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| Case Summary of Re Alex: Treatment for Gender Identity Dysphoria |
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Contact: Family Court of Australia
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The Application in Re Alex
This was an application before the Honourable Alastair Nicholson, Chief Justice of the Family Court of Australia, sitting as a trial judge. It concerned a 13 year old who is referred to as "Alex" in the judgment in order to preserve anonymity. The judgment is also designed to prevent disclosing where in Australia Alex lives, and other identifying characteristics.
Anatomically, and in the eyes of the law, Alex is a girl. However Alex has been diagnosed as having gender identity dysphoria. Alex has a profound and longstanding wish to undergo a transition to become male in appearance. The evidence indicates that this is a clinical condition in which the person feels that his/her physical sex is wrong and does not match self-perception.
Gender identity is different to sexual orientation which refers to a person's attraction for a member of the same sex, the other sex or both.
For quite some time Alex has wanted to be referred to as a male. Professionals involved in the case and members of the family who are close to Alex do so, as does this judgment.
The application asked the Court to authorise medical treatment involving the administration of hormonal therapies that begin what is colloquially described as a sex change process. The initial treatment is for Alex to take a combination of oestrogen and progestogen. This is a form of contraceptive pill which when used continuously will suppress Alex's menses and the feminisation of his body. These effects can be reversed.
A further stage of hormonal treatment involving the administration of testosterone is expected to start when Alex is about 16 years old. Such treatment would begin the process of masculinisation and would have certain irreversible effects such as the deepening of Alex's voice, the promotion of facial and body hair, muscular development and enlargement of the clitoris.
No surgical intervention is sought or indeed contemplated by any of the parties or professional or other witnesses while Alex is under the age of at least 18 years.
Alex is under the legal guardianship of a government Department ("the Applicant") pursuant to the order of a children's court following care proceedings taken a number of years ago. The Department made the present application to the Family Court for authorisation of the proposed treatment because it seemed, and the Chief Justice in his judgment agreed, that the proposed treatment was a type of special medical procedure to which neither Alex as a minor, nor a parent or guardian, could give consent. According to a 1992 High Court decision, Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's case) , authorisation must be sought from the Family Court in these circumstances.
The Chief Justice found (at paragraph 168 of the judgment):"…the evidence does not establish that Alex has the capacity to decide for himself whether to consent to the proposed treatment. It is one thing for a child or young person to have a general understanding of what is proposed and its effect but it is quite another to conclude that he/she has sufficient maturity to fully understand the grave nature and effects of the proposed treatment."
The Hearing
On the first day of the hearing, the Chief Justice ordered that a lawyer be appointed to separately represent Alex's best interests in the proceedings (a "Child Representative"). Also, at the invitation of the Chief Justice, the Human Rights and Equal Opportunity Commission ("the Commission") intervened in the proceedings to make submissions about issues of law and principle.
The respondents to the application were Alex's mother from whom Alex is estranged, and Alex's aunt, with whom he lives. Alex's mother appeared to have moved from her last known address and could not be formally advised of the application. She did not take part in the hearing. Alex's aunt was supportive of the proposed treatment.
The judgment records that the hearing process was different in a number of respects from the traditional form of trial of children's issues in the Family Court and that it appeared to enhance "the depth and richness of the evidence and thereby better serve the aim of an outcome which is in Alex's best interests." (at paragraph 41 of the judgment). The judgment said (at paragraphs 42 and 43):42. The hearing process was conventional in so far as the evidence in chief was mostly in affidavit form. At the request of the parties, I ordered that all documents including affidavits and exhibits in these proceedings be available to the parties and that the parties be at liberty to provide such material to their expert witnesses.
