De L v Director-General, NSW Department of Community Services

The case of *De L v Director-General, NSW Department of Community Services* concerned an appeal to the High Court of Australia regarding the Director-General's decision to refuse to grant a licence to the appellant, Ms De L, to adopt a child. Ms De L, who was born male and identified as female, had sought to adopt a child. The Director-General had refused the licence on the grounds that Ms De L's gender identity was not consistent with the best interests of a child, citing concerns about potential social stigma and psychological harm to the child.

The High Court was required to determine whether the Director-General's decision was unlawful by reason of being based on an irrelevant consideration or for failing to take into account relevant considerations, and whether the decision was unreasonable. Specifically, the Court had to consider whether Ms De L's gender identity was a relevant factor in assessing her suitability as an adoptive parent and, if so, how it should be weighed against other factors. The Court also had to consider the scope of the Director-General's discretion under the relevant legislation and the principles of administrative law governing the exercise of such discretion.

The High Court held that the Director-General had erred in law by treating Ms De L's gender identity as a determinative factor against her suitability as an adoptive parent. The Court reasoned that the paramount consideration in adoption matters is the best interests of the child. While the Director-General was entitled to consider all relevant factors, including potential challenges a child might face, these factors must be assessed in a balanced and objective manner. The Court found that the Director-General had failed to give sufficient weight to Ms De L's personal circumstances, her capacity to provide a loving and stable home, and the fact that her gender identity did not inherently preclude her from being a suitable parent. The Court emphasised that discrimination based on gender identity is unlawful and that decisions concerning child welfare must be free from such prejudice.

The High Court allowed the appeal, quashed the decision of the Director-General, and remitted the matter to the Director-General for reconsideration according to law.