Re: Marco

[2016] FamCA 187

FAMILY COURT OF AUSTRALIA

RE: MARCO [2016] FamCA 187

FAMILY LAW – CHILDREN – Medical Procedures – Where the applicants, who are the parents of the child, seek a declaration that the child is competent to consent to the administration of stage 2 treatment for Gender Dysphoria – Where alternative orders are sought to authorise the parents to consent to the treatment – Where orders are sought to maintain the confidentiality of the proceedings – Where an order is made dispensing with the rule requiring service upon the respondent, the relevant Government Department – Where a finding is made that Marco is Gillick competent to consent to the medical treatment – Where the applications are otherwise dismissed – Where orders relating to confidentiality are made.

Family Law Act 1975 (Cth)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Re: Jamie (2013) FLC 93-547

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

APPLICANT: The Mother and the Father

RESPONDENT: Relevant Government Department

FILE NUMBER:  By Court Order File Number is suppressed

DATE DELIVERED: 30 March 2016

JUDGMENT OF: Watts J

HEARING DATE: 21 March 2016

REPRESENTATION

By Court Order the solicitor’s names have been suppressed

FINDING

1. The court finds that the child, Marco, born … 1998 is Gillick competent to consent to stage 2 medical treatment for Gender Dysphoria as classified in the Diagnostic and Statistical Manual of Mental Disorders 2015 (DSM-5) such treatment being physiological doses of testosterone to bring about male secondary sexual characteristics.

ORDERS

1. The requirement of Rule 4.10 Family Law Rules 2004 (Cth), that the Initiating Application filed 4 March 2016 be served on the prescribed child welfare authority, be dispensed with.

2. The applicants’ Initiating Application filed 4 March 2016 be dismissed.

3. The name of the child, Marco, born … 1998, the child’s family members and their occupations, the child’s medical practitioners, this court’s file number, the State or Territory of Australia in which these proceedings were initiated and any other fact or matter that might identify the child shall not be published in any way.

4. Only anonymised Reasons for Judgment and Orders shall be released by the court to non-parties without further contrary order of a Judge.

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

6. The applicants be at liberty to provide a copy of the un-anonymised finding and orders and un-anonymised reasons for judgment to all persons involved with Marco’s treatment.

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

Applicant

And

Relevant Government Department 

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Marco has been diagnosed as having Gender Dysphoria based upon the DMS-5 diagnostic criteria.

2. Marco will be 18 in mid-2016. He is currently in his final year at high school. He wishes to commence stage 2 treatment immediately.

3. Marco’s parents made a joint application for the following declaration and, in the alternative, the following order:

   1.    That the Court declares that the child [Marco] born … 1998 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 or Mental Disorders (2013) DSM-5.

   In the alternative:

   2. That [the Mother] and [the Father] as parents of [Marco] may authorise the administration of Stage 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 under s 67ZC of the Family Law Act on and from a date to be determined by the treating medical team of [Marco].

4. In addition, Marco’s parents sought orders seeking confidentiality and restrictions on persons who shall be permitted to search the court file.

THE LAW

1. A Gillick competent child is one who has achieved “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 189 and see 169, 194-195; Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)).

2. The Full Court in Re Jamie (2013) FLC 93-547 determined:

   6.1.Stage 2 treatment for Gender Dysphoria is a special medical procedure which required the court’s authorisation pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”), unless the child was Gillick competent to give informed consent.

   6.2.The court’s authorisation is not required if the child is Gillick competent and in those circumstances the decision is left to the child (Bryant CJ [139 – 140(d)]; Finn J [188] although at [140(d)] Bryant CJ adds the words “absent any controversy”).

   6.3.The court and not the child’s treating professionals should determine whether a child is Gillick competent as a threshold question (Bryant CJ at [136-137, 140(e)]; Finn J at [186] and Strickland J at [196]).

3. In Re: Jamie at [139], Bryant CJ explicitly said, “That application however would only need to address the question of Gillick competence and once established the court would have no further role”. At [188] Finn J said, “If the court was completely satisfied of the child’s capacity to consent to stage 2 treatment, it would be unnecessary for it to have to authorise the treatment”. At [192] Strickland J said that he agreed with the outcomes and generally for the reasons set out by the other two judges in the case.