43. The hearing process was, however, different in the following major ways:
The hearing was conducted in an inquisitorial rather than adversarial format. In substance, I indicated the type of evidence that I required and what further evidence was needed, after discussions with the parties' legal representatives and some of the witnesses;
The hearing was conducted in a private conference room setting around a table using portable recording equipment. Official transcription services were used to ensure a formal record;
I did not require the aunt and the school principals to give their evidence in chief by affidavit and took such evidence viva voce;
It was agreed that the hearing would not necessarily follow the traditional course of each party having a single sequential opportunity to cross-examine witnesses one by one but rather that the questioning of witnesses may alternate between the legal representatives, other witnesses and myself as evidence was proffered. Thus, the hearing often took the form of an orderly discussion between witnesses and legal representatives (including, sometimes, instructing solicitors) and myself;
A distinct benefit of the discussion format from my perspective was hearing witnesses engage in a dialogue in respect of each other's evidence. For example, observations made by Alex's primary school principal were commented upon by his secondary school principal and, on another occasion, there was a very illuminating discussion among medical experts concerning the recommended nature and timing of hormonal treatment in which each commented upon the evidence given by others during the course of a telephone link up;
The nature of the proceedings lent themselves to more than one hearing date rather than a single continuous fixture. This enabled parties to provide further expert material and for witnesses to consider the evidence of other witnesses and to respond in a considered way to material points of difference. The time taken in hearings was considerably less than would have been the case if a traditional format had been employed;
I was informed that Alex wished to meet with me in private and without objection, indeed with the encouragement of the parties, I did so;
So far as the discussion with Alex was concerned, he requested that aspects of it remain confidential. I have honoured that request and insofar as I have acted upon any of the contents of that discussion, I have only done so after referring relevant aspects of it to the witnesses; and
Given the intricacies of the evidence, I arranged for the production of transcripts following each hearing session. A copy was provided to the parties through my chambers as soon as it became available."
The Evidence
In summary, the evidence before the Court demonstrated that:- Alex was treated as if he were a boy during his early years and that he spent almost all of his waking and sleeping time with his father before he died when Alex was 5 or 6 years old;
- Alex felt rejected by his mother from an early age and was devastated by his father's death;
- Alex and his mother came to Australia after his mother married a man who sponsored them to come here;
- Alex was subsequently rejected by his mother and step-father and a child protection investigation was commenced;
- Assessments conducted for the children's court proceedings found that Alex was depressed and also recommended attention to Alex's identification as a male.
- The outcome of the children's court proceedings was that Alex went to live with his aunt and her daughter with the Applicant assuming the decision-making responsibilities of a guardian;
- During the following year, the principal of Alex's primary school and Alex's caseworker became worried by his level of distress and talk of suicide due to his body not matching his male gender identity;
- The Applicant then arranged for Alex to be assessed by the experts in psychiatry and endocrinology who proposed the recommended treatment and gave evidence in the proceedings;
- Alex's aunt initially had difficulty coming to terms with the proposed treatment but now accepts him as a boy and introduces him as such. She gave evidence that since the application, he has become happier, with improved behaviour and "seems to have some direction and some plan for the future" (at paragraph 82 of the judgment).
An expert psychiatrist not involved with Alex's medical management was engaged to provide a further report for the Family Court proceedings and agreed with the proposed treatment. In addition, the director of an English clinic specialising in children and adolescents with gender dysphoria reviewed and gave evidence about the Australian doctors' recommendations. He too agreed that Alex should receive hormonal treatment with ongoing supports but suggested a slightly different course and timing of treatment.
While Alex is under the guardianship of the Applicant, the expenses associated with his treatment are met. The Applicant's evidence was that Alex's guardianship would continue to the age of 18 years. Alex's aunt told the Court that she had set aside payments she was receiving from the Applicant that were intended to meet his day to day living costs and that these savings would be available to Alex to use for treatment when he was no longer a minor.
The Chief Justice also heard evidence from the principal of the primary school that Alex had attended last year and from the principal of his current secondary school. Both supported the proposed treatment. The Chief Justice said in his judgment that both schools had taken steps to accommodate Alex's particular needs and that the secondary school had strategies prepared to meet the possibility of any adverse reactions if Alex were to disclose his transition to being male.
