Re: Colin (Gender Dysphoria)
[2014] FamCA 449
FAMILY COURT OF AUSTRALIA
| RE: COLIN (GENDER DYSPHORIA) | [2014] FamCA 449 |
| 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 his own Phase 2 treatment – Where the applicants seek in the alternative, that the Court authorise the applicant parents to authorise Phase 2 treatment of the child’s behalf – Where the child has identified and behaved as male from nine months of age – Where the child is 15 years 8 months of age – Where the child has undergone Phase 1 treatment – Where the child has been diagnosed with severe depression – 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 on his own behalf – 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 |
| 1st APPLICANT: | The Father |
| 2nd APPLICANT: | The Mother |
| INDEPENDENT CHILDREN’S LAWYER |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 27 June 2014 |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 29 April 2014 |
| DATE ORDERS MADE: | 29 April 2014 |
REPRESENTATION
By Court order the names of counsel and solicitors have been suppressed
Orders (made on 29 April 2014)
That the Court declares that Colin born on … 1998 is competent to consent to the administration of Phase 2 treatment for the condition of transsexualism called Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.
That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.
That, so as to protect Colin:
3.1Colin’s full name, his family members, his medical practitioners, this Court’s file number, the State in which the proceedings were initiated and any other fact or matter that might identify Colin shall not be published in any way;
3.2Only anonymised Reasons for Judgment and Orders (with coversheets excluding the registry, file name and number, and lawyers’ names and details, as well as Colin’s real name, both past and present) shall be released by the Court to non-parties without further contrary order of a judge;
3.3No person shall be permitted to search the court file in this matter without first obtaining the leave of a judge.
That to the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 (Cth) or the other provisions of that subsection do not otherwise authorise same, the applicants shall have leave to publish to Colin’s treating medical practitioners a version of these Reasons which does not encompass the restrictions set out in the preceding order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Colin (Gender Dysphoria) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 2014 of 2011
| The Parents of Colin |
Applicants
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Colin is 15 years 8 months of age. He was born biologically a female and commenced life as Elyse. He has the condition of transsexualism, called gender dysphoria. I shall use the male pronoun when referring to Colin.
From as early as nine months of age, Colin has identified and behaved as male rather than female. He has a strong desire to be male.
Colin’s parents sought orders, which would permit Colin to access medical treatment which would enable him to develop secondary male sexual characteristics.
The treatment of gender dysphoria is conducted in two stages. Phase 1[1] (Stage 1) involves hormone treatment to suppress puberty and is reversible. Phase 2 (Stage 2) involves hormone treatment to stimulate physical changes which bring about the characteristics of the affirmed sexual identity. Phase 2 is not readily reversible.
[1] Generally the cases on gender dysphoria refer to “stages” of treatment. But the medical profession refer to treatment for this condition as “Phase 1” and “Phase 2”. I shall adopt the medical terminology. Apparently the medical profession refer to “stage” to describe stages of pubertal progression.
When Colin was approximately 13 years of age this Court authorised Phase 1 treatment for him. This treatment was subsequently administered to Colin. Colin now wishes to proceed with Phase 2 treatment. This is the subject of the parents’ application.
Prior to commencement of his Phase 1 treatment, Colin’s condition was being managed by his general medical practitioner, his psychiatrist, his counsellor, his paediatrician and his paediatric endocrinologist. These professionals continue to assist Colin. I shall refer to them again below.
I heard the parents’ application on 29 April 2014. Both the parents and Colin were most anxious to be informed of the outcome of these proceedings as soon as possible. I therefore made orders on that day and indicated I would provide reasons for judgment at a later date. These are the reasons for judgment.
Application
The parents filed their original application on 6 May 2011. On 11 May 2011, this Court authorised Phase 1 treatment for Colin.
The orders sought in the parents’ Further Amended Initiating Application filed on 14 April 2014 were as follows:
1.Declaration that [Colin] born … 1998 is competent to consent to the administration of Phase 2 Treatment for the condition of transsexualism; called “Gender Dysphoria in Adolescents and Adults” in the Diagnostic and Statistical Manual of Mental Disorders (2013).
2.In the alternative to Order 1 above:
2.1Declaration authorising the administration to [Colin] born … 1998 at about 16 years of age of Phase 2 Treatment being the hormonal medical treatment administered to induce the development of the physical changes associated with puberty in accord with an adolescent’s affirmed sex in respect of the condition of transsexualism; also called “Gender Dysphoria in Adolescents and Adults” in the Diagnostic and Statistical Manual of Mental Disorders (2013);
2.2Declaration that either or both of [Colin’s parents] as the parents of the said [Colin] be and are hereby authorised to provide all authorities and consents as are necessary for the purposes of the administration of the said Phase 2 Treatment to [Colin].
