAFC 110; Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 and RE:Martin  FAMCA 1189.
 Re: Martin  FAMCA 1189
 See paragraphs -.