Re: Anita

[2016] FamCA 1137

FAMILY COURT OF AUSTRALIA

RE: ANITA [2016] FamCA 1137

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a child with gender dysphoria – Where the applicants seek a declaration that the child is competent to authorise Stage 2 treatment – Where the child’s medical practitioners support the child commencing Stage 2 treatment and agree that the child is competent to make such a decision – Whether the child is Gillick competent – Where the Court finds the child is competent to make her own decision as to Stage 2 treatment.

Family Law Act 1975 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)

1^ST APPLICANT: The Mother

2^ND APPLICANT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 19 December 2016

JUDGMENT OF: McClelland J

HEARING DATE: 19 December 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. The Court finds that the child ANITA (born male name K on … 2000) (“Anita”) is competent at law to consent to the administration of Stage 2 treatment for the condition of Gender Dysphoria and the Court authorises Anita to make her own decisions in relation to that treatment.

2. The full name of Anita, her family members, her hospital, her medical practitioners, her school, the Court’s file number, the State of Australia in which the proceedings were initiated, the name of Anita’s parents’ lawyers, and any other fact or matter that may identify Anita shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order.

3. No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

4. Otherwise all existing applications are dismissed and the case is to be removed from the list of cases awaiting finalisation.

Notations

A.Each party shall receive one full copy of these Orders with the relevant details included to enable their execution and one cover-sheet of the Reasons for Judgment that includes the file numbers and lawyers’ names.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Anita has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother

1^st Applicant

And

The Father

2^nd Applicant

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. The Mother and the Father are the parents of Anita, who was born in 2000 and is aged 16. Anita, who was formerly known as K, has been diagnosed with gender dysphoria. Whilst Anita was born genetically a male, she identifies as a female.

2. On 21 January 2016 Anita commenced Stage 1 treatment which involves the administration of puberty hormone blocking therapy that have the effect of stopping the sexual characteristics of the young person from developing. These puberty blockers are reversible should a patient stop treatment.

3. Anita, Anita’s parents and treating specialists have given detailed consideration to the appropriate course of action for Anita and propose that she now commence Stage 2 treatment which would involve the daily administration of a female sex hormone. Where the treatment is administered it is typically administered around 15 or 16 years of age; it being noted that Anita recently turned 16.

4. The treatment would seek to promote the development of female secondary sexual characteristics whilst suppressing any further masculinisation of Anita’s body. The medication will cause permanent changes to Anita’s body. Anita and her parents are aware that it is therefore a big decision.

5. The parents’ application asks the Court to make a finding that Anita is “Gillick competent” to consent to Stage 2 treatment. The parents’ application is supported by an expert report prepared by Dr R, a consultant psychiatrist who specialises in gender dysphoria, who interviewed Anita and her parents.

6. Professor A has also provided a report dated 14 December 2016. Professor A is a paediatric endocrinologist employed as a Senior Staff Specialist at the Z Hospital where he is also head of the endocrinology research centre. He also has an appointment as a clinical professor at the X University. 

The Law

1. In terms of the law, the phrase “Gillick competent” is derived from the English decision of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 in which Lord Scarman said at 188-189:

   I would hold that as a matter of law the parental right to determine whether or not their minor child ... will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.  It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. 

2. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court of Australia confirmed the principle as being applicable in this jurisdiction and said at 237-238:

   A minor is, according to [the Gillick principle] capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable to him or her to understand fully what is proposed”.

   This approach, although lacking the certainty of a fixed aged rule, accords with experience and psychology.  It should be followed in this country as part of the common law.

3. More recently, in Re: Jamie (2013) FLC 93-547 at 87,326, Bryant CJ summarised the role of the Court in the treatment of a child with gender dysphoria as follows:

   a) Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

   b) If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

   c) In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

   d) If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

   e) The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

   f) If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

4. Whilst the Full Court (Bryant CJ, Finn and Strickland JJ) were in agreement as to the outcome of the appeal and generally the reasons for it, Finn and Strickland JJ both emphasised (at 87,332 and 87,333 respectively) the importance of the Court authorising Stage 2 treatment in circumstances where the irreversible nature of the treatment could have grave consequences for a child, should an incorrect decision be made as to their competency to consent.

5. In this matter it is significant that Anita wishes to progress to Stage 2 treatment. She has formed that view on the basis of expert advice and it is supported by her parents, her siblings and her grandparents.