3.Grant liberty to apply on forty eight (48) hours notice in relation to the above orders or any matter ancillary thereto.
4.Such other order as this Court shall think fit.
It was submitted on behalf of the parents that the present internationally accepted treatment protocol for Phase 2 treatment, often called “The Dutch Protocol”, and the conforming Australian medical practice is that Phase 2 Treatment be commenced at or about the recipient’s 16th birthday. This would balance the maximum time for the medical confirmation of the stability of the adolescent’s sexual identity during Phase 1 treatment with the need to enhance the adolescent’s mental health by enabling the adolescent to experience the development of the secondary sexual characteristics associated with the adolescent’s affirmed sex at about the same time as the adolescent’s peers.
The applicant parents submit that the current medical evidence is consistent in supporting the proposition that Colin has sufficient maturity, mental capacity and that he has acquired sufficient information and understanding concerning Phase 2 Treatment to be considered competent to the Gillick standard to authorise that medical treatment on his own behalf.
Background
The background facts are as follows.
In 1988 the applicant parents married.
In 1994, their first child N was born.
In 1998 Colin was born.
In approximately July 1999 when he was approximately nine months of age, Colin commenced child care. During his time in childcare Colin seemed to identify, and enjoy playing, more with the boys than the girls.
When Colin was five years of age he first vocalised his desire to be a boy when he stated “Dad I want to be a boy and I want to dress like [his close friend] …”. Colin also expressed this same desire to his mother. At this time Colin wanted to wear jeans and shorts rather than skirts and dresses.
By approximately 2005, Colin refused to wear any girls’ clothing and insisted that he shop for clothing in the boys’ section of the store. Just prior to Colin’s eighth birthday, his parents persuaded Colin to wear a dress to his Auntie’s wedding. He was most reluctant to do this but ultimately obliged his parents’ request. This was the last time Colin ever wore girls’ clothing, with the exception of his school uniform which was a dress. Wearing girls’ clothing caused him considerable distress.
From approximately 2006 Colin increasingly insisted on being treated as a boy. He started playing football and wearing only boys clothing. Colin wanted to use the boy’s toilets and also insisted on having his hair cut in a spiky boys cut.
By the age of eight years Colin was becoming extremely upset about the fact that he had a girl’s physique.
At approximately this time Colin requested that his parents stop correcting people who called him a boy and asked that they refer to him as a male. He was delighted by the fact that because he dressed like a boy and had a boy’s hairstyle, many people thought he was a boy.
In 2007, when Colin was nine he became increasingly distressed at having to wear a tunic to school. He was also regularly bullied at school. But he did not tell his parents about the bullying.
In 2007, Colin changed schools to one that was less tolerant of bullying and which allowed the girls to wear shorts and trousers as part of their uniform. The school also allowed Colin to join the boys’ school dance group.
In 2008, when Colin was approximately 10 years of age, his aunt jokingly referred to him having a “sex change” one day. Colin was very interested to know what this meant, and was immediately fixated on the idea. After his mother explained what the term meant, Colin could not understand why he could not have a sex change straight away. He would tell family members that he was going to have a sex change in future.
Between 2009 and 2010 Colin started to exhibit signs of depression and withdrawal. This started to become manifested in trouble at school and with friends. As his school cohort began entering puberty, Colin found himself being forced to play with the girls more as the boys started to exclude him. He was devastated and started to refuse to attend school. He blamed his parents for having made him have a girl’s body and he became more withdrawn and uncooperative.
In approximately 2010 an incident with a boy at school resulted in Colin’s parents telling the boy’s parents about Colin’s male identity. The parents told their son who told the children at school that Colin wanted a “sex change”. From this point on Colin refused to attend school, throwing tantrums and becoming hysterical before school. Colin eventually withdrew from school for the last term of 2010.
After the above incident, Colin’s depression worsened and he became withdrawn and isolated. He was having no contact with his friends and, to his parents’ horror, started talking about suicide. His mother reduced her working hours to enable her to spend more time with him because of his parents’ concern that he was at risk of self-harm.
In late 2010 Colin was diagnosed with severe depression. He was referred to a paediatrician, Professor C, the head of Adolescent Mental Health at X Hospital. Professor C diagnosed Colin with gender dysphoria. He referred him to Dr L, a child psychiatrist and Dr M, joint head of endocrinology at X Hospital.
