A case proceeding through the court system involving custody of a transgender child is causing controversy and once again shining the spotlight on the difficult nature of transgender parenting matters. Although the parents claim their child’s removal from the home was due to the system trying to “bully” them into consenting to hormone treatment, the magistrate framed the protective order decision as being necessary to prevent the child from being mentally abused by the parents, who do not accept that their child is transgender. Let’s take a look at this important case.
Case background – custody of transgender child
The now 16 year old teenager, born female, was removed from the family home by police a year before the current court decision was handed down, after it was discovered the child was discussing suicide online. When the case ultimately went to a state Children’s Court, a magistrate made a protection order, saying the child was at risk of self-harm in the home:
“The magistrate had found on the balance of probabilities that the teenager suffered verbal abuse ‘directly related to his feelings and expression of gender identity'”.
However the parents, who deny any abuse, say they have only been “judged as abusive and potentially harmful for failing to consent to their child’s self-declared transgender identity and wish for irreversible cross-sex hormone treatment”.
According to the parents, it’s really not about abuse but about consent—and that their lack of consent is in fact what is being regarded as “abuse”:
“(The authorities say) we will not allow her to change gender, so it’s dangerous for her to come back to our house because we will mentally abuse her — they want us to consent to testosterone treatment,” the father told The Weekend Australian.
They are appealing the magistrate’s decision, which the newspaper says is “setting up the first potential test case on gender medicine in a mainstream superior court in Australia”.
The parents intend to argue the magistrate erred in “insisting the protection proceedings had nothing to do with the causes of gender dysphoria or
[consent to]treatment options” and ruling it was a case of parents unacceptably abusing their child over the child’s expressed gender identification.
Meanwhile the child protection authorities who have the child in their care “have yet to back hormone treatment and have agreed to the parents’ request for a second opinion before any decision”.
The case is being described as the first of its kind in Australia where parental resistance to a child transitioning has led to child removal from a home. Previously, it has been more common to see custody of transgender child cases in the courts where custody disputes relate to situations where parents disagree over how to handle their gender non-conforming child.
However, the core issue seems to be whether the magistrate removed the child because the parents did not support and consent to the child transitioning, or whether the lack of support went further, manifesting in actual abuse of the child due to the child’s desire to transition.
Family court involvement
Meanwhile, the teenager and their lawyers have now filed an application in the family courts for approval to begin hormone therapy, in the “first such case in which both parents oppose treatment”.
The teenager, being under 18, is unable to proceed with hormone treatment without the consent of their parents unless a court authorises it to occur.
A landmark decision in the family court several years ago confirmed that “the existing law is that a medical practitioner seeing a young person under the age of 18 cannot initiate stage one, two or three treatment options without establishing parental consent and court authorisation is required if there is a dispute”.
Outcomes in matters involving trans kids or those with gender dysphoria are particularly sensitive given the increased risk of anxiety, depression and suicide that gender non-conforming children already have and which can worsen if they are prevented from living as the gender they feel they are.
In the current case, the parents say they knew their child was depressed and in need of help, but that they “wanted an independent psychologist to consider all possible underlying causes, not just gender issues, and to look into non-invasive treatment options”.
How to best deal with situations involving transgender children is yet another area that needs to be addressed in the current reform phase of the Australian family law system in the quest to modernise the system.
Source: The Australian
For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
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