Re: Gabrielle

[2016] FamCA 470

FAMILY COURT OF AUSTRALIA

RE: GABRIELLE [2016] FamCA 470

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a child with gender dysphoria – Where the applicants seek a finding that the child is competent to authorise Stage 2 treatment – Where the child’s treating medical experts 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 at law to make her own decision as to Stage 2 treatment.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 4.10

Gillick v West Norfolk and Wisbech Area Health Service [1986] AC 112
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: 10 June 2016

JUDGMENT OF: Justice Stevenson

HEARING DATE: 5 May 2016

REPRESENTATION

By Court Order the names of solicitors have been suppressed

Orders made 5 May 2016

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initiated, the name of Gabrielle’s parents’ lawyers, and any other fact or matter that may identify Gabrielle shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file-number, and lawyers’ names and details, as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

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

3. Upon the Court being satisfied and finding that the child Gabrielle born on … 2000 is competent at law to consent to Stage 2 medical treatment for gender dysphoria, the Court authorises Gabrielle to make her own decision in relation to that treatment.

4. The operation of order 3 hereof is suspended for a period of 14 days from today’s date.

5. The applicants will effect service, within 48 hours, upon the Director of the relevant Government Department of all applications and affidavits filed in these proceedings, together with a sealed copy of these orders and file evidence of such service within a further period of 48 hours.

6. The Director of the relevant Government Department has liberty to apply in relation to the orders made on 5 May 2016, upon 48 hours’ notice to the applicants.

7. In the event that the Director of the relevant Government Department takes no action in relation to the orders made on 5 May 2016 within the period of 14 days prescribed by order 6, the orders of 5 May 2016 shall automatically assume full force and effect.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Gabrielle 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

Applicant

And

The Father

Applicant

REASONS FOR JUDGMENT

The proceedings

1. The Mother and the Father are the parents of a child known as Gabrielle, who was born in 2000 and is presently 15 years of age.  Gabrielle is genetically male but identifies as a female person.  She was previously known as R.  Gabrielle has been diagnosed with gender dysphoria by specialist medical practitioners at the X Hospital.

2. Gabrielle commenced puberty blocking treatment in October 2014.  It is now proposed by Gabrielle, her parents and her treating medical specialists that she commence Stage 2 treatment, which involves administration of oestrogen.

3. By an Initiating Application filed on 29 April 2016 the parents sought the following interim and final orders:

   Final orders sought

   1.That the Duty Registrar grant an abridgement of time in respect of the return date in this application.

   2.That leave be granted to have the proceedings heard in camera.

   3.That this matter be listed for an urgent hearing.

   4.That the name of the child [Gabrielle] (formerly known as [R]), born … 2000 (“the child”) and all others involved in this matter not be released.

   5.That the child be declared Gillick competent to consent to estrogen hormone therapy treatment.

6.As an alternative to the orders sought in paragraph 5 herein that the child be granted Parental Responsibility in relation to medical issues.

7.Any other orders deemed necessary by this Honourable Court.

Interim or procedural orders sought

1.That the Duty Registrar grant an abridgement of time in respect of the return date in this application.

2.That leave be granted to have the proceedings heard in camera.

3.That this matter be listed for an urgent hearing.

4.That the name of the child [Gabrielle] (formerly known as [R]), born … 2000 (“the child”) and all others involved in this matter not be released.

5.That the child be declared Gillick Competent to consent to estrogen hormone therapy treatment.

6.As an alternative to the orders sought in paragraph 5 herein that the child be granted Parental Responsibility in relation to medical issues.

7.Any other orders deemed necessary by this Honourable Court.

1. Notably no application was made for an order dispensing with service on the prescribed child welfare authority, as is required by Rule 4.10.  This Rule provides as follows:

   4.10  SERVICE OF APPLICATION

   4.10  The persons on whom a Medical Procedure Application and any document filed with it must be served include the prescribed child welfare authority.

