Re: Rae
[2017] FamCA 958
•23 November 2017
FAMILY COURT OF AUSTRALIA
| RE: RAE | [2017] FamCA 958 |
| FAMILY LAW – CHILDREN – Medical Procedure – Gender Dysphoria – Where the applicants are the parents of a child who has been assessed as having Gender Dysphoria – Where the applicants seek permission to consent to phase 2 cross-hormone treatment on the child’s behalf – Where court considered the proposed treatment to be in child’s best interests – Where court ordered that the applicants be authorised to consent to treatment on the child’s behalf. |
| Family Law Act 1975 (Cth) |
| Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175 Re Alex [2009] FamCA 1292 (2009) 42 Fam LR 645 Gillick v West Norfold and Wisbech A.H.A. [1986] A.C. 112 Re: Jamie[2013] FamCAFC 110; (2013) FLC 93-547 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218 |
| FIRST APPLICANT: | The Father |
| SECOND APPLICANT: | The Mother |
By Court Order File Number is suppressed
| DATE DELIVERED: | 23 November 2017 |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 25 October 2017 |
REPRESENTATION
By Court Order the names of Solicitors have been suppressed
Order
The Father and The Mother shall be authorised to consent to treatment on behalf of their child Rae born … 2000 under the guidance of Rae’s treating medical practitioner(s) for the administration of oestrogen in such a dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to induce female puberty.
The full name of Rae, 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were initiated, the name of Rae’s mother and father and any other fact or matter which may identify Rae shall not be published in any way save as permitted by this order or further order of this Court.
Only anonymised reasons for judgment and order (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.
That Rae be at liberty to identify herself as the subject of this application and as the child the subject of this decision if she may chose.
To the extent that the exception provided for in s 121(9) of the Family Law Act 1975 (Cth) does not otherwise authorise it, the mother and father and Rae have leave to publish to Rae’s treating health practitioners (including by inserting a copy of the orders on Rae’s medical record) a copy of these orders which are not anonymised.
Each of the parties to these proceedings and Rae shall be at liberty to obtain a full copy of the orders and any reasons for judgment published with all of the identifying details.
No person be permitted to search the court file in this matter without first obtaining 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: Rae 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 |
| The Father |
First Applicant
And
| The Mother |
Second Applicant
REASONS FOR JUDGMENT
This is an application by the Father and the Mother for permission to consent to phase 2 cross-hormone treatment for their child, Rae, who has been assessed by two psychiatrists and an endocrinologist as having Gender Dysphoria i.e. a marked incongruence between one’s experienced/expressed gender and assigned gender.
Rae was born biologically male … 2000. Rae’s name at birth was Teresa but she has been known as Rae since 2012 and has also been referred to by the female pronoun since about September 2015. Rae’s parents formally changed her name to Rae on her birth certificate on 16 February 2016.
why is the application necessary?
As the law currently stands,[1] the proposed ‘treatment’ is not something to which Rae’s parents are able to consent and unless Rae is assessed to be Gillick[2] competent to consent to the treatment herself,[3] the treatment is a medical procedure requiring authorisation from the Court.[4] This is so because the proposed treatment is not considered ‘therapeutic’[5] i.e. “to cure a disease or correct some malfunction” and because of “firstly, the significant risk of making a wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave”.[6]
[1] The decision in a case stated to the Full Court in Re Kelvin (see below) is reserved
[2]Gillick v West Norfold and Wisbech A.H.A. [1986] A.C. 112
[3] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218, Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175; Re Alex [2009] (2009) 42 Fam LR 645; Re Jamie[2013] FamCAFC 110; (2013) FLC 93-547
[4] Re Jamie ibid cf Re Kelvin [2017] FamCA 78 where Watts J has stated a case to the Full Court asking inter alia whether the Full Court confirms its decision in Re Jamie
[5]Marion’s case ibid per Brennan J and Re Jamie ibid per Bryant CJ
[6] Marion’s case ibid
Rae’s parents have not sought an assessment by this Court as to Rae’s competency to consent to the treatment for herself but rather for permission to consent to that treatment on her behalf, given that she is still a minor. No explanation was offered for failing to seek an assessment of Rae’s competency (which is a factual determination for the Court) but I note that the medical practitioners providing support and treatment to Rae do not consider that she has the capacity to fully understand the potential risks of the proposed treatment. The medical professionals involved in Rae’s treatment and support consider the proposed Phase 2 treatment to be in Rae’s best interests.
