Sydney,
Australia — CRITICISM of the Family Court's
decision to permit 13-year-old "Alex" to begin hormone
treatment is unfounded <http://www.austlii.edu.au/au/cases/cth/family_ct/2004/297.html>
Alex is desperate for the
treatment. But the main worry of many commentators is
that Alex's mind, not body, needs changing and that the
court didn't get the right expert information.
However, they overlook
important features of the case, as revealed by the
judgment.
There were two types of
experts. Some have been personally involved giving
medical and psychiatric treatment or counselling to
Alex.
Also, two internationally
renowned specialist psychiatrists were asked to look at
the diagnosis and treatment specifically for the
hearing.
There is no doubt that
the court <http://www.familycourt.gov.au/>
and experts were aware of Alex's very troubled and
traumatic family background.
The obvious question was
whether Alex's long-standing and profound hatred of
having a girl's body was just a product of that history -
one that could be counselled away.
The experts decided it
wasn't and couldn't. They agreed Alex was indeed one of
the rare cases of a person trapped in the wrong
body.
Expert agreement is not
proof of collusion.
It shows that Alex's
symptoms were classic when measured by the accepted
criteria for assessing young people with this
problem.
THE experts were also
very conscious that there was a small chance that young
people like Alex might change their mind, hence the
staged method of treatment and specialised
counselling.
The initial use of a
common contraceptive pill will not have irreversible
effects whereas the next stage of treatment, starting at
about age 16, will make Alex irreversibly more male in
appearance.
It is essential to
remember Alex was in danger of committing suicide if the
treatment was denied.
The evidence outlined in
the judgment does not reveal someone given to petulant
teenage tantrums or threats.
Alex had been clinically
depressed and self-harming.
The consistent opinion
was that the reality gulf between mind and body felt by
Alex for a long time was a cause.
Again, the experts
considered whether Alex's distress was a product of
family history and decided it was not.
They did not say that
Alex's childhood experiences had nothing to do with the
profound, perhaps biological, need to be in a "male"
body.
Scientists call this
"brain sex", the way the brain is hard wired with a core
sense of maleness or femaleness.
But the fact of a
disturbing childhood and the part it played in Alex's
depression does not mean that the expert assessments were
wrong.
Many commentators also
misunderstand the way in which the case was
heard.
They seem to think it was
too informal and did not properly test the experts'
claims.
First, it has to be
remembered that an independent lawyer was appointed to
represent Alex's best interests in response to the
application.
The lawyer did not act on
instructions in the way that lawyers do for adults and
had to make up his or her own mind about the evidence and
what needed challenging.
SECOND, the use of a less
adversarial approach does not mean the experts were
unchallenged.
The judgment explains
that more testing than usual took place because as well
as questions from the parties' lawyers, experts were
asked to comment on each other's opinions.
Also, the judge seems to
have been more involved in questioning the evidence than
in a standard trial where the parties control what
material is placed before the court.
He even directed that the
court receive more evidence than was originally brought
by the parties.
Finally, it is correct
that the judge met the child. The law allows this and
rightly so.
Why shouldn't a judge
making a very serious and unusual decision speak to the
young person who is described in all the reports?
Wouldn't anyone charged with such a heavy
responsibility?
Family Court judges are
legally obliged to hear cases such as Alex's precisely
because there is a grave risk that a wrong and
irreversible decision might be made.
As with a good parent
faced with hard choices, only time will tell if this
judge was right.
If Alex had been refused
treatment and committed suicide, there would still be
questions and criticisms, just very different
ones.
And death is absolutely
irreversible.
TRAVIS LlNDENMAYER
is a former judge of the Family Court of
Australia