In December 2010 Colin commenced menstruation. This was a traumatic experience for him. When Colin began to develop breasts, he wore a small crop top and bound his breasts in order to reduce the appearance of his breast size.
In February 2011, when Colin commenced high school, he was still referred to by the name of “Elyse”. Other students were confused because his name did not match his appearance. Colin had to explain to them that he was “a boy with a girl’s body”. Colin refused to use the school toilets and waited to relieve himself until after he had left school for the day. He also refused to use the change rooms, and refused to attend school on any day that he had to use a change room. Colin subsequently had a school attendance rate of 20 percent.
In March 2011, the parents ceased calling Colin “Elyse” and commenced calling him Colin. The parents changed his name from Elyse to Colin on the school records. He started to live as a male. His class mates were supportive.
In April 2011 Dr L was satisfied that Colin met the accepted criteria for diagnosis of what was then described as gender identity disorder. This condition is now described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as gender dysphoria. Dr L also regarded Colin to be at serious risk of depression, school refusal and suicidal ideation if appropriate medical intervention was not commenced.
In April 2011, Dr M recommended that Colin commence immediate hormone treatment to suppress female physical puberty.
In May 2011 Colin’s parents filed their Initiating Application seeking orders to permit the commencement of Phase 1 treatment for Colin’s condition. Shortly thereafter the parents discussed the proceedings with Colin. Colin stated “If I don’t get it, (referring to the court order) then I will end it” and walked out of the room.
On 11 May 2011 orders were made by this Court authorising the administration of hormonal medication to Colin to stop or suspend the process of physical puberty (Phase 1) and authorising the applicant parents to provide all required authorities and consents for this treatment.
On 29 July 2011 the Australian Human Rights Commission (“AHRC”) was granted leave to intervene in the proceedings.
On 1 September 2011 the Director-General of the relevant state government Department was granted leave to intervene in the proceedings. The Director-General subsequently withdrew.
On 24 April 2014 leave was given to the AHRC to withdraw as a party in the proceedings.
The Applicable Law
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. As was submitted on behalf of the Australian Human Rights Commission at an earlier stage in these proceedings, 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;
·If the Court is not satisfied that the child is Gillick competent, then Court authorisation for Phase 2 treatment is required.
What is meant by Gillick competence was set out in the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. 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 parent’s consent.
Colin’s Condition
As indicated above, Colin has been diagnosed as having the condition of gender dysphoria by both Professor C, his paediatrician, and Dr L, his child psychiatrist.
In Dr L’s report dated 3 April 2014 in support of Colin undertaking Phase 2 treatment he said as follows:
In my opinion [Colin] experiences the condition of “Gender Dysphoria” (DSM V) or Transsexualism (ICD 10). In my view he also meets the definition of “transgender” in the [relevant State legislation].
[Colin] was born as a female but from age 4 he presented and behaved as a male with clear desire to be a boy. This extreme tomboyism was continuous throughout the rest of his childhood.
With the support and advocacy of his family [Colin] has dressed and identified as a male at home and in public full-time since age 12. In keeping with the World Professional Association for Transgender Health (WPATH) Standards of Care for young people living with transsexualism he has had his best interests served by being referred to by his name and pronoun appropriate to his affirmed sex.
…
[Colin] fulfils the criteria for Transsexualism/Gender Dysphoria which has persistently been present for more than 11 years and the disorder is not a symptom of another psychiatric or genetic or chromosomal abnormality.
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).
Effects of Phase 2 Treatment
Unlike Phase 1 treatment, which is wholly reversible, as Professor M has indicated, Phase 2 treatment is not.
Dr R, at page 2 of her report dated 7 April 2014, set out the procedure and its effects as follows:
The Phase 2 Treatment for [Colin] involves the administration of Testosterone to initiate the secondary sexual characteristics and appearance of the male sex. These include facial hair, deepened voice, increased muscle mass/strength, body fat redistribution, cessation of menses (effective from Phase 1 treatment), clitoral enlargement and vaginal atrophy as well as skin oiliness/acne and scalp hair loss (Coleman, Bockting, Botzer, Cohen-Kettenis et al., 2012)
Is Colin Gillick competent?
Each of Colin’s psychiatrist, paediatric endocrinologist and counsellor have expressed the opinion that he is Gillick competent.
As indicated above, Colin first saw his psychiatrist, Dr L, in 2010. Colin has been attending Dr L at quarterly intervals each year. He last saw Dr L in March 2014.