Evidence

Anita’s parents

1. In terms of the relevant evidence from Anita’s parents, it is noted that they each affirmed affidavits in support of their application on 12 October 2016.  In content, their affidavits largely duplicated one another. 

2. By way of summary, Anita’s parents deposed that: 

   a)As a child, Anita preferred “stereotypically girl’s toys and activities” such as dressing up in princess or bridal clothing and watching Disney princess movies. She also tended to prefer the company of girls as friends.

   b)In May 2015 Anita disclosed to her parents that she was transgender. Anita told her parents she had felt this way for “a long time” and was “102 percent” sure. 

   c)By the beginning of 2016 Anita began to wear a wig and make up and dress in feminine clothing.

   d)On 14 January 2016 Anita attended her first appointment with paediatric endocrinologist, Professor A, at W Private Hospital, and I have referred to Professor A’s report. 

   e)On 21 January 2016 Anita commenced Stage 1 treatment. Whilst Anita experiences hot flushes associated with her current Stage 1 treatment, she “no longer experiences episodes of depression and is much happier than before”.

   f)Whilst Anita’s disclosure appeared to surprise both parents, the immediate family, as I have noted, which includes her two older siblings and her grandparents, have been supportive of her transition.

   g)On 23 February 2016 Anita was assessed by a team at the Gender Clinic which is located at Z Children’s Hospital. The assessment, led by child psychiatrist Dr L, took place over three appointments and involved Anita and her parents being interviewed and completing various questionnaires.

   h)In May 2016 Anita’s parents met with a psychologist, Ms J, who commenced seeing Anita on 8 October 2016.

   i)In July 2016, during a two-day family trip to the Blue Mountains, Anita dressed and identified as Anita both in the home and out in public.

   j)On 30 July 2016 Anita attended her first appointment with Dr R who she continues to see on a monthly basis.

   k)At school Anita is currently in Year 10 and is enrolled at an all-boys high school where she continues to be referred to as K. The school are not aware of Anita’s treatment.

   l)In 2017 Anita is enrolled to attend a co-educational school as a girl. Anita’s new school have been made aware of her treatment and have already expressed their full support.

   m)The parents intend to make an application to formally change Anita’s name from K to Anita, and the Court understands that has taken place.

   n)Anita is otherwise a creative teenager whose favourite subjects at school are art and photographic and digital media. Anita has expressed an interest in working in the film or art industries.

3. Since commencing her transition, the mother has spoken to Anita about the proposed Stage 2 treatment. Whilst Anita initially told the mother it would make her “happy”, she now appreciates that it “won’t be perfect” and knows there will be associated side effects. Anita has told the mother that she knows that she will not be able to have biological children but desires to have a family and would consider other options such as adoption.

4. The mother says that whilst Anita is aware of the cruelty she may face from people, she “doesn’t care that she will need future medical interventions to look and sound more feminine” and “does not seem too afraid”.

5. Whilst the mother says that Anita is optimistic about her future, she expressed the view that Anita is “afraid of not passing”. In Dr R’s evidence this is clarified as being a term referring to Anita’s ability to be seen by others as a female. The father also noted that Anita is “anxious about the length of the legal process, as she would like to look [as] feminine as possible when she starts school next year”.

Dr R and Professor A

1. In respect to the report from Dr R, Dr R affirmed an affidavit in support of the parents’ application on 29 November 2016, annexing his report dated 10 November 2016.  Dr R’s report notes that Anita’s endocrinologist and psychologist are also in agreement to Anita’s Stage 2 treatment. 

2. Dr R is a consultant psychiatrist who has further qualifications in child and adolescent psychiatric and a subspecialty interest in gender dysphoria.  Dr R is employed as a senior staff specialist, child and adolescent psychiatrist at the Y Local Health District Child and Youth Mental Health Service.  He also works as a psychiatrist at Headspace, and at a suburban health service. 

3. Dr R interviewed Anita on three occasions in July, August, and September 2016, and her parents on two separate occasions in August and September 2016. 

