Re: Celeste

[2016] FamCA 503

FAMILY COURT OF AUSTRALIA

RE: CELESTE [2016] FamCA 503

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with Gender Dysphoria – Where the applicants seek a declaration that the child is competent to authorise her own Phase 2 treatment – Where the child is 15 years of age – Consideration of whether the child is Gillick competent – Where the child’s treating medical experts and parents support the child commencing Phase 2 treatment – Where each of the child’s treating practitioners have expressed the opinion that the child is competent to the Gillick standard to authorise medical treatment – Declaration made as to the child’s Gillick competence.

Family Law Act 1975 (Cth) – s 121(9)(g)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Re Jamie (2013) FLC 93-547

APPLICANTS: The Mother and the Father

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 29 March 2016

JUDGMENT OF: Johnston J

HEARING DATE: 29 March 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders

1. That the Court declares that CELESTE born on … 2000 is competent to consent to the administration of Stage 2 treatment for the condition of Gender Dysphoria in Adolescents and Adults as identified in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

2. That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.

3. That the full name of CELESTE, her family members, the Independent Children’s Lawyer, her medical practitioners, her school, this Court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of Celeste’s parents’ lawyers, and any other fact or matter that may identify CELESTE shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number and lawyers’ names and details, as well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 of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, to enable their execution, and one cover sheet of Reasons for Judgment that includes the file number and lawyers’ names.

4. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

5. That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

The Mother and the Father

Applicants

And

Independent Child Lawyer

REASONS FOR JUDGMENT

1. Celeste was born biologically male but for almost the entirety of her life has identified as female.  Celeste has the condition of transexualism called gender dysphoria.  Celeste is 15 years of age having been born in 2000.

2. Out of respect for Celeste and her parents I shall refer to her by the female pronoun.

3. For convenience I shall refer to Celeste’s parents as “the mother” and “the father”.  As the applicants in these proceedings they are seeking, in effect, a declaration that Celeste is competent to consent to the administration of Phase 2 treatment for her gender dysphoria condition.  They also seek certain orders to protect Celeste’s identity and to enable her treating medical practitioners to have access to these Reasons for Judgment.

4. The application is supported by the Independent Children’s Lawyer (“ICL”).

Background

1. The father was born in 1967 and the mother was born in 1968.  They married in 2000.  They also have two other children born subsequently to Celeste and they parent three older children from previous relationships.

2. From the time Celeste could talk she referred to herself as “Celeste”.  She never referred to her male name.  From a young age she displayed feminine behaviours and interests.  She expressed no interest in boys’ games, clothes or sporting activities.  She asked her parents for girls’ clothes, books, movies and decorative items.  She loved princess movies, fairies and Barbie dolls, brats, princess and monster high girls.  As young as when she was being pushed in her stroller at the shops she would say “Mum, look at those pretty things.”

3. She would play with other girls and felt she did not fit in with boys.

4. From the age of three or four she would say she was a girl not a boy to her family and close friends.

5. At age four Celeste was diagnosed with Asperger’s disorder.  She was also diagnosed as having Attention Deficit Hyperactivity Disorder and Expressive Language Disorder.

6. Before Celeste was five years of age various health professionals from E Health Services advised the parents to encourage Celeste to live more as a boy so that she would “fit in” and not be bullied.  But this was not successful and Celeste was the subject of bullying.

7. In 2006 Celeste started school.  She objected to having to wear a boy’s school uniform to school and became distressed.

8. There were difficulties at home with Celeste sharing a bedroom with her two brothers.  There were regular arguments about girly colours, girly toys, girly furniture and girly television programs.  Even the bedtime story became a battle of genders.

9. So in 2011 the parents provided Celeste with her own bedroom which is decorated with butterflies, princesses, hearts and fairies, and in the colours of pinks, purples and aqua.  The manchester is feminine in style.

10. From approximately 10 years of age Celeste became distressed and embarrassed about her male genitals.  She started to “tuck away” her genitals when in the presence of her siblings or when in view of herself in a mirror.  She had become more aware that her penis defined her as a male. 

11. During 2011 and early 2012 Celeste started to socially transition to a female.  She asked her friends to refer to her as a girl and started to wear female clothing when going out to the shops or socialising.  Celeste became distressed about the prospect of commencing puberty as a male and the associated changes to her body such as facial and body hair, and the deepening of her voice.

12. In March 2012 Celeste commenced attending a new school.  She continued to wear the male uniform to school but had socially transitioned to wearing female clothing outside of school.  Her parents noticed that when she wore male clothes Celeste would become withdrawn and quiet.

13. In May 2012 Celeste commenced attending upon Consultant Clinical Psychologist, Dr S.

14. In July 2012 Celeste asked her family members to use the female pronoun when referring to her.  She spoke to her parents about the idea of attending school as a female.

