Same-sex and de facto couples and families

Prior to 2017, the Marriage Act 1961 (Cth) defined marriage as ‘the union of a man and a woman to the exclusion of all others’.

However, on 9 December 2017, the Act was updated to allow for marriage equality, and the definition was updated to define marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.

Australian courts had historically 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 to change the sex on their birth certificate. New South Wales has passed similar legislation.

‘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 stages; surgical intervention is the third stage:

1. Stage one treatment: puberty blocking medication (fully reversible);
2. Stage two treatment: cross-sex hormone treatment (partly irreversible);
3. Stage three treatment: surgical treatment, which includes (but is not limited to) chest reconstructive surgery, phalloplasty, hysterectomy, bilateral salpingectomy, creation of the neovagina and vaginoplasty.

In Australia, at the time of writing (1 July 2022), 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 and Community Services) v JWB and 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.

This precedent was later affirmed in the case of Re Max [2021] FamCA 290, where it was held that the administration of stage two treatment was a decision for the child to make insofar as they had the competence to make it. The court confirmed that the relevant issue to resolve is whether or not the child is Gillick competent and therefore capable of consenting to stage tow treatment themselves.

In the case of Re Matthew [2018] FamCA 161, the Family Court decided that authorisation from the Family Court for stage three treatment for gender dysphoria is not necessary when:

1. the child has been diagnosed as suffering from gender dysphoria;
2. the treating practitioners agree that the child is Gillick competent;
3. the proposed treatment is considered to be therapeutic; and
4. there is no controversy as to whether the treatment should be administered (e.g. neither of the child’s parents is opposed to the treatment).

In the case of Re Ryan [2019] FamCA 112, the facts of Re Matthew were distinguished because, as in this case, there was a controversy (i.e. the child’s parents disagreed about whether stage three medical treatment should be administered). Because a controversy existed, the Family Court was required to make a determination as to whether the child was Gillick competent. It was found – based on the evidence from the expert witnesses, the family consultant, and the child himself – that the child had the requisite understanding to make the decision and comprehend its consequences. Therefore, it was ordered that the child was Gillick competent and capable of consenting to the stage three treatment on his own behalf.

In the recent case of Re G3 [2021] FCWA 99, the Family Court of Western Australia considered the requirements for a child to consent to stage two treatment. The circumstances of this case were different to those in Re Ryan as there was no controversy and Gillick competence was clearly established.