4. The inquiry embarked upon is to establish or deny whether or not the court has jurisdiction to authorise stage 2 treatment for Gender Dysphoria. If the child is not Gillick competent, then the court has jurisdiction (s 67ZC of the Act) and power (s 34(1) of the Act) to authorise the treatment. If the child is competent, then the jurisdiction and power is not enlivened and I interpret Re: Jamie to mean that the appropriate outcome is that:

   8.1.A finding in respect of Gillick competence is recorded; and

   8.2.An order is made dismissing the application for authorisation of the treatment. 

5. When conducting this inquiry, given the provisions of s 67ZC(1) of the Act are not yet enlivened, the court is neither required to have regard to the best interests of the child as the paramount consideration (s 67ZC(2)) nor consider all the matters in s 60CB – s 60CG of the Act, although there may be an overlap between the facts relevant to making a finding about Gillick competence and some of the s 60CC(2) and (3) considerations, particularly s 60CC(3)(a) of the Act.

6. As Bryant CJ says at [139], the focus of the hearing is “the proposed treatment and its effects, and the child’s capacity to make an informed decision”. Nonetheless, any assessment of the child’s competence does not take place in a vacuum and is made having regard to the child’s welfare.

PROCEDURAL ASPECTS

1. I did consider appointing an ICL but given the clarity of evidence given by the parents and treating practitioners, I am more than comfortable in this case in making a finding that Marco is Gillick competent.

2. I note that I have only been asked to make a finding that Marco is Gillick competent to consent to stage 2 hormonal treatment, not in relation to “top surgery” (chest surgery/bilateral mastectomy). Dr H’s report dated 10 February 2016 notes that the “best practice guidelines in relation to surgical procedures is to be living full time in your chosen gender and on hormone treatment for a minimum of one year.” By that stage therefore, Marco would be 18 and able to consent to this treatment himself.

BACKGROUND

1. Marco was born in 1998. He is the second born of twin girls. He also has an older sister.

2. Marco’s parents married in 1995. They live with their children in an intact family unit.

3. Marco has legally changed his birth name from a female name to Marco and has a change of name certificate to that effect.

4. Marco was never observed to be interested or engaged in stereotypically feminine behaviour such as make-up, fashion or gossip. The father taught Marco things such as mechanics and handy work which he observed Marco to have an interest in. There was no pressure placed on Marco by his parents to conform to girl or boy expectations.

5. At primary school, Marco preferred to spend time with boys and refrained from being with girls. This preference was not always looked upon favourably by some of the male children and led to Marco feeling isolated during primary school. 

6. Marco was bullied in early high school but this stopped after school staff were notified.

7. Marco attends A High School and has achieved good results in his school reports. The father describes Marco as a “quiet achiever” who “is a dedicated student who aims at completing all his work to the best of his ability.” The father says that Marco sometimes experiences anxiety in trying to achieve his goals and has suffered from low confidence as a result. The parents encouraged him to discontinue a subject to reduce the demands of his HSC workload.

8. Marco is currently undertaking a major work in an Arts subject at school. His project explores his gender identity issues. The mother says that Marco loves to draw and his “drawings are often dark, and refer to difficult experiences at school growing up.”

9. Marco is also interested in water sports.

10. Since Year 9, Marco attended upon Ms T, Counsellor for two years. He recently stopped seeing her. Marco also has regular appointments with Dr J, GP. He also attends upon Dr K, an Adolescent Medicine Physician/Paediatrician at X Hospital.

11. In late 2013, Marco told the mother that he was transgender. He informed her at the same time that he started menstruating. When he told his mother, he had already informed his older sister who had referred him to some reading material on transgender issues. From this time, Marco gradually let the mother know how stressed he felt about the bodily changes that occurred during puberty. He was very concerned with privacy and told her that he would shower with clothes on to reduce the discomfort he felt with his body. Marco became angry whenever the mother mentioned “periods”. The mother tried to ease Marco’s discomfort by purchasing him chest binders and supported him in wearing more masculine clothing and having a more masculine haircut. The mother said that this made him happier.

12. The father was informed of Marco’s gender dysphoria by the mother. However, the father says that Marco had been providing him with hints to his Gender Dysphoria before this time for example in the manner of his dress and stereotypical male behaviour and interests.