15. In September 2012 Celeste said to the mother “Please stop puberty from happening to me.  I only ever want to be a girl.”  At this time the parents approached Celeste’s school and requested that she be allowed to attend in the female uniform.  The school resisted initially. 

16. The mother also explained to Celeste that there was a medical procedure available called “blockers” to help prevent her body becoming more male in puberty which would give her more time to consider her condition.  The mother also explained that medication could also assist her body eventually to become more female.  Celeste asked her mother to arrange for her to have the blockers.  The mother also explained that the blockers would also stop her having the ability to have children and if she stopped the blockers she would be capable of having children as a male.  Celeste replied that she understood that she could stop treatment at any time.

17. In October 2012 Celeste commenced attending upon a counsellor, Ms R and has continued to attend appointments with her every six to eight weeks.

18. In November 2012 the principal of Celeste’s school agreed to put in place new policies in order to allow Celeste to attend school wearing the female uniform.  The school officials were very understanding of Celeste’s condition and became very supportive towards her.  From this time Celeste has only worn female clothing.  From this time she attended all social and sporting events in her affirmed female gender.

19. Also in November 2012 Celeste commenced attending upon Dr G, a Paediatric Endocrinologist.  Dr G then prepared a report in support of Celeste commencing Phase 1 therapy.  Dr G has continued to see Celeste every six months.

20. In mid-2012 Celeste approached her parents requesting that they formally change her name with the Registry of Births, Deaths and Marriages and in December 2012 the parents received a new birth certificate for Celeste.

21. On 20 February 2013 this Court made orders allowing Celeste to commence Phase 1 therapy to suppress puberty.  The therapy commenced in March 2013 under the care of Dr G, consisting of an injection of Zoladex every 12 weeks.

22. On 5 June 2014 the parents filed an Amended Initiating Application seeking an assessment of Gillick competency on the part of Celeste to commence the administration of Phase 2 treatment.

23. Since commencing her Phase 1 therapy Celeste has seen her counsellor Ms R several times.  Ms R has described her as being happy and doing well.  She has been seeing Dr G twice a year to monitor her progress.  I shall refer to a report by Dr G below.

24. Celeste has also seen Dr K, child and adolescent psychiatrist and a specialist in gender dysphoria.  I shall also refer to Dr K’s report below.

The Applicable Law

1. In Re: Jamie (2013) FLC 93-547 the Full Court dealt comprehensively with the circumstances in which Court authorisation is necessary for Phase 1 and Phase 2 treatment. The following points of guidance arise from the judgment:

   ·The Court has jurisdiction to hear and determine an application for authorisation of Phase 1 treatment if there is a dispute about the proposed course of treatment, for example between the views of the child, his or her parents or guardians and his or her treating medical practitioners. 

   ·In the absence of such a dispute, court authorisation is not required for Phase 1 treatment.

   ·In relation to Phase 2 treatment, if the Court is satisfied that the child is Gillick competent, then in the absence of any controversy the child can consent to the treatment and no Court authorisation is required.

   ·The question of whether a child is Gillick competent is a matter to be determined by the Court; and

   ·If the Court is not satisfied that the child is Gillick competent then Court authorisation for Phase 2 treatment is required. 

2. What is meant by Gillick competence was set out in the House of Lords decision in Gillick & West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”). The relevant passage is that of Lord Scarman at 88-90 which is as follows:

   … I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 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.  Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parents’ consent.

Celeste’s Condition

1. As indicated above, Celeste has been diagnosed as having the condition of gender dysphoria, initially by Dr L and Ms R and more recently by Dr K.

2. The diagnostic criteria for the condition of gender dysphoria set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) are as follows:

   Gender Dysphoria in Adolescents and Adults

   A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by at least two of the following:

   1.A marked incongruence between one’s experienced/ expressed gender and primary and/or secondary sex characteristics (or, in young adolescents, the anticipated secondary sex characteristics).

   2.A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or, in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).

   3.A strong desire for the primary and/or secondary sex characteristics of the other gender.

   4.A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

   5.A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

   6.A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).

   B.The condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

   Specify if:

   With a disorder of sex development (e.g., a congenital adrenogenital disorder such as 255.2 [E25.0] congenital adrenal hyperplasia or 259.50 [E34.50] androgen insensitivity syndrome).

   Coding note:  Code the disorder of sex development as well as gender dysphoria.

   Specify if:

   Posttransition:  The individual has transitioned to full-time living in the desired gender (with or without legalization of gender change) and has undergone (or is preparing to have) at least one cross-sex medical procedure or treatment regimen – namely, regular cross-sex hormone treatment or gender reassignment surgery confirming the desired gender (e.g., penectomy, vaginoplasty in a natal male; mastectomy or phalloplasty in a natal female).