The State Department was served with the application as required by Rule 14.10 of the Family Law Rules 2004 (Cth) (“the Rules”). Their response included the following:
Given the detailed expert information already filed, the allied professional assistance accessed by the family to date, and the absence of any other relevant information held by this department, we have formed the view we would not be able to assist the Court further in this case. Accordingly we do not intend to appear before the Court and make submissions in regard to the application, …
jurisdiction
Rae is a child of a marriage and the Court has a general welfare jurisdiction pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”) which provides:
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
relevant facts about Rae
I have received information about Rae from the following sources:
a)Rae herself, leave being granted for her to provide an affidavit;
b)Rae’s parents;
c)Doctor T, psychiatrist;
d)Professor M, consultant endocrinologist;
e)Doctor P, psychiatrist.
Rae describes first becoming aware of having a preference to being female at about age three. After years of feeling as though she had to supress her feelings from her family and others she now feels great relief at just being able to live her life as she believes she should be able to i.e. as a female.
Rae’s parents were married in 1995 and divorced in 2013. They have another child, Patricia, who is three years older than Rae.
The Mother describes Rae and Patricia as highly intelligent children. Rae generally preferred female company growing up. Rae was bullied at her primary school in years five to seven and became very unhappy, angry and physically aggressive. In June 2012 Rae was diagnosed with Asperger’s syndrome and prescribed medication to assist with her condition. It seems a number of medications were trialled but eventually ceased due to them being either ineffectual or causing side effects.
As is apparently not uncommon in people with Asperger’s, Rae has a significant interest in computers and in particular online games and communication. Rae describes always choosing female avatars and communicating in online forums as female. She had to hide that from her family for many years.
The Mother describes that when Rae was growing up she never liked to have her hair cut and had difficulties with personal hygiene and toileting. She despised her genitalia.
In April 2015 Rae disclosed to the Mother that she felt as though she had been born in the wrong body. The Mother supports Rae’s wish to live her life as a female.
The Father describes noticing that from about age twelve Rae appeared very unhappy and reclusive. He says he felt as though his child was fading away. Rae hated having her photograph taken and would become teary and distressed at the prospect.
In 2015 the Father discovered Rae exploring the topic of Gender Dysphoria on the internet. Rae informed her father that she did not feel like a male. The Father arranged for Rae to speak to a transgender male who was a close friend of the Father, and after doing some research the Father took Rae to a consultation with a general practitioner with some experience in this area. Doctor E referred Rae to Dr P. The Mother, the Father and Rae met with Dr P who diagnosed Rae as having Gender Dysphoria. On further referral Rae and her parents consulted with Dr T and Professor M.
Rae commenced Phase 1 treatment IM Depot Lucrin 22.5mg (pubertal suppression) on 16 September 2015.
Rae also consulted with a psychologist, Ms S. The Father and the Mother depose to observing an improvement in Rae’s confidence, self-esteem and mood since Phase 1 treatment commenced.
Rae, the Mother and the Father depose to being aware that with the proposed Phase 2 treatment Rae will develop female characteristics which will be partly irreversible (without surgery). They are aware of a number of potential serious health risks with the treatment and that Rae might even change her mind about becoming female and be unable to revert to a male appearance. The Mother, in particular, is satisfied that Rae is absolutely sure that she will not change her mind.
The Mother and the Father are more concerned that a failure to provide Phase 2 treatment will result in spiralling depression, self-harm or potentially suicide particularly given Rae’s history of depression and anxiety.
The Mother and the Father consider the proposed treatment to be in Rae’s best interests.
Doctor P
Doctor P has over twenty-five years’ experience in general child psychiatry and over the last ten years has taken a particular interest in the assessment of people experiencing Gender Dysphoria. He has read and worked extensively in this area. Doctor P first saw Rae on 1 April 2015 at the request of Dr E for a second opinion to ‘support puberty blockade’.
