Re: Desi

[2017] FamCA 203

FAMILY COURT OF AUSTRALIA

RE: DESI [2017] FamCA 203

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with gender dysphoria – Where the applicant parents seek an order that the child is competent to consent to the administration of Stage 2 treatment for the condition of gender dysphoria – Where the child is 17 years of age – Consideration of whether the child is Gillick competent – Where the child’s treating medical practitioners and parents support the child commencing Stage 2 treatment – Where each of the child’s treating medical practitioners have expressed the opinion that the child is Gillick competent and can consent to the proposed treatment – Where the Court is of the view that the child is Gillick competent and can consent to the proposed treatment – Order made that the child is competent to consent to the proposed treatment.

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

Family Law Act 1975 (Cth) s 67ZC

FIRST APPLICANT: The Mother

SECOND APPLICANT: The Father

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 13 March 2017

JUDGMENT OF: Johnston J

HEARING DATE: 13 March 2017

REPRESENTATION

By Court Order the name of Solicitor has been suppressed

Orders

1. That orders be made in accordance with paragraphs 1, 2 and 3 of the final orders sought by the Initiating Application filed on 19 January 2017 as set out hereunder:

   1.That the Court declares that the child DESI (born … on … 1999) is competent to consent to the administration of Stage 2 treatment for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

   2.That the full name of Desi, his family members, his hospital, his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Desi’s parents’ lawyers, and any other fact or matter that may identify Desi shall not be published in any way, and only anonymised reasons for judgment and orders (with cover sheets excluding the registry, file number, and lawyers’ names and details, as well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 orders 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 numbers and lawyers’ names.

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

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: Desi 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

Applicant

And

The Father

Applicant

REASONS FOR JUDGMENT

1. The question in these proceedings is whether a child, who is known as Desi, born in 1999, has reached a sufficient understanding and intelligence to enable the child to give a consent valid in law to a medical procedure which the child would like to undertake. 

2. Desi has the condition known as gender dysphoria.  Desi was born female but identifies as male.  I shall refer to the child as Desi and use the male pronoun.  Desi is 17 years six months of age.  He has a strong desire to have medical treatment for his gender dysphoria condition.   

3. The applicants are Desi’s parents, the Mother and the Father.  They seek an order to the effect that the Court declares that the child is competent to consent to the administration of Stage 2 treatment for the condition of gender dysphoria in adolescents and adults in the Diagnostic and Statistical Manual of Mental Disorders DSM‑5.  They also seek an order that the full name of Desi, his family members, his hospital, the Independent Children’s Lawyer (we do not have an Independent Children’s Lawyer), his medical practitioners, his school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of Desi’s parents, the parents’ lawyers and any other fact or matter that may identify Desi shall not be published in any way, and only anonymised reasons for judgment and orders 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 numbers and lawyers’ names.  The third order sought is that no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge. 

Background

1. The brief background facts are as follows.

2. The parents commenced living together in 1998.  As I have said, in 1999, Desi was born.  He is the only child of the parents’ relationship. 

3. Desi reported to his psychiatrist, Dr K, that he never really identified as a girl despite being physically female and instead identified with male characters.  He told Dr K that he found out about transgender people when he was 11 years of age and has had thoughts about becoming a male since he was about 12 years of age. 

4. In 2012 when Desi was in year seven his mother noticed that he started to use social media to contact other transgender people. 

5. In 2014 Desi started to make friends with other transgender people. 

6. From 2014 Desi has experienced depression and anxiety and throughout that year he started to avoid attending school.  At the beginning of 2015 Desi ceased attending school and he enrolled in distance education. 

7. In early 2015 Desi started to wear a chest binder, cut his hair short and he has worn male typical clothing since that time.  In 2015 Desi engaged in superficial deliberate self‑harm.  In February 2015 Desi informed his mother that he identified as non‑binary gender.  At around this time he also attended a camp for lesbian, gay, transgender, intersex and queer children (“LGBTIQ”) which he has now attended twice.  Desi now has a network of friends of a similar age many of whom also identify as LGBTIQ. 

8. In April 2015 Desi told his parents that he was transgender. 

9. During 2015 Desi attended on two psychologists due to his feelings of gender dysphoria.  He attended six appointments in total but reported that he did not find such treatment helpful. 

10. In semester one of 2016 Desi commenced attending TAFE.  He studied two courses, but did not complete either course.  Desi reported to Dr K that he did not fit in with the other students and was uninspired by his teachers. 

