As the Victorian election enters its final stretch, a schools policy relating to gender transition has become a hotbed of confusion and misinformation.
In particular it has led to claims on social media that the state government facilitates and even “coerces” children into medical gender transition treatments which strip parents of their rights.
This is false. The Victorian government has confirmed that medical treatment is not part of the policy and legal experts say parental consent would be needed for medical interventions. If a case arose where consent was not required, it would be in spite of the policy.
The claim’s origins are in a campaign by activist group Binary Australia which included the distribution of flyers to 500,000 homes across Victoria. Titled “Gender transition without parental consent”, the flyer seeks to raise awareness of the Victorian eduction department’s s LGBTIQ student support policy.
Binary does not make the claim that the policy relates to medical transition, only that it allows “gender transition without parental consent”.
Gender transition is an umbrella term and includes everything from changing pronouns and wearing different clothes to hormone treatments and surgery.
Off the back of the campaign, some on Facebook (here) suggest the policy enables medical transition without consent.
“The government in Victoria has taken it upon themselves to make determinations when they think that parents’ consent is not required for people under the age of 18. So what happens when a minor is determined a mature minor? Well, essentially the parents’ rights have gone out the window and the minor in question here can be administered with all types of drugs including … hormone altering drugs and synthetic hormones that of course are used in the gender transition process,” (video mark 3min).
His video has been shared, including by Freedom Party of Victoria candidate Leonie Blackwell.
The Victorian government confirmed to AAP FactCheck that its policy has nothing to do with medical interventions.
“Our schools support trans and gender-diverse students to embrace their identity by supporting to express their gender with their uniform and pronouns, and training staff to create supportive spaces for all students,” a representative said in an email.
“Schools support mature minors under the age of 18 to make decisions on their own behalf when it comes to their own identity. This does not include medical transition, which can only be accessed through a medical professional.”
To be considered a mature minor, Victoria’s education department says “principals or others working with students must be satisfied that the student has sufficient maturity, understanding and intelligence to understand the nature and effect of their particular decision”.
Dr Calina Ouliaris, a lawyer and psychiatry registrar with the Northern Sydney Local Health District, has outlined that parental consent would be required for any medical treatment.
“Currently, all three stages of treatment for gender dysphoria in children and adolescents require consent from all parties with parental responsibility. This applies even when a young person is Gillick competent and consents to their own treatment,” Dr Ouliaris said in an article for the Medical Journal of Australia.
“If there is any dispute between treating medical practitioners or parents regarding a young person’s Gillick competence and/or diagnosis or treatment, a court application is required.
“Once an application is made, the court will make a finding about the young person’s Gillick competence in all cases. Where the dispute is only regarding an adolescent’s Gillick competence, the court will make an order or declaration under general powers conferred by s 34(1) of the Family Law Act 1975 (Cth) (the Act).”
Dr Aileen Kennedy, an expert in law relating to intersex and transgender children, said the post’s claim that the policy allowed for medical transition without parental consent is “simplistic” and “misleading”.
Dr Kennedy said it might be “theoretically possible for a medical team to undertake gender affirming treatment on a minor without parental consent, because proceeding without parental authority is lawful if the minor is deemed competent under the Gillick test”.
She said there remained a “lack of clarity,” adding: “Such treatment would only require court authorisation if there were actual opposition from a parent or medical practitioner.
“However, proceeding without knowledge of consensus between the parents/guardians would run the risk of parental opposition, which might make their medical intervention unlawful. I doubt whether any medical teams would be prepared to proceed without knowing the attitude of parents or without seeking court authority.”
If treatment was carried out without consent, this would be in spite of the Victorian government’s policy and instead guided by existing case law.
Binary’s campaign has gained traction online and has been quoted and commented on by a number of political figures including UAP senator Ralph Babet, LNP senator Gerard Rennick and Freedom Party of Victoria candidate Greg Cheesman.
While none of the above make the direct claim around medical transition, Jeremy Wiggins, CEO of Transcend Australia, told RMIT FactLab that language on the subject – such as the use of the term ‘gender transition’ – could mislead.
The claim that the Victorian Labor government’s policy strips parents of their rights and coerces children into medical gender transition treatments is false. The government said its policy does not relate to medical transition and legal experts said parental consent is generally required for such treatment.
In any case where consent is not required it would be in spite of the Victorian government’s policy, not because of it.
False – The claim is inaccurate.