Dr L said in his report dated 3 April 2014 as follows:
[Colin] is going to turn 16 later this year and in my view is Gillick competent to consent to the commencement of opposite sex hormones. He has competence to make this decision in that he has sufficient understanding and intelligence to fully understand what is being proposed by way of opposite sex hormonal treatment for the Gender Dysphoria. He is fully aware of the possible irreversible effects of the cross sex hormones and wants to commence them as soon as he turns 16.
Dr R, an experienced counsellor to transsexual and transgendered persons, has been Colin’s counsellor for some years. Dr R said in her report dated 7 April 2014 as follows in relation to Colin’s capacity to make an informed decision about Phase 2 treatment:
As an expert in the area I can make a meaningful commentary but I am not a psychiatrist. I deem that [Colin] is capable of making an informed decision about the treatment of testosterone. He also stated to me that “any risks would be totally worth it”.
Professor M, paediatric endocrinologist, has been Colin’s therapist since January 2011 prior to Colin’s Phase 1 treatment. Professor M was satisfied that Colin “had a sufficient and age-appropriate understanding of puberty suppression and longer term issues related to gender dysphoria to commence him on Phase 1 treatment”.
Professor M also said in relation to Colin’s competence and suitability to undertake Phase 2 therapy as follows:
[Colin] has tolerated the puberty suppression well and this has been successful in achieving the aims of reduction of female hormonal effects and cessation of menstruation. This has been closely monitored and there have been no adverse effects. I have seen [Colin] for review 6 times in this period, most recently on 22 February 2014. [Colin] has continued to have follow up visits with his psychiatrist and counsellor who will be providing separate reports. I understand that he has had continuing problems with anxiety, depression and school avoidance and remains on anti-depressant medication.
[Colin] now seeks to commence phase 2 therapy for gender dysphoria, being the administration of testosterone (male type or androgen hormones) to achieve male type secondary sexual characteristics. This will include the development of male sexual hair distribution, male body habitis and muscular development, enlargement of the clitoris and enlargement of the larynx and deepening of the voice. It will also cause suppression of ovarian function and potential loss of female fertility. Many of these changes are irreversible or partly irreversible.
In the regular meetings I have had with [Colin] and his parents, including the most recent on 22nd February, 2014, [Colin] has continued to firmly express the view that he wishes to continue living in a male role and pursue phase 2 therapy with androgen therapy. I am of the opinion that the gender dysphoria remains firmly entrenched and that [Colin] has sufficient knowledge and understanding of the effects of phase 2 therapy to proceed with that. He understands that many aspects of androgen therapy are irreversible or only partially reversible. I have given him the opportunity to raise any questions or express any doubts about his intended course and he has said that he has none. He also understands that he could stop pubertal suppression at any time and not proceed with androgen therapy and return to a female gender role; he has firmly expressed that he does not wish to do that.
… [F]rom an endocrinology perspective I feel that [Colin] is sufficiently informed and capable of making this decision and I see no reason for phase 2 therapy not to proceed. Given all of the above information, I believe that proceeding with phase 2 therapy is in [Colin’s] best interests.
Each of Colin’s above treating professionals has a similar opinion. This is that Colin has a sufficient understanding and intelligence to enable him to understand fully what is proposed. I accept their expert opinion about this matter. It is also consistent with the evidence by each of Colin’s parents. They are highly supportive of his wish to undertake the therapy.
The Independent Child Lawyer submitted that Colin is Gillick competent and that it would be consistent with his best interests for the therapy to be administered to him.
Accordingly, in my view, the principles enunciated in Gillick and Jamie which guide this Court in determining whether Colin is competent to consent to the proposed Phase 2 treatment for his condition of gender dysphoria have been satisfied.
To add to the confidence which the Court has about Colin’s intelligence and understanding about his proposed treatment, I note that Dr L, his psychiatrist said in his 3 April 2014 report as follows:
There are no psychiatric contra indications for not commencing opposite sex hormones.
As a specialist in assessing and consulting to children and their families living with the condition of transsexualism, I would be seriously concerned that [Colin] will may deteriorate if the opposite sex hormones are delayed. He is seriously at risk of developing depression, suicidal ideation and deliberate self harm . He already struggles to get to school and has missed a significant amount of school.
I strongly recommend [Colin] commence opposite sex hormones to allow [Colin] to continue to mature and blossom in a profoundly caring, compassionate and sensitive home environment provided by his family. Also to enable him to bravely pursue the vocational/goals and hopefully attend school.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 27 June 2014.
Associate:
Date: 27 June 2014
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