13. In the year after Marco disclosed his Gender Dysphoria to his parents, he had a lot of anger issues in which his twin sister would also partake. His parents then sent both children to counselling which they benefitted from, particularly Marco.

14. Marco took more time to inform his grandparents and extended family of his Gender Dysphoria. He first told his paternal grandmother, from whom he received considerable support. He then informed his maternal grandmother and aunt. He only recently informed his paternal uncles, aunts and cousins. They have all been accepting of Marco’s gender identity. The father says “it seems as if the cousins had read the signs of [Marco’s] identity well ahead of any announcement made by [Marco].” The mother says that there is some minor resistance from his extended family, particularly with names and pronouns. For example his maternal grandmother and aunt, “perhaps by force of habit, still refer to him as “her”.” The mother says that the “process of coming out is understandably stressful but he always feels better after doing it.”

15. Marco has close relationships with his immediate and extended family. He is particularly close to his sisters who are very supportive and defensive of his gender identity.

16. After disclosing his Gender Dysphoria, Marco was observed to become more at ease within himself and it gave him the confidence to pursue gradual steps towards his transition such as cutting his long hair short; purchasing the male school uniform and wearing a suit to his Year 10 formal at the end of 2014 which his mother opined was a great accomplishment for Marco.

17. While Marco had disclosed his Gender Dysphoria to his family and close friends, he only told the school that he was transgender in June 2015. Marco hated being called by his female name so his disclosure to the school was to ease some of his discomfort. The parents contacted G Support Centre to assist Marco with his transition at school. The staff at the Centre were knowledgeable and guided the process of transition by working with the family and staff at A High School.

18. Friends from Marco’s school organised cupcakes for his “Boy Day”, in July 2015, the date from which everyone at the school would refer to him as ‘Marco’. The father says that Marco’s announcement would not have been unexpected due to Marco’s “male-oriented dress, attitude and social interactions”. The mother says that since he informed his school, Marco has been very calm.

19. On Purple Day, Marco spoke at the school assembly about LGBTI diversity and definitions of terms describing gender identity.

20. Marco’s friends and teachers have been supportive of him during his transition. The mother says that “[Marco] socialises with a group of guys at school who accept him. He also has a few close friends, with whom he sometimes confides in. He does not spend a lot of time with his school friends outside of school hours, but he does use Facebook.” In the last two to three years, Marco has made more friends and has become happier socially.

21. Marco has been contacted by a transgender member of his football team. He has shown great enthusiasm about meeting other young transgender people.

22. In January 2015, Marco and his parents attended upon Dr P, Sexual Health Physician. Dr P explained what Gender Dysphoria is and the aspects of transition including what can be expected from hormonal treatment and gender reassignment surgery. The father says that it gave him the opportunity to challenge Marco’s views about Gender Dysphoria. During the consultation, the father observed that “[Marco] was clearly able to follow all our arguments, provide a coherent account of his feelings in regard to his gender dysphoria and give us his reasons for pursuing his transition. He demonstrated a serious interest in trying to gain an understanding of his feelings by analysing all our propositions.” “My personal conclusion and that of my wife at the end of the consultation was that the gender dysphoria that [Marco] was experiencing was real and required treatment.” Marco disclosed that he had been searching and reviewing stories of people with similar issues to him on the internet. Dr P encouraged this search “as a safe way for looking for accounts of related experiences.”

23. In April 2015, Marco attended upon Dr S, Psychiatrist. Marco was referred to Dr S by Dr P. Marco has had a number of appointments with Dr S since this time. Dr S diagnosed Marco with Gender Dysphoria. He also prescribed Marco with Lovan, an anti-depressant, to minimise his anxiety.

24. In July 2015, Marco’s dose of Lovan was doubled by Dr J, GP at the time of commencing his transition at school.

25. Marco’s first appointment with an endocrinologist was postponed and he was very disappointed. His parents located another endocrinologist, Dr H, who will prescribe testosterone to him. On 22 December 2015 Marco and his parents attended upon Dr H who explained the effects of hormonal treatments on Marco’s developing body, the risks associated with the treatment and the expected outcomes.

