Gender and relationship recognition
The A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1961 (Cth) defines marriage as ‘the union of a man and a woman to the exclusion of all others’. Previously, Australian courts adopted the UK attitude that gender is determined at birth and cannot be altered (see Corbett v Corbett  2 All ER 33). However, the Corbett ruling was overturned in Australia in the The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. case of ReKevin  FamCA 94, where the An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. found that transsexual individuals are legally allowed to marry according to their new gender. In May 2018, the Victorian Parliament passed Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. that meant married transgender people no longer have to The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi. in order to change the sex on their birth certificate. New South Wales has passed similar legislation.
Special medical procedures
‘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:
- Stage one treatment: puberty blocking medication (fully reversible);
- Stage two treatment: cross-sex hormone treatment (partly irreversible);
- 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 2020), court approval is not needed to access stage one treatment; parental To agree to something being done, to approve an action or arrangement. See also informed consent. is sufficient (see Re Jamie  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:
- 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 The doctrine that courts must follow past rulings of higher courts in very similar cases. For example, the County Court of Victoria must follow relevant rulings of the Supreme Court of Victoria. The precedent comes from the reasons a judge has given for their decision in a case. See also case law. of the case of Re Marion (Secretary, Department of Health & Community Services) v JWB & 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.
- The child and their family may seek a court order declaring that the child is ‘Gillick competent’. A court A document that sets out what a person wants to happen to their money and other property after they die. 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  FamCA 310.
In the case of Re Kelvin  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.
In the case of Re Matthew  FamCA 161, the Family Court decided that authorisation from the Family Court for stage three treatment for gender dysphoria is not necessary when:
- the child has been diagnosed as suffering from gender dysphoria;
- the treating practitioners agree that the child is Gillick competent;
- the proposed treatment is considered to be therapeutic; and
- 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  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 A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. as to whether the child was Gillick competent. It was found – based on the Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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.