Outcome and Findings
In the result, the Chief Justice decided that it was in Alex's best interests that he should authorise both reversible and irreversible hormonal therapies. In coming to that conclusion, his Honour made findings (at paragraphs 202 – 213 of the Judgment) on eight particular matters that a court must consider in special medical procedure applications:"(i) The particular condition of the child or young person which requires the procedure or treatment
202. It is common ground that Alex has a gender identity dysphoria which compels him to want to present as a male. That desire is longstanding and most unlikely to change. It has its most likely origins in Alex's biological and psychosocial developmental features.
(ii) The nature of the procedure or treatment proposed
203. It was submitted, and I accept, that I should view the present application as the question of authorising a single package of reversible and irreversible treatment which Alex can elect to cease at any time.
204. The two stages of hormonal intervention as contemplated by the initiating application or with a period of the analogue alone will be a matter for clinical advice by the treating physicians for so long as Alex wishes to pursue his transition. The hormonal treatment will be accompanied by on-going psychological and psychiatric support to Alex, in the context of the guardianship and educational supports I have described above.
(iii) The reasons for which it is proposed that the procedure or treatment be carried out
205. The evidence speaks with one voice as to the distress that Alex is genuinely suffering in a body which feels alien to him and disgusts him, particularly due to menstruation. It is also consistent as to his unwavering and profound wish to present as the male he feels himself to be. The possibility that Alex is an emerging lesbian has been considered but not accepted by the two expert psychiatric witnesses who have assessed him.
(iv) The alternative courses of treatment that are available in relation to that condition
206. The prognosis for behavioural intervention to change Alex's self-image and behaviour is poor. Hormonal intervention is the agreed expert view and the option of the use of analogue treatment alone at the age of approximately 16 is to be permitted by my order but subject to clinical monitoring and decision-making.
(v) The desirability of and effect of authorising the procedure for treatment proposed rather than available alternatives
207. The proposed treatment is uniformly recommended by the expert witnesses. It is in keeping with Alex's wishes and will facilitate his socialisation into his chosen identity from the outset of his secondary schooling. In the past, Alex has been depressed and self-harming when he has thought that his deep wish to present as male has not been taken seriously. Those who know him well are supportive of the treatment that is proposed and concerned about self-harming conduct if he is unable to embark on the proposed treatment.
(vi) The physical effects on the child or young person and the psychological and social implications for the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment
208. I have canvassed above the physical consequences arising from each stage of treatment and I am satisfied that Alex has the capacity and indeed does in fact know the side effects that may arise and further that he wishes the proposed treatment with knowledge of such risks. The social implications of the proposed treatment are that Alex will face challenges in his chosen identity in respect of peer relationships, possible bullying and ostracism, but I am satisfied that impressive steps have been taken to anticipate such risks.
209. On the other side of the balance, if treatment is not permitted there is consistent concern that Alex will revert to unhappiness, behavioural difficulties at home and self-harming behaviour. Socially, he will be significantly ill at ease with body and self-image during his period of adolescent development until he is competent to make his own treatment decision. Transition into a male public identity will be more difficult than if it occurs at the commencement of secondary school.
(vii) The nature and degree of any risk to the child or young person of authorising the proposed procedure or treatment or not authorising the proposed procedure or treatment
210. I refer to the risks I explained in the previous paragraph and elsewhere in this judgment. Apart from these immediate and direct consequences, I would also be concerned that his education and residential arrangements and his developmental socialisation would be jeopardised to his long term detriment if authorisation of the proposed treatment were refused.
211. One important risk that Alex himself understands is that he will need to continue the hormonal treatment and may as an adult wish to have further interventions, all of which will require payment. The evidence persuades me that appropriate arrangements are in place for any transfer of the medical management of his case, and that Alex will have access to the caregiver payments which his aunt has set aside for him to meet the costs of continued treatment after the Applicant's guardianship comes to an end.
(viii) The views (if any) expressed by the guardian(s) of the child or young person, a person who is entitled to the custody of the child or young person, a person who is responsible for the daily care and control of the child or young person, and the child or young person himself, to the proposed procedure or treatment and to any alternative procedure or treatment.