26. Marco currently has a “peecock” (an artificial penis) on his Christmas wish list.

PROPOSED TREATMENT AND ITS EFFECTS

1. Dr S, Psychiatrist, is an AHPRA registered medical practitioner and consultant psychiatrist with further qualifications and extensive clinical experience in child and adolescent psychiatry with a sub-speciality interest in gender dysphoria. He interviewed Marco with his parents on 1 April 2015 with additional interviews on 1 May 2015, 15 May 2015, 28 October 2015 and 4 December 2015. The interview on 4 December 2015 included further questions put to Marco’s parents. In his report dated 1 March 2016 he states that Marco fulfils the DSM-5 Criteria for Gender Dysphoria in Adolescents and Adults in that, in his assigned female gender, for a period of greater than six months he:

   a.    Expresses a marked incongruence between his experienced and expressed gender (i.e. male) and his female secondary sex characteristics. [Marco] had always behaved in a more male-typical manner and considered himself to be a boy since childhood. This incongruence was not clearly experienced until the beginning of breast development at around 12 years of age, which has become a source of increasing personal distress and marked dysphoria. His conviction of being male in gender became clear and openly expressed since the onset of menses at 15 years of age. 

   b.    Has a strong desire to be rid of his female secondary sex characteristics because of the [marked] incongruence with his experienced and expressed gender. [Marco] has been wearing a breast binder for more than one and a half years and looks forward to having surgery to remove his breasts and fashion a more masculine chest shape in the future. He told me that he wears underclothing in the shower and cannot bear to look at his breasts due to the severity of his body dysphoria.

   c.    Has a strong desire for the secondary sex characteristics of the other (male) gender. [Marco] wishes to have a male physique, male pattern facial hair and body hair and a deeper voice.

   d.    Expresses a strong desire to be of the other (male) gender, having felt this way since age 15 when he openly disclosed this to his parents and friends.

   e.    Expresses a strong desire to be treated as being of the other (male) gender. [Marco] presents socially in male-typical clothing, a short hairstyle and wears no jewellery or makeup. His spectacles are male in frame style. He makes efforts to flatten and hide his breasts by wearing a binder. He has formally adopted the masculinised first name “[Marco]” and strongly prefers to be referred to using masculine personal pronouns. [Marco] is now regarded as a male at school, wears the male school uniform and insists upon being seen, known and treated as a male by his family, existing and new friends and acquaintances and his teachers.

   f.    Has a strong conviction that he has the typical feelings and reactions of the male gender. [Marco] is a quiet and anxious person by nature and mixes comfortably with other young people of both sexes. He has preferred the company and gender-typical activities of boys since childhood. [Marco] sees himself as being clearly male in nature in terms of his feelings and reactions. 

2. In his report, Dr S explains that the Phase 2 medical treatment for gender dysphoria which Marco is seeking to commence involves the administration of exogenous testosterone. “This is usually given in the form of an intramuscular depot injection every three weeks, but three-monthly depots are also available once treatment is in maintenance phase. He may temporarily require additional hormonal treatment for full suppression of menses. Should the testosterone cause undesired effects such as acne or hair loss, medical treatment of these conditions can be made available to him.”

3. Dr S notes that the likely short and long term physical, social and psychological effects if the procedure is carried out include:

   The proposed treatment will induce development of male secondary sexual characteristics (such as voice deepening, muscle development and growth of facial and body hair over a period of several months) and reduce some female secondary sexual characteristics, primarily in terms of body shape. There may be enlargement of the clitoris, but otherwise no change is anticipated in the structure of his primary internal or external sexual organs.

1. Dr S notes the following risks associated with the treatment:

   42.1.Physical risks: “premature fusion of epiphyses, thus limiting height; acne; male pattern baldness; elevated HDL cholesterol; renal dysfunction; hepatic dysfunction; weight gain.”

   42.2.Social risks: “rejection by members of the extended family, friends and casual acquaintances; discrimination at school, in public and in the workplace; harassment and abuse, including physical attack and rape, as he may be perceived as a target and an object of hatred by some transphobic people.”

   42.3.Psychological risks: “the stress of passing as a person of male gender while still in the process of transitioning; adjustments to his sense of identity as his body changes; recurrence of mood disorder due to the hormonal therapy.”