11. On 11 August 2016 Desi attended his first appointment with psychiatrist, Dr K, and on 12 September 2016 Desi attended upon consultant physician and endocrinologist, Dr H.  On 12 November 2016 Desi attended a further appointment with Dr K.  Desi informed Dr K that he never really identified as a girl, although he knew that he was physically female.  He had friends of both sexes and in his imagination strongly identified with male teenage and animal characters.  Desi disliked the pubertal changes in his body, such as development of breasts, retaining a high voice and developing a female body shape, which he finds highly distressing.  He informed Dr K that he found out about transgender people when he was 11 years old and has had thoughts of becoming a male since he was 12.  He “copes” with his menstrual periods but dislikes the fact that he has them, being a recurring reminder of his female sex. 

12. Desi started living full time as a male from the beginning of 2015.  He retains an interest in makeup and jewellery but of unconventional styles. 

13. Dr K said:

    7.3At interview, [Desi] presented as a pleasant and cooperative mid‑adolescent assigned female wearing casual, loose‑fitting, male-typical clothing.  He had colourfully dyed hair cut in a short and irregular style.  His speech was rapid but normal in form.  He had a strong conviction that he was male in gender but there were no delusions.  [Desi] admitted to often wishing that he was no longer alive, though denied active suicidality.  He denied recent deliberate self‑harm, but he still has poor motivation and low self‑esteem.  His affect was superficially broad and appropriate, but he was easily brought to tears.  He described his mood as low.  There was no evidence of hallucinations.  He appeared to be alert, cognitively intact and of above average intelligence.

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.

   ·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 v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”). The relevant passage is that of Lord Scarman at 188 - 189 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.

Expert evidence

1. Dr K has diagnosed Desi as having the condition of gender dysphoria.  Dr K said that Desi’s history and clinical presentation fulfil the criteria for gender dysphoria in adolescents and adults set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM‑5).  He described this by reference to the criteria in the DSM‑5.  He referred to Criteria A which is: 

   A marked incongruence between his experienced and expressed gender (i.e. male) and his (female) assigned gender, of at least six months’ duration, as manifested by at least two of the following:

   1.A marked incongruence between the person’s experienced and/or expressed gender (i.e. male) and the person’s (female) primary and/or secondary sex characteristics.

2. Dr K said about this: 

   [Desi] has consistently considered and felt himself to be a male since he was 15 years of age, and has lived publicly as a male since early 2015.  He describes being highly distressed by the secondary sex characteristics of his body as they do not match with his sense of who he is as a person.

   2.A strong desire to be rid of his (female) primary and/or secondary sex characteristics because of the marked incongruence with his experienced and expressed gender. 

3. About this matter Dr K said: 

   [Desi] clearly stated that he wants to have a flat chest.  He has been wearing binders to flatten his breasts for two years.  

   3.A strong desire for the primary and secondary sex characteristics of the other (male) gender.

4. About this matter Dr K said: 

   [Desi] stated that he strongly wants to have a deep voice, facial and body hair and a masculine torso.  He is not desirous of genital reconstruction surgery.

   4.A strong desire to be of the other (male) gender. 

5. Dr K said Desi started to feel this way five years ago and described consistently feeling this way for the past two years. 

   5.A strong desire to be treated as being of the other (male) gender.   

6. Dr K said: 

   [Desi] said that he needs to be seen and treated as a male by people around him.  This is a strong and persistent desire. 

   6.A strong conviction that he has the typical feelings and reactions of the other (male) gender.

7. About this Dr K said: 

   [Desi] does not overtly categorise his feelings and reactions in gender terms. 

8. Then Dr K referred to Criteria B in the DSM-5 which is: 

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

9. Dr K said: 

   [Desi] is highly dysphoric about his body and has suffered disabling anxiety and significant depression over the past two years.  He has been unable to attend school or complete TAFE courses in areas of interest, despite being an able and intelligent young person with good interpersonal skills.  There is no clinical doubt that his gender dysphoria is exacerbating and maintaining his vulnerabilities to anxiety and depression, thereby severely impairing his social and educational development at a crucial time of his life.

10. In his report, Dr K described the proposed procedure and its effects.  He noted that Phase 2 medical treatment for gender dysphoria for an individual who is transitioning from female to male constituted the administration of exogenous testosterone.  He noted that the purpose of the treatment was to promote the development of male secondary sexual characteristics and suppress or reduce further development of the person's female secondary sexual characteristics.  He noted that menstruation would also cease in the majority of cases. 