1. No evidence was offered nor any submission put as to why I should dispense with compliance with Rule 4.10.  I was not prepared to accede to the apparent assumption on the part of the solicitor for the applicants that I would and should dispense with service completely.

2. On 5 May 2016 I made the following Orders, over the objection of the solicitor for the applicant:

   1.The full name of [Gabrielle], her family members, her hospital, her medical practitioners, her school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of [Gabrielle’s] parents’ lawyers, and any other fact or matter that may identify [Gabrielle] 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 numbers and lawyers’ names.

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

   3.Upon the Court being satisfied and finding that the child [Gabrielle] born on … 2000 is competent at law to consent to Stage 2 medical treatment for gender dysphoria, the Court authorises [Gabrielle] to make her own decision in relation to that treatment.

   4.The operation of order 3 hereof is suspended for a period of 14 days from today’s date.

   5.The applicants will effect service, within 48 hours, upon the Director of the [relevant Government] Department of all applications and affidavits filed in these proceedings, together with a sealed copy of these orders and file evidence of such service within a further period of 48 hours.

   6.The Director of [the relevant Government Department] has liberty to apply in relation to the orders made on 5 May 2016, upon 48 hours’ notice to the applicants.

   7.In the event that the Director of [the relevant Government Department] takes no action in relation to the orders made on 5 May 2016 within the period of 14 days prescribed by order 6, the orders of 5 May 2016 shall automatically assume full force and effect.

   I indicated that I would provide written reasons for my decision at a later time and I now do so.

3. The use of the term “Gillick competent” in the application invites a finding by the Court that Gabrielle is able to consent for herself to Stage 2 treatment.  This phrase is derived from the decision of Gillick v West Norfolk and Wisbech Area Health Service [1986] AC 112 (“Gillick”).

4. In Gillick, 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.  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.

5. In Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) the High Court of Australia (Mason CJ, Dawson, Toohey and Gaudron JJ) said, in relation to the Gillick principle, 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.”

Background

1. The mother was born in 1969 and is currently 46 years old.  The father was born in 1969 and is presently aged 47 years.  They began to live together in a de facto relationship in 1996 and separated at a time which was not indicated in the evidence.  It was readily apparent that the parents have co-operated with each other and Gabrielle’s medical practitioners during her treatment.

2. The mother deposed that Gabrielle told her parents that she identified as a transgender person when she was twelve years of age.  She deposed that Gabrielle sought out feminine toys, for example Barbie dolls, and female dress-ups from an early age.

3. On 14 May 2014 Gabrielle saw Dr T, a consultant adolescent physician, for the first time.  Gabrielle has had eight consultations with Dr T and she has also seen Professor P, a child and family psychiatrist.  Dr T and Professor P are among staff members at the X Hospital Gender Clinic.

4. Dr T and Professor P have made a diagnosis of gender dysphoria in relation to Gabrielle.  Professor P reported that Dr S, a consultant child and adolescent psychiatrist, confirmed this diagnosis in September 2014.

The evidence

1. The applicants relied upon the following affidavits:

   1.The Mother sworn on 13 April 2016;

   2.Professor P sworn on 21 April 2016, annexing a report dated 28 February 2016; and

   3.Dr T sworn on 25 February 2016, annexing a report dated 6 January 2016.

   No oral evidence was given during the hearing on 5 May 2016.

The proposed treatment and its effects

1. Dr T set out in her report “the exact nature and purpose of the proposed medical procedure” as follows:

   I propose to treat [Gabrielle] with oestrogen, the female sex hormone, to induce feminisation of her body.  [Gabrielle] is currently undertaking Stage 1 (puberty blocking) treatment for Gender Dysphoria which involves subcutaneous injections of the gonadotrophin releasing hormone analogue, zoladex every 10 weeks.