4. Dr R confirmed that Anita has identified as a girl from the age of five, but did not disclose this to anyone out of fear of being bullied. In 2013, Anita realised people could change genders after seeing a Youtube video and only told a few close friends about her situation thereafter.  Her disclosure to her parents in May 2015 occurred in circumstances where the father confronted Anita about her then-irritable mood.  It appears that the father has only recently been able to accept Anita suffers from gender dysphoria, but having been made aware, he was fully supportive of the proposals. 

5. On page 3 of his report, Dr R reported at:

   7.3 [Anita] has been stressed, depressed and sleep deprived over the two to three years. She has felt increasingly uncomfortable with the male characteristics of her body and its pubertal development. She regards herself as a female person and desperately wants to develop physically as a female. She is exclusively sexually attracted to males.

   7.4 Her parents have had her assessed by two endocrinologists and several mental health professionals (two private child psychiatrists, two private psychologists and the gender dysphoria team at [Z] Hospital) prior to seeing me. [Anita] was commenced on Gonadotropin Releasing Hormone agonist therapy (Zolodex) under Professor [A] at [Z] Hospital … on 21 January, 2016. This has led to some reduction of distress, as physical masculinsation has been suspended, but [Anita’s] dysphoria remains unabated.

   8. …

   [Anita] has no history of significant medical illnesses, injuries, intolerances or allergies.

   She denied any history of trauma, abuse or neglect.

   There is a history consistent with a diagnoses of Major Depression and stress-related insomnia affecting her for much of the period between early 2015 and August, 2016. This appears to be improving with correction of the insomnia, validation of [Anita’s] gender dysphoria, acceptance of [Anita’s] gender identity by her father and facilitation of social transitioning.

6. Professor A notes on page 3 of his report that it is appropriate for the Court to rely on the evidence from Anita’s expert mental health professionals.  The only reservation that Professor A expresses is that “[Anita] has not yet had the full real life experience of living in a female role, however she is actively pursuing that”. 

7. Providing Anita with the opportunity of having a longer experience living as a female role, however, needs to be balanced in the context of Anita being at an age where effective administration of the treatment is time-critical.  In that context, Professor A notes that administration of the treatment is likely to prevent further larynx development and voices deepening, and other features of late male puberty such as facial and body hair growth and musculature development.  The solicitor for the applicants has advised the Court that the practicality is that Anita has, through Year 10, been attending an all-boys school, and it simply has not been possible for her to live life on a daily basis as a female.  However, that has been occurring since 2 December 2016.

8. In that context, it is also significant that Anita will commence Year 11 of her study next year, and proposes to do that at a new school, which will be a co-ed school.  As I have indicated, the school has been informed of the proposed course of action and is fully supportive of Anita.  Understandably, Anita and her parents wanted the Stage 2 treatment to take place prior to Anita commencing at her new school.

The proposed treatment and its effects

1. In terms of the proposed treatment and its effect, as mentioned, Anita’s proposed Stage 2 treatment would involve daily administration of a female sex hormone.  Dr R states that the treatment could be “administered as a topical oestradiol patch twice-weekly or as a subcutaneous slow release implant” and that Anita would also require “anti-androgen medication… which is administered once daily as daily oral tablets”. The proposed treatment would be overseen by Anita’s endocrinologist Professor A and closely monitored, and it is noted that Professor A has recommended that Anita also consult an adult endocrinologist. The parents have indicated through their solicitor that it is proposed that that will take place. 

2. Biologically, the treatment would seek to promote the development of the female secondary sexual characteristics while suppressing any further masculinisation of Anita’s body.  This includes the minimisation of facial and body hair growth and arrest Anita’s voice deepening.  In the long term, Anita will develop breast tissue, and her body fat would be redistributed.  Anita would also experience a reduction in “spontaneous erections, lowered aggressive and libidinous drives, and will cease to produce sperm”. 

3. In turn, these biological changes would facilitate Anita’s social and physiological transition as a female, which would substantially alleviate the gender dysphoria she suffers from.  That is, Anita would be able to achieve a greater congruence between her sense of self and how she is perceived and treated by others.  Anita would also be less likely to suffer “stress-induced insomnia, anxiety, depression, risk-taking behaviours and mistreatment”.

4. In that respect, the solicitor for the applicants has referred to international studies including Dutch studies that have suggested that engaging in such treatment in appropriate circumstances can certainly be conducive to better mental health outcomes.

