Sydney,
Australia — 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".
<http://www.austlii.edu.au/au/cases/cth/family_ct/2004/297.html>
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
<http://www.familycourt.gov.au/>
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."
Media Queries
Susan Gavaghan
Media Manager
Family Court of Australia
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.
