THE Chief Justice of the Family Court
of Australia, Alastair Nicholson, today
authorised a special medical treatment,
involving the administration of hormonal
therapies that will begin a "sex change process"
for a 13 year-old known as "Alex".
Alex is a girl both anatomically and in the
eyes of the law, but has the gender identity of
a boy. The hormonal treatment will be
accompanied by social, psychological and
psychiatric supports.
The landmark Judgment follows an application
by a Welfare Department that is Alex's guardian.
The Judgment agreed that the proposed treatment
for Alex was of a type that the High Court said
must be brought for authorisation by the Family
Court in its broad welfare jurisdiction because
neither Alex nor his guardian could consent to
it. The Judgment praised the family members and
professionals involved in the case.
The application was supported by Alex's
treating doctors, family members, the schools
that Alex has attended, and by psychiatric
specialists working in the field of gender
identity dysphoria. Evidence heard by the Chief
Justice confirmed that Alex had consistently
viewed himself as a boy from a very young age
and that he has been presenting himself as male
and going to distressing lengths to conceal that
he has a female body. The Court also heard that
Alex had suffered from depression and had
attempted to harm himself when he treated as a
girl or if his desire to make the transition to
male was ignored or rejected.
The Court authorised the staged
administration of the hormonal treatment
recommended by the experts until Alex is 18
years old. The implementation of the treatment
will be in the hands of Alex's treating doctors
and Alex himself.
Neither Alex nor the Department asked the
Court to authorise any surgical intervention and
no such authorisation was given. The expert
evidence before the Court was that surgery would
not be considered for Alex until he was at least
18.
The Court gave permission for Alex to
initially receive 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.
The Court also gave permission for the
treating clinicians to administer a different
hormonal combination involving testosterone at a
later time closer to his 16th birthday. Such
treatment would begin the process of
masculinisation and 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.
The Court's orders allowed Alex to enrol in
school under a male first name. It also gave
approval for an application to make the same
change to the name recorded on his birth
certificate.
Although the Court was not asked to make
orders concerning a change to the record of
Alex's sex on the birth certificate, the Chief
Justice's judgment observed that most parts of
Australia require people seeking such a change
to have undergone surgery. The Judgment urged
those States and Territories to "reconsider
their position" and described the requirement of
surgery as "inconsistent with human rights". The
Judgment said:
"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 their chosen identity and would
appear to have little justification on grounds
of principle."
With the agreement of all parties, the case
was heard using many of the features of the less
adversarial approach to children's cases that is
being piloted in Sydney and Parramatta
registries of the Family Court. The Chief
Justice indicated the type of evidence he
required and what further evidence was needed.
The proceedings were conducted in a private
conference room rather than a courtroom. Instead
of just hearing experts and other witnesses give
their evidence and answer questions one by one,
there were opportunities for discussions about
the evidence between witnesses, lawyers and the
Chief Justice. The Judgment said:
"I think it is fair to say that the court
record indicates that the legal representatives
and witnesses shared my view that the procedural
modifications to the hearing process enhanced
the depth and richness of the evidence, and
thereby better served the aim of an outcome
which will be in Alex's best interests. I
consider that a format such as this is usually
to be preferred, at least in relation to special
medical procedure cases."
NOTES TO THE MEDIA
To protect the identity of Alex publication
of the State or Territory in which he lives, and
the names of legal representatives, expert
witnesses and other witnesses, is banned.