Expert Evidence

1. Professor G, paediatric endocrinologist, first met Celeste in November 2012 when Celeste was almost 12 years of age.  Professor G prepared a report for this Court in support of the application for this Court’s approval for Celeste to commence Phase 1 therapy for gender dysphoria.

2. Professor G said that the Phase 1 therapy has suppressed puberty well and that there have been no adverse effects.  He has continued to see Celeste each approximate 6 months.  He said that Celeste has been very pleased with the treatment from both a physical and a psychological perspective.  He said Celeste continues to be fully transitioned to a female role in school and more broadly in society.

3. Professor G described the Phase 2 therapy as involving the administration of oestrogen from age 16 to achieve female type secondary sexual characteristics.  He said that these would include breast development and female body habitus as well as suppression of aspects of male body development.  He said it would cause suppression of testicular function and potential reduction or loss of male fertility some of the changes being irreversible or partly irreversible.

4. Professor G said that in the regular meetings he has had with Celeste and her family, she has consistently and firmly expressed the view that she wishes to continue living in a female role and pursue Phase 2 therapy with oestrogen therapy.  In his opinion the gender dysphoria remains firmly entrenched and Celeste has sufficient knowledge and understanding of the effects of Phase 2 therapy to proceed with it.  She understands that some aspects of oestrogen therapy could be irreversible or only partially reversible.  He has given her the opportunity to raise any questions or express any doubts about her intended course and she has said that she has none.  He said that she also understands that she could stop pubertal suppression at any time and not proceed with oestrogen therapy, and return to a male gender role.  Professor G said that she has strongly indicated that she does not wish to do that.  He said that Celeste’s family continue to be strongly supportive of her wishes in this regard.  He said that in the near future he would refer Celeste to an adult endocrinologist to consult further about possible future female hormone therapy if and when it is approved.

5. He said that expert mental health professionals would be the appropriate professionals to advise the court about the degree of certainty of the diagnosis of gender dysphoria, whether the state of gender dysphoria persists and the adaptation to the real life experience of living in the female role in recent years.  They are also the appropriate professionals to advise whether Celeste is currently psychologically and intellectually capable of making an informed decision about proceeding with Phase 2 therapy.  He said that, however, from an endocrinology perspective Celeste is sufficiently informed and capable of making this decision and he could see no reason for Phase 2 therapy not to proceed from age 16 years.  Professor G said that on the basis of all of the above information, he believes that proceeding with Phase 2 therapy is in Celeste’s best interests.

6. As I have said above, Dr K, psychiatrist, has prepared a report in support of the application.  Dr K is a Senior Staff Specialist Child and Adult Psychiatrist in the X Child and Youth Mental Health Service.  He also works as a youth psychiatrist at Headspace and as a consultant psychiatrist.

7. Dr K had assessment interviews with Celeste and her parents on 16 and 30 September 2015.  He interviewed Celeste in relation to the issue of Gillick competence on 20 January 2016.  He also interviewed the parents on 30 September 2015 and 20 January 2016 for the purpose of ascertaining their support for Celeste and their understanding of the proposed treatment.

8. Dr K has expressed the opinion that Celeste fulfils the DSM-5 criteria for gender dysphoria in adolescents and adults.  In his Report he provided a detailed assessment of her condition and characteristics in respect of each of the relevant criteria for diagnosis which it is unnecessary to set out in detail in these Reasons.  But it is important to note that in relation to Criterion B, namely that “The Condition is associated with clinically significant distress and with impairment in social and academic functioning” Dr K said as follows:

   This DSM-5 criterion is problematic for individuals who are in adolescence but whose gender dysphoria has been continuous since early childhood and who have been living in their affirmed gender for quite some time.  It is my clinical opinion that, were [Celeste] to be forced to adopt a male social identity and told to consider herself as a male person at this stage, she would become so distressed and confused that she would be completely unable to function socially or academically.

9. In his report Dr K went on to describe the nature and purpose of the proposed medical procedure.

10. In terms of Celeste’s welfare, Dr K said that the Phase 2 treatment would maintain Celeste’s self-esteem, retain her congruence of self as a young woman and facilitate her normative psychological, social and sexual development.

11. He described the likely short and long-term physical, social and psychological effects of the procedure on the child (including any risks) as being:

    1.if the procedure is carried out, Celeste will gradually develop female secondary sexual characteristics and her masculinisation will continue to be suppressed.  This will normalise her sense of self and ensure that she is as well socially integrated as possible, given her other difficulties.  There will be irreversible changes such as breast development and testicular atrophy leading to permanent infertility.

