ABSTRACT
This chapter applies the concept of children’s right to decisional privacy to analyse the judgment of the Full Court of the Family Court of Australia in the case of Re Kelvin [2017] FamCAFC 258. The Full Court in Re Kelvin held that where a child diagnosed with gender dysphoria consents to stage two treatment, the child’s treating medical practitioners agree that the child is competent to consent to that treatment (Gillick competent) and the child’s parents do not object, then the Family Court need not determine the issue of Gillick competence. The analysis exposes three features of the Re Kelvin judgment that arguably do not demonstrate an appreciation of or respect for the decisional privacy rights of transgender and gender diverse (TGD) children. These are: the Full Court’s invisible rights approach; the central narrative and style of the judgment; and the need for court authorisation in circumstances of ‘genuine dispute or controversy’ about whether medical treatment should be administered. This chapter argues that TGD children benefit only incidentally from the Full Court’s decision, which was about the extent to which the Family Court should encroach on parents’ responsibility for their children’s medical treatment, consistently with developments in medical science.