Rae reported a long history of wanting to be a girl. As she was progressing through puberty at the time, Dr P observed Rae becoming increasingly distressed and uncomfortable with the male changes happening to her body. Doctor P does not reveal his opinion at that time but refers to Dr E organising an urgent assessment for Rae at the Z Hospital where she was seen by Dr T and Professor M and commenced on Lucrin to block puberty.
Doctor P reviewed Rae on 9 August 2017. He was informed by Rae that she was achieving solid academic results and planning on working full time in 2018 to save money for sex reassignment surgery which she wishes to proceed with as soon as she turns eighteen. Rae reported that her transition, while slow, is going well and that she had continued on three monthly Lucrin injections and had regular contact with professionals at X Hospital.
Rae reported being totally accepted by the school community but continues to be self-conscious about the “bump” in her groin area, which restricts the clothes she would choose to wear if she were able e.g. dresses. She denied negative thoughts about her genitals but was nevertheless looking forward to their removal. While Rae has friends at school, most of her friendships occur online as she plays games competitively for several hours each day, often in teams. Rae recently had a relationship with a boy of a similar age which lasted a couple of months. She reports feeling more comfortable and happy within herself over the last two years.
In Dr P’s opinion, Rae satisfies the DSM 5 diagnostic criteria for Gender Dysphoria. Rae’s comorbid diagnosis of Asperger’s Disorder does not appear to be limiting her in any real respect. Indeed the symptoms are noted to have reduced as Rae has become more confident and attained more effective social skills. There was no evidence of anxiety, mood disorder or psychosis and Rae presented as well-adjusted with good coping mechanisms.
Rae impressed Dr P with her knowledge of the proposed Phase 2 treatment including risks. In his view, if Rae is unable to undertake the proposed treatment, Rae’s “psychological health and well-being is highly likely to decline with increasing levels of anger and frustration occupying her cognition. This could lead to increasing levels of anxiety and/or depression.” In Dr P’s view, “repeated studies and research have demonstrated that the most beneficial intervention for young people with Gender Dysphoria is to begin physical medical transition to change their gender to match their sense of self.” Unfortunately, Dr P does not disclose the studies and research to which he is referring.
Doctor P sees no reason to delay the treatment until Rae turns eighteen given the consistent views expressed by Rae throughout her childhood, spoke positively of the prospect of developing breasts, has a number of friends online and at school who are transitioning and is well informed of the physical and social complexities of transition.
Finally Dr P opines:
It is my opinion that it is in Rae’s best interests, psychologically, to commence Phase 2 of the medical gender transition process. There is no reason to delay treatment. It is highly unlikely that Rae will change her mind in relation to her expressed gender and further delay will only lead to [12] months of physical discomfort, social anxiety, depression, frustration and anger.
Doctor T
Doctor T is a child psychiatrist engaged full time as a consultant at the X Hospital (and prior to that the Y Hospital) since 2002. He is also the medical director of the D Service. He deposes to having seen “a number” of children suffering from gender dysphoria, some of whom meet the DSM-5 criteria of Gender Dysphoria.
Doctor T initially assessed Rae on 30 April 2015 and has since reviewed her three monthly since she commenced Phase 1 treatment in September 2015 although the last consultation was 16 March 2017. In the course of consultations, Dr T has also spoken to Rae’s parents separately and together. In his view the history provided by Rae and her parents “closely corroborated, with no significant discrepancies or gaps reported.”
In his view, Rae’s diagnosis of Gender Dysphoria is complicated by a diagnosis of Autistic Spectrum Disorder (ASD) specifically Asperger syndrome. “ Rae’s symptoms of ASD are characterised by difficulties interacting and communicating with others, a poor understanding of social cues, and a number of fixed and narrow interests, including a fascination with online gaming.” Rae reported a prior history of depression and anxiety and of psychotropic medication although ceased prior to Dr T’ involvement. Rae had received psychological assistance with her ASD and general support and reported a significant reduction in symptoms of anxiety and depression over the last couple of years. Rae felt supported in her school environment and her online friendships only knew her as female.