   I propose to commence [Gabrielle] on oestradiol valerate (trade name Progynova) at the recommended initial dosage of 1mg orally daily.  During the first 6-12 months of this treatment the puberty blocker zoladex will be continued to prevent a rise in endogenous (naturally produced) testosterone levels while the dose of oestradiol valerate is low.  On cessation of zoladex, spironolactone will be commenced at 100mg twice daily to block the endogenous testosterone effect on her body.  After a period of 6-12 months the dose of oestradiol valerate will be reassessed and possibly increased to 2mg daily.  The final adult dose of oestradiol valerate is 2-4mg daily which will be reached following 2 years of treatment.  This treatment is appropriate for the longer term management of [Gabrielle’s] gender dysphoria.

1. Professor P explained the proposed treatment in these terms:

   It is proposed that [Gabrielle] commence cross-sex hormone treatment with oestrogen in order to minimise further masculinisation of her body and to facilitate feminisation of her body including breast development.

1. Dr T set out “the likely long-term physical, social and psychological effects on [Gabrielle]” in the event that she undergoes the proposed treatment.  She also considered these likely effects if Gabrielle is denied oestrogen treatment.  Dr T reported as follows:

(c)  The likely long-term physical, social and psychological effects on [Gabrielle]:

(i)If the treatment is carried out, the effects of oestrogen on [Gabrielle] will include:

·Breast development

·Decreased facial and body hair to that which is more consistent with female appearance

·Increased fat on buttocks, hips and thighs consistent with a feminine shape

·A decrease in muscle mass and strength

·Decreased fertility with decreased sperm production and function

·Social benefits of greater aesthetic consistency with her female gender identity

·Psychological benefits include decreased depression and anxiety associated with transition and reduced risk of
self-harm and suicide.

(ii)If the treatment is not carried out ie. If [Gabrielle] is denied oestrogen treatment:

·[Gabrielle’s] body would remain masculine in appearance

·[Gabrielle] would be being denied therapeutic treatment for gender dysphoria which would result in a loss of recognition and validity of her sense of self and her gender identity

·[Gabrielle’s] depression and anxiety symptoms will increase

·She will be at greater risk of self-harm and death via suicide

·[Gabrielle] may choose to access oestrogen illegally and will not be able to do so with medical advice and monitoring for complications.  This is potentially dangerous to her physical and mental health.

1. Professor P carried out the same exercise and reported as follows:

   c.  the likely long-term physical, social and psychological effects on the child:

   a.        if the procedure is carried out;

   Physical:  Treatment with oestradiol under the direction of consultant adolescent physician or an endocrinologist will lead to feminisation of [Gabrielle’s] body.  This would include the development of breasts, reduction of facial and body hair, redistribution of body fat so that buttocks, hips and thighs have a more feminine shape;  smoother, less oily skin;

   Reduced fertility with suppression of spermatogenesis.  Oestrogen therapy would continue to suppress the emergence of secondary male sexual characteristics such as enlarged penile and testicular development, male facial and body hair distribution, increased height and masculine build.  The development of male physical features otherwise I believe would be severely detrimental to [Gabrielle’s] emotional and social development.

   Social:  Continuing treatment with cross-sex hormones will be necessary for [Gabrielle] to continue to live happily as female.  As her body becomes more obviously feminine, [Gabrielle] will experience a major improvement in her level of social confidence with her girlfriends, family and her extended social network.  It will also enable [Gabrielle] to continue to explore personal relationships with boys in a much more relaxed and confident way.

   Psychological:  I believe that the development of a feminine habitus and female secondary sex characteristics would minimise the possibility of [Gabrielle] developing major depressive and anxiety symptoms.  She might otherwise be at risk of becoming despairing about her predicament, increasing the possibility of self-harm or suicide.  There is an increased likelihood of significant self-harm and suicide in young people with gender identity disorder who feel they have to live in a body with which they are not fully comfortable.  Continuing female hormone treatment is likely to minimize the risk of future major mental health problems.  I believe [Gabrielle] would be extremely distressed should male secondary sex characteristics appear if her endogenous testosterone levels continue to rise.

   b.  if the procedure is not carried out;

   Physical:  Without oestrogen treatment, there will be no feminisation of [Gabrielle’s] body and she will remain in a state of suspended pubertal development, and given that puberty suppression will not continue indefinitely, her body would resume masculinisation after cessation of Zoladex treatment.

