According to Dr Kelly, the law around hormone treatment is the product of a single decision made by the Family Court of Australia, in a case known as Re Alex (2004).
Alex was a young boy who lived in care under the Department of Human Services. He wanted stage-one puberty blockers treatment, however, he didn’t live with his parents so he couldn’t obtain parental consent. His carers went to the court to request permission.
‘The decision of the judge was made in the context of a child whose parents couldn’t consent because they weren’t part of his life,’ Dr Kelly says. ‘In many ways, the law we have now is a legacy of that scenario.’
Another legacy is the impact the court process has on children, families and the medical system. Dr Kelly says the process is costly, psychologically harmful and causes dangerous delays. To alleviate the toll, she has devised a practical toolkit for families navigating the court system.
The impact on the child
When Dr Kelly interviewed families who had been through the court process, she found the psychological impact was the greatest concern for parents.
The process is arduous: the child needs approval for hormone treatment from six medical professionals. Having cleared that hurdle, they’re understandably excited to start treatment, but then they have to negotiate with the court – and that can take another eight to twelve months.
Having gained approval for hormone treatment, children are excited to start treatment, but they have to negotiate with the court – and that takes time.
During that period of limbo, ‘parents uniformly watched their child’s mental health deteriorate’, reporting increased anxiety and depression.
One young girl began to enter male puberty even though she was already receiving the highest dose of stage-one puberty blockers; she ‘threatened to commit suicide if her voice broke’.
Another girl was admitted to a psychiatric unit while waiting for her case to proceed. ‘The child wasn’t just a bit down. We’re talking serious diagnosis and in need of serious medical assistance,’ Dr Kelly says.
As she highlights, ‘a lot of these kids are not identifiably transgender, and are concerned about that being exposed to the world’. One child was worried about who would read the legal documents as they were drawn up. Would the secretary see them? What confidentiality measures were in place?
The impact on parents
According to Dr Kelly, the process also takes a huge toll on parents, who ‘often deal with lawyers and health professionals, and have to tell their story over and over again’.
Costs are another barrier. Even with pro bono lawyers, the total cost can be around $8,000 to obtain medical documents and psychiatrist reports. Add court fees, and the financial pressure mounts.
‘A lot of parents missed work because they needed to see lawyers and doctors; some worked casually and had to constantly decline work because of the appointments.’
As well, parents have had to battle their own feelings. According to Dr Kelly, one father grew up in a very homophobic environment and used to make gay jokes. He told her: ‘I’ve really had to change the way I think about this, and the way I talk about things to support my son’.
The drain on the medical and legal systems
The court process has a major effect on hospitals, requiring constant written reports ‘that take clinicians out of the clinic and into their offices’. According to Dr Kelly, the waitlist at the Royal Children’s Hospital is around twelve months – a devastating burden for ‘children at significant risk of self-harm and suicide’.
Courts themselves feel the pressure of enacting the process. Last year, in Victoria alone, 17 cases went through the process and 200 children were referred. All referrals were approved. ‘Two hundred rubber stamps – that’s a ridiculous waste of court resources,’ she says.
How the toolkit helps
After speaking with families and the Royal Children’s Hospital, Dr Kelly realised that resources were desperately needed, so she developed the toolkit as a guide for negotiating the Family Court process.
The toolkit explains the law around hormone treatment. It gives essential information like how to find a lawyer and tells parents what to expect when they go to court.
The toolkit is funded by the Victorian Law Foundation and explains the law around hormone treatment. It gives essential information like how to find a lawyer and what type of lawyer to hire. And it tells parents what to expect when they go to court so they can prepare for the case.
According to Dr Kelly, the court process exists because parents aren’t trusted to make decisions around transgender children. And that’s ‘because the general public and judges don’t fully understand transgender people. I think a lot of it is based in fear, so there’s greater scrutiny. If people were better educated, then I think some of those concerns would fade away.’
Drawing on the outcomes of her extensive research, Dr Kelly continues to encourage the federal government to amend the law so that transgender young people no longer need Family Court approval to commence hormone treatment.
Until that can happen, she continues with her mission to guide families and transgender children as they negotiate a complex and challenging legal process.
Dr Fiona Kelly is Associate Professor and Director of Research in the La Trobe Law School, La Trobe University.
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