Rae disclosed a concern about her male secondary sex characteristics and genitalia and stated that she disliked her genitalia and said she averted her gaze when naked. She did not report any self-harming or genital mutilating ideations. As puberty approached Rae reported feeling increasingly distressed about changes and expected changes such as her voice breaking and described the prospect as ‘horrible’. Initially Rae denied any desire for surgical reassignment although since starting on Phase 1 treatment she has now stated her strong drive to progress to a complete transition.
At the first consultation in April 2015 Dr T noted that Rae presented as a thin, androgynous female with no facial hair or other observable male secondary sex characteristics. She was assessed as having average intelligence and reasonable verbal skills. Her identification as female was apparent and she fulfilled the diagnostic criteria for Gender Dysphoria. “Despite a premorbid diagnosis of ASD and a previous history of anxiety and depression, there was no clinical evidence of other comorbid significant or pervasive mental health symptoms.”
Importantly, Dr T has found no evidence of cultural or personal advantage for this cross-gender identification.
Doctor T noted that young people with ASD are over-represented in the cohort of young people who also have gender dysphoria. However, in Rae’s case –
… her gender-variant or gender-expansive behaviours were present since early childhood and there has been no change over time. Indeed they have strengthened. In my experience with children with ASD, they certainly do have fixed and narrow interests, but they tend to change over time and they are not as consistent and ingrained as Rae’s identity as a female. In other words, I believe her identity is fixed and is very unlikely to change, which is reflective of her Gender Dysphoria rather than a fixed interest which may be related to her ASD.
As to the possible influence on Rae of her online relationships and school friends who are ‘transitioning’, Dr T said that he would have been concerned about that but for Rae’s longitudinal identification as female. This is not a case where Rae has suddenly expressed a wish to identify as female.
In his view Phase 2 treatment is in Rae’s best interests given the ongoing nature of her Gender Dysphoria which he considers is unlikely to desist. Dr T opines:
62. Given the improvement in Rae’s mental health issues since she began living and being accepted as a female, it is my view that hormone treatment with oestrogen will reduce the risk of future mental health problems.
…
64. In my opinion, if oestrogen treatment is not provided to Rae, she is likely to continue to experience ongoing gender dysphoria with its associated mental health issues, such as a significant risk of low mood, anxiety, social isolation, suicidal and self-harming behaviours.
65. There is also a theoretical risk that given her interest in the internet, Rae would use this knowledge to acquire oestrogen (i.e. hormone treatment obtained illicitly via the internet or by other means), which is not regulated by specialists with expertise in the treatment of Gender Dysphoria. This would pose a danger to Rae’s health.
In relation to the associated risk of the proposed treatment Dr T opines:
66. Treatment with oestrogen is known (sic) cause affective lability (characterised by mood swings and low mood).
67. In my view, these theoretical risks can be reduced through ongoing psychoeducation and psychological support and therapy aimed at managing behavioural outbursts and mood swings.
68. Given the lack of current mental health issues, it is my view that the behavioural risks of the proposed treatment are not such to outweigh the likely benefits of treatment.
Doctor T is of the view that Phase 2 treatment is likely to reduce the short and long term risks of psychiatric co-morbidity and mental health problems associated with Gender Dysphoria.
While confident that Rae has fully participated in the decision to commence the proposed treatment, Dr T remains uncertain whether Rae fully understands the potential long terms risks associated with the proposed treatment particularly given that some possible effects may not manifest for years or even decades.
Professor M
Professor M is a well-qualified and highly experienced endocrinologist currently working as a Consultant Endocrinologist at the X Hospital. She has seen “a number” of children and adolescents who meet the DSM-5 criteria for Gender Dysphoria and first met Rae with her parents on 27 May 2015.
Rae’s physical examination was consistent with a normal adolescent male. Medical investigations revealed no endocrine or genetic reason to explain Rae’s gender dysphoria. Rae commenced Phase 1 treatment IM Depot Lucrin 22.5 mg to supress male pubertal development on 16 September 2015 and has continued with the treatment since that time. There have been no problems with the treatment.