2. Dr H, Endocrinologist, has been practicing medicine for more than 28 years and more than two thirds of his clinical load are transgender patients. His report dated 10 February 2016 is based on an assessment of Marco conducted on 22 December 2015 when his parents were in attendance. He says that “[Marco] gives a typical history of gender dysphoria of longstanding duration and identifies as transgender.”

3. In his report, Dr H states that last year Marco was commenced on Levlen, a continuous combined oral contraceptive pill, to suppress his menstruation which he was finding very distressing. He explains that “Phase 2 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 (Primoteston) 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.” He says that the treatment will “ameliorate the dysphoria accompanying [Marco’s] gender incongruence to bring about physical changes that will allow [Marco] to live according to his preferred gender and reach his full life’s potential.”

4. Dr H states that the likely short and long term effects of the treatment include:

   45.1.“Individuals with gender dysphoria who commence cross sex hormone therapy generally report improvements in psychological wellbeing. An affirmation of their gender identity coupled with improvements in mood and anxiety levels typically results in improved social outcomes in both personal and work lives.”

   45.2.“The physical changes are those of masculinisation. On the positive side testosterone therapy typically results in increased muscle strength, stamina and energy levels. On the negative side, there can be problems with acne and male pattern balding. The accompanying manifestations of increased body hair and deepening of the voice are generally considered positive by transgender individuals in this setting. Adverse medical outcomes such as liver dysfunction, hypertension and polycythaemia are uncommon, particularly in this age group.”

THE CHILD’S CAPACITY TO MAKE AN INFORMED DECISION

1. Both Marco’s parents and his sisters are very supportive of his transition.

2. The mother describes Marco as a “very decisive person. When he makes a decision he sticks with it. He may discuss the options with us before coming to a decision, but once he’s decided upon a course of action it’s full steam ahead.” She cites his decision to come out as transgender at school and the proactive steps he took to facilitate this process with advice from the G Support Centre as an example. The mother says that Marco is looking forward to beginning hormone replacement therapy and is seriously considering surgery options including breast removal but not before he is 18 years old. She says:

   [Marco] understands that testosterone is just one aspect of his transition to male, and it is not a complete fix to his gender dysphoria. He looks forward to being on testosterone as this will give him a deeper voice, facial and body hair, muscle growth and fat re-distribution along a typically male form, changed hair line and a masculine-looking jaw and facial bone structure. He knows the risks of HRT, such as an increased cardiovascular risk and male-pattern baldness. To which he says that he “would rather be a bald man than a dead woman.” [Marco] is certain about beginning hormone therapy. He is also seriously considering breast removal surgery. [Marco] hopes to be seen and accepted as male by society. He has an interest in social justice and may advocate for justice and fair treatment for the disadvantaged in society. He would also like to pursue his art.

3. The father says that “[Marco’s] position on his gender identity comes from his true feelings of disconnect between his female anatomy and male gender identity.” When the father approached Marco with his concern that he does not have enough life experience to be confident about his gender identity, and that he might still be confused, Marco reassured him “about his confidence in his male gender identity.” The father has “found [Marco’s] reasoning and decision-making process to be very sound in terms of identifying a problem such as his gender dysphoria and being able to look for and follow through with solutions to the problem. He has displayed great courage in telling us, his teachers and peers about his gender identity.” He says that in Marco’s life experience thus far, he is “confident that [Marco] has analysed as many issues as we could think of posing to him for analysis. We have done this in the presence of counsellors, doctors, psychologists, psychiatrists and now endocrinologists.”

4. In his report, Dr S notes that “[Marco] is free to the greatest extent possible from temporary factors that could impair his judgment in providing consent to the procedure.” He states that in his interviews with Marco, he has demonstrated the following:

   49.1.He is able to comprehend and retain both existing and new information regarding the proposed treatment, as demonstrated in discussions about the proposed treatment.

   49.2.He is able to provide a full explanation, in terms appropriate to his level of maturity and education, of the nature of Phase 2 treatment, as being a virtually lifelong course of testosterone usually administered by regular intramuscular injection, but possibly also given in other ways such as gel.