    2.If the procedure is not carried out, there is a high risk of permanent loss of bone density if sex hormone suppression therapy is continued and she will become socially very abnormal being kept in a prepubertal state.  If Phase 1 treatment is ceased and Phase 2 treatment is not carried out, Celeste is at very high risk of extreme levels of anxiety, depression and highly probable self-harm, as I doubt that she would have the resources to cope with either physical virilisation and/or the denial of her female identity.

1. Dr K noted that the parents are in agreement to the Phase 2 therapy and that they understand the nature and effects of it.  He also noted that treating medical professionals including himself, Professor G, Dr B, Dr M (family doctor), Dr S (clinical psychologist) and Dr R (counselling psychologist) are in agreement to the procedure.

2. Dr K also said that there is every indication through Celeste’s demonstrated capacity to engage with him and her long history of adherence to professional medical and psychological support, advice and treatment with a number of practitioners that the child has trust and confidence in the doctor-patient relationship.

3. Dr K also referred to what he described as other mental health conditions.  He said Asperger’s Disorder (now referred to as mild Autism Spectrum Disorder) was diagnosed in Celeste at four years of age.  This disorder is characterised by deficits in social communication, stereotypical and ritualised behaviours, egocentricity and rigidity and concreteness of thinking.  He said that due to her maturation and development, the condition in Celeste would now be best described as residual and mild in its social impact.

4. He also referred to Attention Deficit/Hyperactivity Disorder, inattentive presentation.  There is evidence by history that this condition has affected Celeste since early childhood and continues to impact upon her academic ability.  At evaluation by paediatrician Dr B in 2012, it was decided to not trial medication but to see if the condition would improve with time.  He said that he understood that the situation is now being revisited due to the ongoing impact of the ADHD on Celeste’s capacity to attend and concentrate at school and on her homework.

5. In relation to Celeste’s Expressive Language Disorder, referred to in earlier medical reports and in Celeste’s developmental history Dr K said that Celeste was mildly delayed in development of speech and he understood that her language-related problems were a reason for repeating Year 6, so that she might be able to cope better with high school.  He said that at a social level, she now presents as a cheerful and amiable young person who understands most of what is said to her at an age-normal level and is quite capable of pleasant if superficial conversation.

6. Significantly, Dr K has carefully set out his reasons in support of his conclusion that “[Celeste] is free to the greatest extent possible from temporary factors that could impair her judgment in providing her consent to the procedure.  These are as follows:

   Part C – Competence to Consent to the Gillick Standard

   18.The child is able to comprehend and retain both existing and new information regarding the proposed treatment.

   I informed [Celeste] that oestrogen is usually given as tablets but can be a patch on the skin.  I also informed her that she will be given an anti-male hormone tablet, either cyproterone acetate or spironolactone.  She will probably stay on Zoladex for a little [while] longer while this is occurring.

   She is aware that she will need to be able to take two or three tablets every day instead of having an injection every day.  The doctors may be able to give these medications in a patch or depot form if [she] cannot swallow tablets.

   The child is able to provide a full explanation, in terms appropriate to her level of maturity and education, of the nature of Phase 2 treatment.

   [Celeste] said that she “no idea” (informed as above, and she understood and retained the information)

   The child is able to describe the advantages of Phase 2 treatment

   [Celeste] said the treatment “will increase the feminism genes”.  She expects to have higher body fat, different body shape, her skeleton shape will be more female in type, she will grow breasts, skin will be soft and less oily, won’t grow facial hair or body hair (like a male).

   [Celeste] wants others to see her and treat her as a young woman, and the treatment will help her do this.

   The child is able to describe the advantages of Phase 2 treatment

   [Celeste] finds it difficult to swallow tablets.  She said that she might gain weight and be more prone to breast cancer.  I added that she may get blood clots – (thrombosis).  She realises that she will have to be on medication and seeing doctors for many years.  [Celeste] said that she has never really thought about the prospect of biological infertility, being “fine” about the idea of looking after fostered, adopted or step children should the situation arise.

   The child is able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with Phase 2 treatment.

   [Celeste] could compare the advantages and disadvantages and decided that the advantages were better and that she wishes to go ahead with Phase 2 treatment.

   The child is able 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.

   Dr [K] said that [Celeste] was able to acknowledge this.

Conclusion

1. On the basis of the above evidence and particularly the expert opinion of Dr K, I am satisfied that Celeste has reached the sufficient understanding and intelligence to understand fully what is proposed by the treatment, as described in Gillick so as to lawfully consent thereto.

2. Accordingly, in my view, the application has been made out and orders will be made as proposed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 29 March 2016.

Associate:     

Date:              22 June 2016