According to Professor M treatment with oestrogen (Phase 2 treatment) will induce irreversible physical changes for Rae.
24. … Oestrogen will bring about redistribution of body fat, decrease in muscle mass and strength, softening of skin and decreased oiliness, breast growth, decreased libido and erections, male sexual dysfunction, decreased testicular volume, decreased sperm production and decreased sexual hair growth.
25. There is likely to be a long term adverse effect on fertility with a reduction in testicular size and sperm production.
…
As to the likely long-term physical, social and psychological effects on Rae if the proposed treatment is not provided, Professor M deposes:
…
28. Although it would be feasible for Rae to remain on Phase 1 treatment alone until she is 18 years, Rae would experience considerable mental distress. She has already become distressed and wishes to proceed to cross hormone treatment for feminisation as soon approval is obtained.
29. There is a risk that Rae may illicitly source oestrogen products and self-administer these without appropriate baseline screening and ongoing surveillance for side effects. This could result in significant adverse physical effects for Rae.
30. There would also likely be adverse psychological sequelae if Rae does not receive treatment.
There are a number of known risks with the proposed treatment:
…
32. The most serious risk is of venous thromboembolism (blood clots).
33. Other risks include gallstones, abnormal liver function tests, weight gain, high blood triglyceride levels, cardiovascular disease, hypertension, hyperprolactinaemia or prolactinoma, type 2 diabetes and breast cancer.
34. Lifestyle measures (exercise, healthy weight range and avoidance of smoking) would help to minimise these risks.
Professor M opines that given the significant ongoing nature of Rae’s Gender Dysphoria it is unlikely that she will change her mind and accordingly suggests that it is her view the proposed treatment is in Rae’s best interests.
While Rae is said to have an understanding of the risks of Phase 2 treatment and has expressed clear views to commence Phase 2 treatment, Professor M does not consider that Rae has the capacity to fully understand the lifelong irreversible and potentially life threatening consequences of Phase 2 treatment.
other evidence
As the task of the court is to consider whether the proposed treatment is in Rae’s best interests it is important for the Court to be as well informed as possible about the potential consequences for Rae. At the instigation of the Court but with the consent of the applicants an article by Professor Whitehall was received into evidence (‘The Family Court must protect Gender-Dysphoric children’). The article does not appear in a peer reviewed medical journal but in a social/political commentary magazine called ‘Quadrant’ and it is fair to say that the article contains what might best be described as Professor Whitehall’s personal opinions including the suggestion that the alleged “phenomenal increase” in the number of children presenting with Gender Dysphoria “has features of a behavioural fad.”
Professor Whitehall raises a number of potential risks with Phase 2 treatment (and indeed with Phase 1 treatment) which were not specifically addressed in any of the affidavits before me. In addition Professor Whitehall anecdotally refers to one psychiatrist who claims there is an absence of forensic data to support the incidence of self-harm among transgender children is any greater than somewhere between infrequent and rare. Professor Whitehall acknowledges, though data is limited, that such children run a higher risk of suicide when compared to children not receiving psychological or psychiatric care. He suggests that “whereas there is no substantive evidence that the medical pathway reduces self-harm and suicide, avoidance of such treatment may be the best way to prevent it.” Professor Whitehall refers to studies suggesting that Phase 1 treatment may have a detrimental impact on brain function and on the nervous system. As to Phase 2 treatment Professor Whitehall refers to some studies suggesting the effects of cross-sex hormones found a reduction in brain “ten times the average annual decrease in healthy adults” after only four months. A 2016 review is referenced as warning - “long-term clinical studies are yet to be published … risks may become more apparent as the duration of hormone exposure increases.”
The applicants provided a copy of Professor Whitehall’s article to Dr T and Professor M who each provided further evidence: Dr T orally and Professor M by the provision of a further affidavit.
Doctor T and Professor M informed the Court that a new version of the Endocrine Treatment of Gender Dysphoric/Gender incongruent Persons: An Endocrine Society Clinical Practice Guideline had been published in September 2017 and Professor M annexed a copy of the new Guideline to her further affidavit. The Guideline is co-sponsored by the American Association of Clinical Endocrinologists, American Society of Andrology, European Society for Paediatric Endocrinology, European Society of Endocrinology, Paediatric Endocrine Society and World Professional Association for Transgender Health. The previous version was published in 2009.
