Associate Professor Taylor-Sands/Michelle Taylor-sands1, Dr Georgina Dimopoulos2
1Melbourne Law School, Parkville, Australia, 2Swinburne Law School, Hawthorn, Australia
In Re Imogen [No 6] (2020) 61 Fam LR 344, the Family Court of Australia held that where a parent of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent’s capacity to consent, or the proposed treatment, clinicians must seek court authorisation. The Court also found that, in cases where an adolescent is found to be Gillick competent but there remains a dispute about treatment, the Court must assess whether treatment is in the adolescent’s best interests. Although treatment for gender dysphoria is no longer considered a ‘special medical procedure’ requiring Family Court authorisation, the Re Imogen decision preserves the Court’s welfare jurisdiction, pursuant to section 67ZC of the Family Law Act 1975 (Cth), in cases involving a dispute about diagnosis, Gillick competence or treatment. In this paper, we explore the Family Court’s rationale for preserving its welfare jurisdiction in such cases. We identify a thread of judicial discomfort in Australian gender dysphoria jurisprudence about adolescents consenting to medical treatment that the Family Court perceives to be ‘innovative’. Drawing on recent UK case law, we examine the notion of ‘innovative treatment’ to ascertain whether it has emerged as a separate category to ‘special medical procedures’ that warrants Court oversight. We conclude that the Family Court’s ongoing involvement in gender dysphoria treatment is based on concerns about the perceived ‘innovative’ nature of this treatment, more so than the existence of a dispute, although the Court has not clearly articulated the basis of or rationale for this approach.
Biography:
Michelle is Associate Professor and Director of the Health Law and Ethics Network and the Health and Medical Law Masters at Melbourne Law School. She is also a legal member of the Victorian Mental Health Tribunal and a member of the Advisory Panel to the Victorian Assisted Reproductive Treatment Authority.
Dr Georgina Dimopoulos is an Australian lawyer and academic with research expertise in family law, children’s rights and privacy. She holds a PhD from Melbourne Law School and is currently a lecturer in law at Swinburne University of Technology. She has worked in commercial legal practice, the courts and government.