11. Significantly, Dr K said that the procedure alleviates much of the psychological distress caused by the incongruence between the child’s experienced and expressed male gender versus his secondary sexual characteristics and his socially assigned gender, the latter typically being based on the phenotypic (anatomical) sex.  The child thereby comes to feel much more at ease with his body in terms of its appearance and functioning, as well as with his social identity.  Other people will be much more likely to perceive him to be male, and will automatically treat him as such.  This social validation further validates the child’s sense of core gender identity, raises his self‑esteem and reduces stress, anxiety and depression. 

12. Then Dr K said that it should be noted that Desi has significant anxiety and a history of depressive episodes, and has engaged in deliberate self-harm in the past, much of which may be attributed to the stress of his gender dysphoria. 

13. Dr K went on to note the likely short and long‑term physical, social and psychological effects of the procedure (including any risks) and he divided these up under two headings as follows:

    If the procedure is carried out.

14. Dr K said that if the procedure is carried out, the proposed treatment will induce development of male secondary sexual characteristics.

15. Those matters are also referred to by the other expert, Dr H, whom, as I have said, is a physician and endocrinologist.  I shall refer to those matters below.

16. In terms of the physical risks, Dr K noted that these include limiting height, acne, male pattern baldness, elevated HDL cholesterol, renal dysfunction, hepatic dysfunction and the possibility of weight gain. 

17. Dr K said amongst the social risks are rejection by members of the extended family, friends and casual acquaintances, discrimination at educational and training institutions, in public and in the workplace, harassment and abuse, including physical and sexual attack, as Desi may be perceived as a vulnerable target and an object of hatred by transphobic or otherwise misguided people. 

18. Dr K said the psychological risks include the stress of passing as a person of male gender whilst still in the process of transitioning; adjustments to his sense of identity as his body changes; recurrence or exacerbation of mood disorder due to the hormone therapy. 

    If the procedure is not carried out.

19. Dr K said that although Desi will turn 18 years of age in several months’ time, he is very keen to commence medical transitioning as soon as possible.  Further delay will increase his frustration, add to his dysphoria, worsen his anxiety and may well precipitate a relapse into self‑harm, suicidality and depression.

20. Then Dr K looked at the question of those persons who are supportive of this procedure and he made the observation, firstly, that Desi is in agreement with the procedure.  Dr K said the child’s parents agree to the procedure and he noted that both medical professionals who are treating Desi, that is both himself and also Dr H whom I have mentioned is the endocrinologist, agree to the procedure. 

21. Dr K considered whether the child has trust and confidence in the doctor‑patient relationship.  He said that Desi attends his appointments.  He said he is pleasant and cooperative and makes good eye contact at interviews.  He said Desi impresses as being open and honest in his answers and follows medical advice and directions.  He said Desi manifests every evidence of having trust and confidence in the doctor‑patient relationship. 

22. He said that Desi has now left school and has not engaged in further education or training at this time.  He said that Desi has the support of his parents, as I have said, and of his friends regarding the Phase 2 treatment.  Dr K also said that he was informed that Desi’s extended family is also accepting and supportive of his gender transitioning and thus would most likely be in support of the procedure. 

23. Dr H, as I have indicated above, is the consultant physician and endocrinologist for Desi.  In his report, he notes that Desi’s diagnosis is one of having gender dysphoria. 

24. Dr H described the proposed treatment as follows, and he said:

    Phase two treatment comprises physiological doses of the male hormone testosterone to bring about male secondary sexual characteristics.  Oral, percutaneous or parenteral forms of testosterone can be used.  In the absence of needle phobia, treatment is generally commenced with the depot intramuscular preparation testosterone enanthate (Primoteson) given at a dose of 250mg every three weeks.  The interval between injections is generally shortened to every fortnight after three months on treatment.  Regular clinic attendance and periodic blood tests are required to monitor progress. 

    The general consensus regarding the timing of commencing of cross sex hormones (phase two treatment) in transgender children and adolescents is at or following the age of sixteen years. 

25. Dr H said that as Desi is now approaching his eighteen birthday, he is keen to commence testosterone therapy as soon as possible.

1. Dr H noted the purpose of the treatment as being to ameliorate the dysphoria accompanying Desi’s gender incongruence and bring about physical changes that will allow him to live according to his preferred gender, and reach his full life’s potential. 