The Guidelines state:
Evidence: This evidence based guideline was developed using the Grading of Recommendations, Assessment, Development, and Evaluation approach to describe the strength of recommendations and the quality of evidence. The task force commissioned two systematic reviews and used the best available evidence from other published systematic reviews and individual studies.
The Guideline is a comprehensive document that includes 266 separate references. It certainly could not be criticised for encouraging any ‘fad’ in the area of Gender Dysphoria or gender incongruence. It is a document that recommends caution at every stage and acknowledges the limited nature of long term studies of effects of both Phase 1 and Phase 2 treatment. It recommends against the use of puberty blocking and gender affirming hormone treatment in pre-pubertal children with GD/gender incongruence. Importantly, the guideline notes that:
In most children diagnosed with GD/gender incongruence, it did not persist into adolescence…. If children have completely socially transitioned, they may have great difficulty in returning to the original gender role upon entering puberty. …
At the present time, clinical experience suggests that persistence of GD/gender incongruence can only be reliably assessed after the first signs of puberty.
…
… for many adolescents with GD/gender incongruence, the pubertal physical changes are unbearable.
…
Pubertal suppression can expand the diagnostic phase by a long period, giving the subject more time to explore options and to live in the experienced gender before making a decision to proceed with gender-affirming sex hormone treatments and/or surgery, some of which is irreversible.
…
Looking like a man or woman when living as the opposite sex creates difficult barriers with enormous life-long disadvantages.
(footnotes omitted)
The Guideline recommends the multi-disciplinary assessment of children/adolescents/adults presenting with gender dysphoria/gender incongruence. In cases where it is medically and psychiatrically indicated the Guideline states that those persons require “a safe and effective hormone regimen.” As both Dr T and Professor M explain, the reference to ‘safe’ in the context must be understood in a medical framework which involves the assessment and balancing of risks. In my view it is unfortunate that the term ‘safe’ is used in such a document which will be relied upon by the lay person and medical profession alike. In his oral evidence Dr T said:
… when we talk about safety in relation to medical treatment – no medical treatment is safe in relation to the fact that it would have no potential side effects or consequences. Safety in medical treatment is – always assume that there will be some type of consequences, but these should be best managed within a medical environment where there is constant ongoing follow-up by an appropriate medical practitioner who would be able to manage in a timely and appropriate manner any side effects, if they arise.
Doctor T pointed out that the use of cross-hormone treatments in transgender adults has been in use for decades and he is unaware of any reports of significant brain changes resulting in cognitive of emotional deficits.
In relation to the suggestion by Professor Whitehall that Phase 1 treatment has a detrimental impact on brain function, Professor M refers to an article published by Mahfouda et al in the Lancet in October 2017 reviewing research studies examining the effect (if any) of GnRH agonist treatment (Phase 1 treatment) on cognitive development. The paper reports a study by Staphorsius et al (reference 107 in the 2017 guideline) where a novel functional MRI was used to study executive function in GnRH treated transgender young people and untreated transgender controls. There was no evidence of effect on GnRH treatment on executive function/cognition nor any suggestion that GnRH treatment intensified gender incongruence.
Professor M refers to a publication referenced by Professor Whitehall, namely, Hough et al titled ‘Spatial memory is impaired by peripubertal GnRH agonist treatment and testosterone replacement in sheep’ and notes that there is significant controversy within the scientific community regarding the relevance of findings in animals and the ability to translate this to humans or predict a similar effect. In particular, Professor M refers to Shanks et al, ‘Are animal models predictive for humans?’ Philosophy, Ethics and Humanities in Medicine (2009) and Wall and Shani, ‘Are animal models as good as we think?’ Theriogenology (2008) and includes this quote:
The vast majority of animals used as models are used in biomedical preclinical trials. The predictive value of those animal studies is carefully monitored, thus providing an ideal dataset for evaluating the efficacy of animal models. On average, the extrapolated results from studies using tens of millions of animals fail to accurately predict human responses … We conclude that it is probably safer to use animal models to develop speculations, rather than using them to extrapolate.