5. Dr R, however, outlines that Stage 2 treatment can carry the risk of a higher propensity to anxiety and depression due to changes in sex hormone levels.  Physically, Anita could become more prone to venous thrombosis and may gain weight.  More broadly, there is an increased risk of hypertriglyceridemia, cardiovascular disease, hypertension, hyperprolactinaemia, Type 2 diabetes and, in the long term, breast cancer. Dr R also makes clear that Anita will ultimately be rendered infertile by the treatment.

6. However, if Stage 2 treatment is not carried out, Dr R opines that Anita would experience increased difficulty in transitioning socially as a female, and would have to continue puberty hormone blocking therapy until the age of 18, when she can legally provide consent.  This delay, Dr R believes, could be a “source of significant frustration” for Anita and “an implicit invalidation of her enduring and strongly held female identity”.  More practically, a continuance of the puberty hormone blocking therapy would be extremely expensive and uncomfortable for Anita, and carries its own risks and side effects.  These include pain, dizziness, nausea, hot flushes, and, in the long term, it may result in osteopoenic bones.

Anita’s Gillick competence

1. In terms of Anita’s Gillick competence, under the heading “Part C Competence to Consent to the Gillick Standard”, Dr R reports the following:

   18. Ability to comprehend and retain both existing and new information regarding the proposed treatment

   [Anita] demonstrated this capacity throughout the interview, particularly in the discussion of medical aspects of the treatment (e.g. the need for anti-androgen medication as well as oestrogen).

   19. Ability to provide a full explanation, in terms appropriate to her level and maturity and education, of the nature of Phase 2 treatment

   [Anita] said, “I will be given oestrogen in either injection or tablet form.” (I added that she would also require testosterone-blocking or reducing tablets). “I would need to take the medication every day until I am at an age where I would go into menopause. I will need occasional blood tests to check the hormone levels.”

   20. Ability to describe the advantages of Phase 2 treatment

   [Anita] said, “It will make me look more feminine. I will get breast development – I know it won’t be as much as if I was born a female. My body fat will be redistributed – I will get larger thighs and hips, my face will become more rounded. This takes up to 2 years. My body and facial hair will not develop any further, I won’t go bald and my head hair will be softer.” (I added that her skin will remain as soft and smooth as it has been on the Phase 1 GnRHa treatment.)

   “It will make me more comfortable – it will be like I’m more correct, like I am what I’m meant to be, more honest, my true self.”

   [Anita] added. “If other people see me as a female, that would make me happy.”

   21. Ability to describe the disadvantages of Phase 2 treatment

   [Anita] responded, “I will get mood swings – might get anxiety and depression. The oestrogen increases my risk of gallstones, blood clots, Type 2 diabetes, and cardiovascular risks.”

   In terms of possible social difficulties, [Anita] said, “Some people might not accept me, there will be people who are rude about it but I think I will be able to deal with that because I will be happy within myself.”

   When asked about the need for ongoing medical treatment and monitoring, [Anita] said, “I will have to remain in contact with doctors for scripts and checks on my health, but that is not a big problem.”

   22. Ability to weigh the advantages and disadvantages in the balance, and arrived at an informed decision about whether and when she should proceed with Phase 2 treatment

   [Anita] said, “I feel like the advantages outweigh the disadvantages definitely. It’s like everything in life – nothing comes without its cost.”

   23. Ability to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that she had before the commencement of treatment

   [Anita] was able to acknowledge this fact comfortably, but at the time of the interview there were no longer any major issues.

   It is my opinion that [K] (known as [Anita]) … was and still is free to the greatest extent possible from temporary factors that could impair judgement in providing consent to the procedure.

Findings

1. Accordingly, the findings I make are as follows:

   (1)I accept the unchallenged evidence outlined above of Anita’s parents and, particularly, Dr R as an expert in this field.

   (2)I am satisfied that Anita is competent to fully understand the nature and consequences of Stage 2 treatment, including any risks associated with such treatment.

   (3)I am satisfied that Anita is competent to make her own decision in relation to Stage 2 treatment, and is competent to consent to that treatment occurring.

2. It is therefore appropriate for the Court to make a finding that Anita is competent at law to consent to Stage 2 treatment for gender dysphoria, and for Anita to be authorised to make her own decision in relation to that treatment, and on that basis I have made the orders referred to earlier.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 19 December 2016.

Associate: 

Date:  20 January 2017