2. Dr H noted that the physical changes involved are those of masculinisation.  He said on the positive side testosterone therapy typically results in increased muscle strength, stamina and energy levels.  He said on the negative side there can be problems with acne and male pattern balding, but the accompanying manifestations of increased body hair and deepening of the voice are generally considered positive by transgender individuals in this setting.  He said adverse medical outcomes such as liver dysfunction, hypertension and polycythaemia are uncommon, particularly in this age group. 

3. He referred to the likely short and long‑term effects on the child if treatment was not carried out.  Dr H said a potential scenario in which medical treatment was refused was for individuals to obtain illicit drugs which are commonplace in gymnasiums.  He said such preparations are unregulated with no guarantee regarding their efficacy or safety.  He said such treatment does not afford an individual the benefit of regular blood tests and periodic review.  Therefore, at the very least, medically supervised hormone treatment can be considered an exercise in harm minimisation.

Is Desi competent to consent to the Gillick standard?  

1. Dr K considered this question under various criteria as follows: 

   ·Is the child able to comprehend and retain both existing and new information regarding the proposed treatment? 

2. Dr K said this was demonstrated through the process of the interview, particularly in the discussion of medical aspects of the treatment. 

   ·Is the child able to provide a full explanation in terms appropriate to his level of maturity and education, of the nature of Phase 2 treatment? 

3. About this matter Dr K said Desi was aware that the treatment essentially comprises being given testosterone, and that this could be given either as a gel or as injections.  He knew that he would be given smaller doses more frequently at first and that it was possible to eventually have one injection every three months. 

   ·Is the child able to describe the advantages of Phase 2 treatment? 

4. Dr K said that Desi immediately said that he would pass (as a male) better and will be “treated like a guy by other people”.  He said that he likes the idea of looking like a male and is not worried about his height.  He said he looks forward to his voice being lower, to the fat distribution of his body changing to a male pattern, and to eventually having top surgery that the testosterone would help to prepare him for.  Dr K said that he informed Desi that his mood state may improve and that he would probably get more muscle development. 

   ·Is the child able to describe the disadvantages of Phase 2 treatment? 

5. About this Dr K said Desi was aware that he might develop acne and might go bald, but said that he was not worried about that.  He said that he might lose some empathy and become more aggressive.  Dr K informed Desi that it was possible to have liver reactions to the testosterone, to develop excessive red blood cells (polycythemia), high blood pressure, high blood lipids and perhaps an increased risk of some cancers.  Dr K said Desi acknowledged the inconvenience of regular injections and clinic visits, which he knew would be required for the rest of his adult life. 

   ·Is the child able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when he should proceed with Phase 2 treatment? 

6. About this Dr K said Desi said “I feel like the advantages outweigh the disadvantages definitely.  I am not really worried about the side effects and will deal with them if they happen.”

   ·Is the child able to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that the child had before the commencement of treatment? 

7. About this matter Dr K said Desi stated that he did not expect that testosterone would help all of his existing problems, but felt strongly that these problems, especially depression, would worsen if he cannot commence the treatment.

Opinions

1. Dr K said that it was his opinion that Desi was free to the greatest extent possible from temporary factors that could impair his judgment in providing consent to the procedure.  He said Desi was in clear consciousness, in no physical pain and was interviewed individually. 

2. Dr H said as follows:

   I believe that [Desi] is able to comprehend the nature of the treatment such that he is able to provide informed consent, according to the Gillick standard.  [Desi] is aware of the potential benefits and negative effects of treatment, including the effects on fertility.  [Desi] is aware that some of the effects of testosterone, such as deepening of the voice and scalp hair loss, are permanent and remain even if treatment is discontinued.  [Desi] is cognisant of the fact that the treatment may have unforeseeable consequences.  [Desi’s] expectations of treatment are realistic such that he does not expect treatment to address all future psychological and social difficulties that he may encounter.

3. Desi’s mother said that Desi is a deep thinker who considers all aspects and consequences before making a decision.  She said that she and his father have always respected and listened to his opinion.  Desi’s mother said that Desi understands well the effect of Stage 2 treatment and the resulting changes, some of which might be permanent. 

Conclusion

1. On the basis of the expert evidence and that of Desi’s parents, in my view, Desi has a clear understanding of what the proposed medical treatment would involve, the advantages and disadvantages of treatment and of the possible psychological and social issues involved.  I am satisfied that he has been able to process that relevant information to weigh the advantages and the disadvantages and be able to arrive at a clear judgment about whether to undertake the proposed treatment. 

2. In all the circumstances, in my view, this child is competent at the Gillick standard to consent to the proposed treatment. 

3. I shall make the orders sought. 

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 March 2017.

Associate:     

Date:  6 April 2017