In relation to Phase 2 treatment Professor M concedes that there is limited longitudinal information available on the changes to the brain of transgender individuals who have undergone long term cross hormone treatment. However, Professor M says that it is “well known and accepted that sex steroids have significant prenatal and postnatal effects on the human brain and cognition” as evidenced by Auyeung et al, ‘Prenatal and postnatal hormone effects on the human brain and cognition’ (2013). The authors of that paper suggest that the effects of both prenatal and postnatal exposure to hormones in children and young adults are found to be “both time and dose dependent, with exposure to abnormal hormone levels having a limited impact outside the ‘critical window’ in development.” A number of the studies referred to involve animals and the experiments conducted show “that hormones are essential to the sexual differentiation of both the body and the brain.”
Professor M opines that the effect of cross hormone treatment on the human brain “is an expected part of the physical, psychosocial and emotional changes that occur as a result of cross hormone treatment.” In her view it is incorrect to refer to the changes as ‘side effects’. Professor M states that it is not surprising that advanced cerebral imaging is beginning to document subtle brain changes resulting from cross hormone sex steroid treatment as outlined in the studies referred to by Professor Whitehall footnoted at 73, 74 and 75 in his article.
Professor M accepts that further possible risks of treatment may be identified as treatments are used, which she says is true of all treatments in medicine, but that the practice of medicine must proceed on the basis of the best available clinical evidence at the time. The best evidence as to appropriate treatment is that endorsed by the evidence-based 2017 Guideline endorsed by the peak expert bodies in the area. She confirms her opinion that the proposed Phase 2 treatment is in Rae’s best interests despite the risks.
Ultimately, as Professor M opines the decision is one of balancing the risks and benefits:
30. The safety of any course of medical treatment always involves balancing the known risks of treatment with the risks of not offering treatment. In the case of transgender young people, the known risks of treatment can be mitigated by careful surveillance and medical follow-up as outlined in the 2017 Guideline. The risk of not providing appropriately supervised medical treatment is the risk of self harm including suicide attempts and the risk of medically dangerous illicit self medication. I have personally seen the sourcing of illicit self medication occur amongst the young transgender population attending our gender clinic. I have also sadly seen many young people in our clinic who have self harmed or attempted suicide.
discussion
It is fair to observe (from Professor Whitehall’s own article) that he has no personal experience in dealing with transgender children. He is registered in the specialty of Paediatrics and Child Health and is published in the fields of neonatology, general and community paediatrics. The article in evidence is not from a peer reviewed academic journal but in my view it has been of some assistance in highlighting the limited long term studies that are available in this area.
It is important that people, such as Rae, and her parents, who are considering cross hormone treatment realise the uncertainties surrounding the treatment. However, despite having the time to do so, neither Rae nor her parents resile from the application currently before the Court.
Professor M and Dr T are not only well qualified medically but have considerable experience in diagnosing and treating persons with Gender Dysphoria. There is no evidence to suggest that either of them have any interest in supporting a ‘behavioural fad’. It was clear to me that in diagnosing Gender Dysphoria in Rae, Dr T made all appropriate enquiries and maintained a professional level of scepticism. I accept the evidence and opinions of both doctors.
The matter for determination is whether or not the proposed Phase 2 treatment is in Rae’s best interests. The proposed treatment will progress Rae’s transition from male to female. There are no other treatments available. As Rae is currently seventeen the question arises as to whether the decision should be delayed. At eighteen Rae would be able to make the decision herself.
The matters that are relevant to my determination include:
a)The physical and psychological impact of the treatment on Rae;
b)The physical and psychological impact of not having the treatment;
c)Rae’s strongly held wishes to proceed with Phase 2 treatment; and
d)Rae’s parent’s support for the treatment.