   Social:  [Gabrielle] has been increasingly confident living with her peers as a girl.  Without being able to commence feminisation of her body, she will remain anxious and self-conscious in many social situations and isolated.

   Psychological:  Without commencing oestrogen treatment, I believe that [Gabrielle] is at a very high risk of developing further episodes of depression, with symptoms of social anxiety, self-loathing, and an increased risk of self-harm and suicidal ideation.

2. Dr T considered “the nature and degree of any risk to Gabrielle from the procedure” and reported:

   (d)  The nature and degree of any risk of [Gabrielle] from the procedure.

   The use of oestrogen will induce feminising changes to [Gabrielle’s] body (induction of breast growth, decreased facial and body hair, softening of skin, decreased libido and changes to fat distribution).

   There are longer term risks from taking oestrogen and spironolactone which include:

   Specific risks of Oestrogen;

   ·          Chronic problems with veins in the legs

   ·          Heart disease

   ·          Pulmonary embolism (blood clot to the lungs)

   ·          Stroke

   ·          Type 2 diabetes

   ·          Liver disease

   ·          High cholesterol and high blood pressure

   ·          Gallstones

   ·          Headaches or migraines

   ·Prolactinoma (non-cancerous tumour of the pituitary gland)

   Specific risks of spironolactone;

   ·Gastrointestinal symptoms (cramping, diarrhoea, nausea, vomiting, ulceration and gastritis)

   ·Drowsiness

   ·Lethargy

   ·Headache

   ·Skin reactions

3. Professor P also reported on the nature and degree of any risk to Gabrielle from the proposed procedure.  He opined as follows in relation to psychological risk:

   I believe there are minimal psychological risks from commencing oestrogen’s treatment, (oestradiol and subsequent spironolactone treatment if indicated).  Although extremely unlikely, it is remotely conceivable that at some stage in the future [Gabrielle] may feel uncomfortable living as a female and wish to change back to being male.  I believe this is extremely unlikely given the intensity, consistency and persistence with which she has experienced her female identity.  However, continued treatment may make it difficult for her to feel confident that people will accept her moving back to a male role.  Given the strength of personality evidenced by [Gabrielle] I also feel this is a very low risk.  In the extremely unlikely event that [Gabrielle] should decide to change back to being male, I believe she has the thoughtfulness and creativity to be able to manage possible de-transition comfortably.

   There is the hypothetical risk that the continued treatment may lead to a more stereotypic feminine emotional and cognitive personality development.  At the moment this is entirely consistent with what [Gabrielle] wishes, and I understand that there is minimal evidence that the hypothetical changes in personality functioning are of behavioural significance.

1. Both Dr T and Professor P reported that there are no less invasive treatments available which would have the effect of feminisation of the body of a biologically male person.  They both expressed a strong view that oestrogen therapy is necessary for Gabrielle’s welfare.

2. Dr T opined as follows:

   I consider that the treatment described above is in [Gabrielle’s] best interests and is necessary for her welfare.  In particular, it is necessary for [Gabrielle’s] mental health and will play a role in decreasing her risk of self-harm and death via suicide.  Research consistently demonstrates that denial of support and medical treatment for children and adolescents with gender dysphoria carries with it a 50% risk of self-harm and a 30% risk of attempted suicide during adolescence.  Access to the treatment proposed for [Gabrielle] has been shown to decrease anxiety and depression (De Vries, 2014).

1. Professor P expressed these opinions:

   I believe the treatment with oestrogen therapy as described above is definitely necessary for the overall welfare of [Gabrielle].  As indicated her social and emotional development, and in particular her mental health in the short and long term will be profoundly compromised without feminisation of her body and the commencement of oestrogen therapy.  Oestrogen therapy will also minimise further potentially irreversible masculinisation of her body.

