Gender Dysphoria: How to support families in conflict over complex issues

The complex issue of gender dysphoria has hit the headlines again after judgment was handed down in the Kiera Bell case in early December 2020. In this landmark case, the High Court considered at what age a child might consent to their own medical treatment. The High Court ruling moves decisions about this aspect of a child’s welfare back towards parents during a child’s minority, where differences of opinion can often be divisive and difficult for families to deal with.

The Kiera Bell case

Prior to this ruling, children under the age of 16 could consent to their own medical treatment provided they passed what is known as the “Gillick Competence Test”. In essence this test provides that so long as a child is of sufficient understanding and intelligence to fully comprehend what is proposed, they can consent to their own treatment. 

However, the decision in this case contradicts the Gillick principle which has been in existence for over 25 years. The High Court ordered that:

• Children aged 13 or under are “highly unlikely” to be competent to give consent to the administration of puberty blockers
• At 14 or 15 it is “doubtful” that a child would be likely to fully understand and weigh the long-term risks and consequences.
• Children over 16 are presumed to have the ability to consent to their own medical treatment however, bearing in mind the long term implications of treatment and that fact that treatment is “innovative and experimental,” it may be appropriate for clinicians to seek authorisation of the court before commencing treatment.

As a consequence, some predict that this ruling will lead to a further review of child gender reassignment laws. It is understood that an appeal is being considered.

Where does this leave the parents of children suffering from gender dysphoria?

As any parent of a child transitioning from adolescence to adulthood will appreciate/recognise, the teenage years can be extremely challenging and testing at the best of times. This period becomes all the more difficult when a child is experiencing gender dysphoria. 

For the child in question, and their family, transitioning involves a series of decisions and challenges along the way. Whilst most parents are keen to guide their children and provide them with the emotional support they need during this period, many express concern or confusion as to the best approach. 

Separated parents in particular, may find it especially difficult to reach agreement as to the best way forward. This in turn can lead to additional tension and conflict during an already difficult time. 

Following the ruling in the Kiera Bell case, greater emphasis is likely to be placed on the views of the child’s parents, when assessing whether the child is able to give informed consent.

In the case of Re J (A Minor) (2016) EWHC 2430 (Fam) the Judge removed a nine-year-old boy who was “living life entirely as a girl” from his mother’s care.  This was after the clinical psychologist assigned to the case concluded that the mother had influenced the child into believing he was a girl.

In the wake of the Re J case, Mermaids, an organisation which campaigns for the recognition of gender dysphoria in children, reported an increase in the number of parents being threatened with court proceedings. One can therefore understand why many children experiencing gender dysphoria and their families will increasingly fear the possibility of litigation following the Keira Bell case.

What happens if parents have conflicting perspectives?

Sadly, disputes between separated parents about the arrangements for, and best interests of, their children are not uncommon and whilst most are capable of compromise or resolution, parents increasingly find themselves diametrically opposed in dysphoria cases. This is not surprising bearing in mind the sensitivity of the topic and the complexities involved. It follows that it is not unusual for the child’s parents to respond very differently to the gender anxieties expressed by their child. 

Methods of dispute resolution

If an issue does arise between the parents which proves incapable of informal resolution, there are a number of ways in which matters can be resolved. These include family mediation, seeking to agree matters with support from an exchange of solicitor’s correspondence, arbitration or court proceedings. Each option is not mutually exclusive and it is possible to try more than one method of resolving matters. 

Court Proceedings and the Welfare Principle

In the event that a court application is issued for child arrangements, the child’s welfare will be the court’s paramount consideration. These steps can include an application for prohibited steps (to prevent a certain action being taken) or a specific issue application (an application for the court to determine whether an action can be taken). The court will also have regard to what is known as the “statutory checklist”. This checklist consists of a number of factors which must be taken into account by the judge when considering what is in the best interests of the child. Such factors include the ascertainable wishes and feelings of the child (bearing in mind their age and understanding), and any harm which he or she has suffered, or is at risk of suffering.

In gender dysphoria cases the court is likely to ask Cafcass (the Children and Family Court Advisory and Support Service) to fully investigate the matter and prepare a detailed report. Such reports will provide the court with an independent view as to the issues in the case and make recommendations for the way forward. Ultimately however, the court will have the final decision in what should happen and it will be for the judge to decide the arrangements for the child, if the parents are unable to agree. 

The Court is also likely to direct that a psychologist should meet with the child (and sometimes both parents) in order to ascertain whether the wishes expressed by the child are their true wishes or whether they have been influenced by either parent.

Conclusion

In cases where a dispute arises between parents as to the right approach to take, it is always advisable to obtain legal advice from a family law expert at an early stage.