Physical and psychological impact of the treatment
The proposed treatment with oestrogen will induce irreversible physical changes for Rae. It will have the following known effects on Rae:
a)Breast growth;
b)Redistribution of body fat;
c)Decrease in muscle mass and strength;
d)Softening of the skin and decreased oiliness;
e)Decreased libido and erections;
f)Male sexual dysfunction;
g)Decreased testicular volume;
h)Decreased sperm production;
i)Decreased sexual hair growth;
j)Changes to brain and cognition; and
k)Likely long term adverse effect on fertility with a reduction in testicular size and sperm production.
The known risks associated with the treatment are:
a)Venous thromboembolism (blood clots);
b)Gallstones;
c)Abnormal liver function tests;
d)Weight gain;
e)High blood triglyceride levels;
f)Cardiovascular disease;
g)Hypertension;
h)Hyperprolactinaemia or prolactinoma;
i)Type 2 diabetes; and
j)Breast cancer.
Maintaining a healthy lifestyle including regular exercise, diet and avoidance of smoking would help to minimise the identified risks.
There is limited longitudinal research on the impact of long term cross hormone treatment. It is an area requiring ongoing research however the September 2017 Clinical Practice Guideline for the treatment of Gender Dysphoric persons supports the use of the proposed treatment.
Commencing the treatment is likely to enhance the prospects of Rae feeling contentment and happiness as she will be transitioning to female. The treatment is likely to minimise the risks of recurrence of depression and anxiety.
Ongoing medical and psychiatric monitoring is highly recommended.
The physical and psychological impact of delaying treatment
If the proposed treatment is delayed Rae will continue as a genetic male with suppressed male puberty as a result of Phase 1 treatment.
Delaying the treatment is an option as Rae will be able to make her own decision in November 2018. However, Phase 2 treatment is generally recommended to commence at around age sixteen. Rae is already expressing frustration and distress at the delay. Delay brings with it an increased risk of a recurrence of depression and anxiety. Dr T opines that there is an increased risk of social isolation, suicidal and self-harming ideation or action.
While she is well supported both at home and at school neither Dr T, Dr P or Professor M see any purpose in delay. All are confident that Rae is committed to transitioning to female and support the commencement of treatment. All opine that it is in her best interests to commence treatment now.
Rae’s wishes
Rae turned seventeen recently. She was present in Court with her parents and older sister during the proceedings before me. She presented written testimony. Rae presents as a slightly built long haired female.
Rae has always identified as female and has lived as a female since 2012. I have come to the conclusion that the development by Rae of online and real life relationships with Gender Dysphoric persons should be seen in the context of providing support for Rae rather than influencing her to identify as female.
I accept Rae’s heartfelt wish to progress to Phase 2 treatment. I am satisfied that Rae understands that there are potential life threatening risks associated with the proposed treatment and her preparedness to undertake the treatment knowing the risks is an indication of the strength with which she holds her views.
Her wishes are a significant factor in the determination of this application.
Rae’s parents’ wishes
Rae’s parents have come together to support her in this difficult decision despite their divorce in 2013. To their absolute credit they have prioritised Rae’s interests by jointly supporting her through this process. They have nothing to gain by supporting Rae in her wish to transition to female. They have been understanding and supportive and I accept that they just want what is best for Rae. They have educated themselves about the risks and consequences of the treatment and wish to consent to it commencing as soon as possible.
conclusion
I have come to the conclusion that the application should be granted.
Rae has always identified as female and lives life as a female. Since undertaking Phase 1 treatment she has become more confident and content. To date, she has not had to endure living with noticeably male characteristics but as she is now seventeen she wishes to develop female characteristics such as breasts. She is excited by the prospect and intends to undergo gender re-assignment surgery as soon as she is able. Rae and her parents have had the support of well qualified and experienced medical practitioners who have advised them of the risks associated with the proposed treatment.
While no one can be one hundred percent sure that Rae will not change her mind, all who know her are confident she will not. There seems little point in delaying the inevitable for Rae. The risks for Rae not undertaking the treatment are a recurrence of her depression and anxiety or even worse.
I am satisfied that Rae will be monitored while undergoing treatment and will have the support of her family and friendships.
Weighing up all relevant factors I consider the proposed treatment to be in Rae’s best interests.
I certify that the preceding Eighty-Five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 November 2017.
Associate:
Date: 23 November 2017