Gabrielle’s Gillick competence

1. The mother expressed the view that:

   23.[Gabrielle] is an inspiration to us all leading such a normal balanced life throughout her transition process.  She displays maturity beyond her years, and talks about her transition with such clarity and
   self-awareness...

2. It is evident from the report of Dr T that Gabrielle’s parents were initially hesitant about her embarking upon a transition process.  In a letter dated 14 May 2014, to a general practitioner, Dr T wrote:

   [The Mother] appeared genuinely concerned with regards to [Gabrielle’s] welfare, and feels that taking the path of living in the female gender role will make life extremely difficult for [Gabrielle].  I explained to [the Mother] that although this is certainly the case, not being able to express one’s preferred gender identity is also a difficult road to go down in the longer term.

3. On 30 September 2014 Dr T reported to the general practitioner:

   After much discussion with both parents, they have signed the consent forms for puberty blockers.  Given the completion of this assessment and with [Gabrielle’s] keenness to commence puberty blockers using GnRH analogues, she received her first injection today...

   Both of Gabrielle’s parents are fully supportive of her embarking upon State 2 treatment.

4. Dr T specifically considered the issue of Gabrielle’s Gillick competence and reported:

   I feel that [Gabrielle] has the intelligence and emotional maturity to consent to the procedure.  I also believed that she agrees to the procedure.  Her treatment pathway was initiated by [Gabrielle] herself and she has been the one to drive the process through assessment and treatment.

5. Dr T reported further:

   I have had a number of discussions with [Gabrielle] about the treatment using oestrogen and spironolactane and the complications that may occur.  These discussions have included the consequences to her fertility and the need to store sperm prior to the commencement of puberty blocking medication should she wish to do so.  [Gabrielle] has been able to understand these discussions and ask appropriate questions.  [Gabrielle] chose to store sperm prior to the commencement of puberty blockers through the [Z] Hospital.

   I have absolutely no doubt that [Gabrielle] agrees to the procedure.

6. On the question of Gillick competence Professor P opined as follows:

   I believe that [Gabrielle] is capable of making an informed decision to commence treatment with oestrogen therapy.  [Gabrielle] has said on many occasions, unambiguously, that she wants to commence treatment with oestrogen therapy.  She clearly agrees to the procedure, namely commencing oestrogen therapy.  [Gabrielle] has read the information sheet provided by the [Hospital] and I believe she understands the benefits of feminisation of her body, and the potential risks that might arise from long-term use of oestrogen as is currently understood.  [Gabrielle] has also looked extensively on the Web regarding the experience of other young people with gender dysphoria who transition and commence hormone treatment.  She has done this in a thoughtful and curious way and has been very ready to talk about her understanding of the experience of others as it might inform her own decisions.  [Gabrielle] has maturely sought to help herself with the distress she experiences by meeting with a speech pathologist experienced in the area of gender dysphoria.

   She is also aware that oestrogen has the theoretical possibility of minimising some of the male-based health risks associated with male levels of testosterone, but does not give this overdue importance.  [Gabrielle] was able to ask appropriate questions relating to the impact of oestrogen on her body.  It was clear that she is extremely uncomfortable with the masculine aspects of her body, such as facial hair, voice and larger muscles.  [Gabrielle] was aware that oestrogen therapy may minimise the possibility of using her sperm in the future should she wish to try to have a child with her own genetic material.

Conclusion and findings

1. I accept the evidence of the mother, Dr T and Professor P to the effect that Gabrielle has sufficient intellectual capacity and understanding to appreciate fully the information pertaining to a decision to embark upon Stage 2 treatment for gender dysphoria.  I find that Gabrielle is competent in law to give a valid consent to Stage 2 treatment for gender dysphoria.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justices Stevenson delivered on 10 June 2016.

Associate: 

Date:  10 June 2016