Rear view mirror #6

It’s been a wet and windy few weeks in Canberra, and while we’ve been able to do some gardening (putting in a few edgings for the hedge, and turning the compost, with one 6-month old bin ready to be used, and the other bin now full), things have been slightly quiet in our world.

But it continues to be an eventful year in the legal world. As the legislative process for equality continues with the House of Representatives beginning debate on the marriage equality bill, the courts continue their iterative march towards social justice in the realm of transgender rights.

Last Thursday, in the landmark case of Re Kelvin [2017] FamCAFC 258, the Full Court of the Family Court unanimously found that, in light of updated scientific knowledge, a child no longer needed the Court’s authorisation to undergo Stage 2 treatment (or gender affirming hormone treatment) for gender dysmorphia as part of their transition process. In doing so, the Court departed from its previous decision in Re Jamie [2013] FamCAFC 110, which required that a child had to have to be found or declared by a court to be a child with competency to make such as decision (known as Gillick competency, in relation to making serious non-therapeutic surgery).

The outcomes of these types of proceedings were summarised in the decision, noting that:

• 62 out of the 63 cases resulted in a positive declaration or finding that the child was competent, 
• each case involved doctors and judges evaluating a child’s capacity to consent
• each case delayed treatment on average for 8 months.

Reading this, I was struck by how invasive that process must have been for all involved, especially for the child involved. All that time and process for a court to ‘declare’ or ‘find’, but really ‘affirm’ and ‘recognise’, what the child already knew. How brave the child must have been to even begin this process, let alone expose themselves to such judicial examination of their inner lives. I hope that that type of determination, in the face of such prolonged invasive-ness, can help to prove to naysayers once and for all that transgender people exist and that gender dysmorphism is real.

While I’m still digesting the reasons, what struck me was the iterative development of the law through the Court’s eyes. It clearly stated that it was not reversing it’s decision in Re Jamie, rather that it was just considering the law in the present context, in light of current medical knowledge, including the updated DSM-V. In this way, the Court was only applying the same laws and principles as it did before, but now against the new known facts available to it. And that is exactly what the judicial process is about.

Medical ‘knowledge’ is how the Court described the facts before it. For me, another way of describing ‘medical knowledge’ is ‘medical understanding’. In so many ways, we do not fully understand the world before us, or within us or others. We may express it as facts or knowledge, but always with the caveat that it is through our perception and understanding at a particular point in time. That is all that we can rely on to make our decisions, judicial or otherwise. The law, favours certainty over uncertainty (that is what society asks of the law), so it’s no surprise that the courts seek to base their findings on facts, objective evidence, and medical ‘knowledge’. For me, in general ordinary terms, and in the real world, these processes are one but many iterative stages in our greater understanding of others and the world as a whole.

In other news, the significant other and I watched Blade Runner 2049 as the last film in this year’s ANUFG season. It was a very good film, if a bit overlong. We were both impressed with the plot mechanics and its pathway to existential questions, though perhaps I could see some plot points a mile away. But the production design, the performances, and that imposing score, all worked together to build a wondrous but discomforting world.

Sometimes, it’s always good to sit down somewhere, let the real physical world around you fade away, and enter your metaphysical space in contemplation of what it is to be human, what it is to be yourself, and what it is to be others. Sometimes you can decide for yourself, sometimes a Court affirms what you already knew, with the support of those around you, and sometimes you never know. But always, I think, we will be contemplating it.