212. Alex, his aunt, his cousin and the Applicant as guardian all support the proposed treatment and I have referred previously to the evidence that contra-indicates an attempt to change Alex's self-image and behaviour.
213. The views of his mother are not known but in the circumstances, even if she were opposed to the staged hormonal treatment, I would give such views little weight given the strength of the evidence in favour of authorisation and her withdrawal from a parental role in Alex's life."
Australian Birth Certificate Laws
The judgment went on to consider the Australian laws which govern a change to the sex that is recorded on a person's birth certificate. His Honour noted that surgery is not a pre-requisite in Western Australia or South Australia. Surgery is required in New South Wales, Northern Territory, Australian Capital Territory, Tasmania and Queensland. Of this situation, the judgment said (at paragraphs 234 – 241):234. I consider it is a matter of regret that a number of Australian jurisdictions require surgery as a pre-requisite to the alteration of a transsexual person's birth certificate in order for the record to align a person's sex with his/her chosen gender identity. This is of little help to someone who is unable to undertake such surgery. The reasons may differ but for example in the present case, a young person such as Alex, on the evidence, would not be eligible for surgical intervention until at least the age of 18 years. Thus, for the many purposes for which a birth certificate is required (such as an application for a passport), a person such as Alex in those jurisdictions is required to produce a birth certificate that describes him as a female in circumstances where in all other respects he is living his life as a male.
235. The Discussion Paper to which I have referred contains illustrations of the hardships that are experienced when the sex recorded on the birth certificate is incongruent with their chosen gender identity. It rightly appreciates that people in these circumstances:
"… have to endure the embarrassment of explaining their personal history. Naturally, this will be the source of a great deal of distress and embarrassment for the person as well as increasing the risk of being unfairly discriminated against." (at 3)
236. Reflecting upon the particular circumstances of this case leaves me anxious about the detrimental consequences that a young person such as Alex would suffer from having to present a birth certificate that is antithetical to his self-image.
237. A requirement of surgery seems to me to be a cruel and unnecessary restriction upon a person's right to be legally recognised in a sex which reflects the chosen gender identity and would appear to have little justification on grounds of principle.
238. The requirement of prior surgery in order to establish the fact that a person is a man for the purposes of a valid marriage was questioned in the Re Kevin cases (supra): see particularly In Re Kevin (Validity of marriage of transsexual) (No 2) [(2003) FLC ¶93-127 and available at the Court's website] at pars 382-388. The Full Court there also noted (at par 386) the submission of the Commission that the efficacy of surgical intervention is more problematic where the transition is from female to male. Senior Counsel for the Commission in that case said:
"…in the circumstances of this case, it is worth accepting that surgical intervention in relation to the removal of gonads maybe relatively straight forward, surgical intervention for a male to female transsexual person in relation to the construction of a vagina may be common place, surgical intervention which requires the construction of a penis is much more problematic and even where it takes place may or may not give rise to something which would be readily accepted as a penis of a sexual kind which has a particular sexual function."
239. If one accepts such a submission, a requirement of surgery is not only generally inconsistent with human rights. The requirement is more disadvantageous and burdensome for people seeking legal recognition of their transition from female to male than male to female. Expressed in this way, there is an additional objection to surgery as a pre-requisite; the requirement of surgery is a form of indirect discrimination.
240. I would urge the various State and Territory Legislatures that make surgery a pre-requisite for a change in birth certificates to reconsider their position.
241. A scheme for the change of birth certificates which requires a Magistrate or a Board to make a finding of fact but does not make surgery a pre-requisite is, in my view, more consistent with human rights and therefore preferable in comparison with an administrative scheme wherein the applicant must have had surgery to be eligible for the changed birth certificate."
A complete copy of the judgment is available at the Family Court of Australia website: www.familycourt.gov.au/judge/2004/pdf/realex.pdf
April, 2004
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