   49.3.He is able to describe the advantages of Phase 2 treatment in terms of describing the physical induction of male secondary sexual characteristics, its consequent beneficial effect on his sense of mismatch between his socially assigned sex and gender and his experienced and expressed gender, and facilitation of social acceptance as a male.

   49.4.He is able to describe the disadvantages of Phase 2 treatment in terms of a knowledge of the potential medical and psychological adverse effects of testosterone, the discomfort of injections, and the inconvenience and expense of embarking on a potentially lifelong course of medical treatment.

   49.5.He is 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. Marco has an adequate appreciation of the advantages and disadvantages of the treatment. He is strongly of the opinion that for him, the risks and disadvantages are far outweighed by the advantages.

   49.6.He is able to understand that Phase 2 treatment will not necessarily address all of the psychological and social difficulties that he had before the commencement of treatment and is willing to continue to access support and treatment as necessary in this regard. This has been demonstrated already through my period of assessment and treatment.

5. In his report, Dr H states that there is “no evidence or history of a psychiatric or psychological disorder influencing [Marco’s] desire and decision to undergo treatment with masculinising hormones. Similarly, [Marco] has no history of substance abuse affecting his judgment.” He notes, “[Marco] has been living full time as a male since the third term of school last year and is known as such by his peers and family. He has already officially changed his Christian name. Both of [Marco’s] parents…are fully supportive of [Marco’s] wish to transition to take masculinising hormones.” Dr H further notes that Marco is aware that he would not require the court’s consent to his treatment when he turns 18 in mid-2016. However, Marco is not willing to delay the treatment any further.

6. Dr H provides:

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

7. I am satisfied that Marco is competent to understand the positive and negative features of the proposed treatment and has the capacity to make an informed decision about that treatment.

THE CHILD’S WELFARE

1. Marco’s parents believe that the treatment is the “best course of action for [Marco’s] wellbeing”.

2. The mother says that “[Marco] feels confident that he passes more as male, and has done so for at least a year. But things are not always smooth. There are the occasional bouts of frustration with his general appearance – sometimes [Marco] jokingly says he looks like a 12 year-old male who has yet to undergo puberty. These bouts of dysphoria over his body image have sometimes been accompanied with self-harm, such as cutting his wrists. His doctor increased his dose of anti-depressant to deal with this problem.” She explains that while Marco has been calm since disclosing his Gender Dysphoria, he “has been feeling restless lately, perhaps due to his eagerness to begin testosterone. He also experiences frequent headaches, probably due to this stress or the contraceptive pill (which he takes to stop menstruation.)”

3. The father says:

   [Marco] has increasingly experienced anxiety from not been able to take hormones to begin his medical gender transition. This anxiety has manifested itself in the last three weeks in [Marco] having mild panic attacks and feelings of insecurity when attending school. [Marco] longs to do things without having to compromise his new identity as a transgender male. His bodily changes are going against his social transition and identity as male.

4. The father also notes that Marco has gained weight recently and believes that Marco may be “resorting to excessive eating as a mechanism of coping with his anxiety.” He is “concerned about the possible health ramifications of developing eating disorders as a result of the anxiety he is currently feeling. [He is] also concerned about the impact that [Marco’s] anxiety could have on his school performance, and the compounding effect of poor results at school on his morale. [He] would like to see his anxiety diminish by his commencement of hormonal treatment which would bring physical changes complementary to his social transition and provide him with reassurance that this transition is being taken seriously and is not seen as something that we are simply supporting with words rather than concrete action.” He believes that allowing Marco to commence hormonal treatment is an important step towards improving Marco’s mental and physical health. He believes that any delays would be detrimental to his health. In retrospect, he comments that he wished he knew about Marco’s Gender Dysphoria earlier so that he could have started the process earlier. The father says that the treatment is necessary to “alleviate the gender dysphoria that [Marco] is experiencing. [Marco] feels uncomfortable to the point of hating his aspects of his anatomy that do not conform to his male identity. [Marco] has mentioned that he would look at top surgery in the future. Full gender reassignment is something that at the moment he is not considering without further evaluation at an older age. [The father has] emphasised the advantages of his position to him, particularly from the point of view of fertility preservation which is as much a factor in same sex relationships as it is in other types of relationships. [Marco] aspires to have a normal life in which his gender identity is not an issue and to live in a society in which he can exercise all his rights and responsibilities as an individual and a citizen.” The father also expressed his concerns about the potential for Marco to be discriminated against and harassed to which Marco responded that he was “concerned more with the fundamental question of how he would most likely find happiness in his life and with himself.”

5. The father says that after meeting with Dr H on 22 December 2015, he understands that while there are risks associated with the treatment, the alternative of Marco living without being able to transition “or having to wait for lengthy medical and legal processes to basically start a normal life are potentially very problematic.” Further, the father has also been told by a counsellor whom Marco has attended upon “that the proportion of regrets about transitioning is much smaller than the proportion of mortality attributable to the inability to make the transition. In other words, the risks of regret are not as high as the risk of death.” The father has observed Marco’s increased anxiety and some of the negative ramifications of waiting for his transition. The father supports Marco’s transition and wants to minimise Marco’s negative feelings and for the parents’ “actions in front of the law to reflect our unequivocal support for the new identity that he discovered within and whom he now calls [Marco].”

6. In his report, Dr S notes that in the interview, Marco “consistently expressed his personal distress due to experiencing a disjunction between his female assigned gender and his male experienced gender. He has been depressed, had suicidal thoughts and has physically harmed himself in the past, and is currently both depressed and distressed about his gender dysphoria. It is my judgment that the depression is dependent of but exacerbated by his gender dysphoria, and will be at least to some extent relieved by [Marco] being enabled to experience the masculinisation of his body. [Marco’s] social functioning is to some extent hampered by his co-existing autism spectrum traits, but once again the anxiety about being seen, treated and accepted as a male is proving a significant additional barrier to his late adolescent social development.”

7. Dr S states that the procedure is necessary for Marco’s welfare because it will:

   enhance [Marco’s] self-esteem and reduce the incongruence between his assigned gender and his experienced and expressed gender. This is very likely to alleviate vulnerability to ongoing depression, dysphoria and self-loathing of his body as the masculinisation proceeds. It will also make it much easier for him to be perceived and treated as a male by others, unless he chooses to disclose his transgender status, thus reducing the significant social dysphoria and anxiety around not “passing” as a person of male gender.

8. Dr S also explains that if the procedure is not carried, or is postponed until Marco turns 18, the likely psychological effect of the delay in treatment would be a:       

   prolongation of [Marco’s] dysphoric state with attendance risks of recurrence of depression and deliberate self harm, especially as the academic stresses inherent in proceeding on to Year 12 increase. Socially, it will pose an obstacle to [Marco’s] ability to pass as a male amongst her new close friendship and intimate partnerships due to inner conflicts and self-loathing. He may therefore choose to defer post-secondary studies and this will lead to further social and financial impairment. [Marco’s] mild autism spectrum traits include a tendency to rigidity of thinking, so that for him the perceived social invalidation of this gender identity is felt as a great injustice and a more significant stressor than would be the case for many other young gender dysphoric persons of similar age. Given his history of anxiety and recurrent depressive episodes, the risks to his mental health would be profound if the Phase 2 treatment was unduly delayed for him.

9. In his report, Dr H explains that the treatment is necessary for Marco’s welfare as “psychiatric disorders including anxiety and depression, along with self-harm and suicide are more common in the transgender community than in the general population. The frequency of psychopathology is lower in transgender individuals who are receiving hormone therapy when compared with those who are not.”

10. Dr H also notes that if the treatment is not carried out, “a potential scenario is…for individuals to obtain illicit drugs which are common place in gymnasiums. These preparations are unregulated with no guarantee regarding their efficacy or safety. 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.”

CONFIDENTIALITY

1. It is appropriate to make orders for confidentiality and restrictions on persons who shall be permitted to search the court file, as sought.

CONCLUSION

1. Having regard to all of the matters referred to, I am satisfied that Marco is Gillick competent, given that he has sufficient understanding and intelligence to enable him to understand fully what is proposed by stage 2 hormonal treatment. It follows that I shall make a finding that Marco is Gillick competent to consent to stage 2 hormonal treatment for Gender Dysphoria

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 March 2016

Associate: 

Date:  30.3.2016