Re: Sage

[2017] FamCA 910

FAMILY COURT OF AUSTRALIA

RE: SAGE [2017] FamCA 910

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are parents of a child with gender dysphoria – Where the applicant parents seek an order that the child is competent to consent to the administration of Stage 2 treatment for the condition of gender dysphoria – Where the child is aged 16 years 11 months– Consideration of whether the child is Gillick competent – Where the child’s treating medical practitioners and parents support the child commencing Stage 2 treatment – Where each of the child’s treating medical practitioners have expressed the opinion that the child is Gillick competent and can consent to the proposed treatment – Where the Court is of the view that the child is Gillick competent and can consent to the proposed treatment – Order made that the child is competent to consent to the proposed treatment.

Family Law Act 1975 (Cth) s 67ZC

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

Re Jamie (2013) FLC 93‑547

1st APPLICANT:

The Mother

2nd APPLICANT: The Father

FILE NUMBER: 

By Court Order File Number is suppressed

DATE DELIVERED: 9 November 2017

JUDGMENT OF: Johnston J

HEARING DATE: 9 November 2017

REPRESENTATION

By Court Order the names of Solicitors have been suppressed

Orders

1. That orders be made in accordance with paragraphs 1, 2 and 3 of the final orders sought by the Initiating Application filed on 20 October 2017 as set out hereunder:

   1.That the Court declares that the child Sage, born in 2000 is competent to consent to the administration of Stage 2 treatment for the condition of Gender Dysphoria in Adolescents and Adults in the Diagnostic and Statistical Manual of Mental Disorders (2013) DSM-5.

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were initiated, the name of Sage’s parents’ lawyers, and any other fact or matter that may identify Sage shall not be published in any way, and only anonymised reasons for judgment and orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as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

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

2. That otherwise all existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

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: Sage 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 Mother and The Father

Applicants

REASONS FOR JUDGMENT

Introduction

1. Sage is 16 years 11 months of age.  Sage has the condition known as gender dysphoria. Sage was born female but identifies as male. He has a strong desire to have medical treatment for the condition of gender dysphoria.

2. The matter for determination is whether Sage has reached a sufficient understanding to enable him to give consent valid in law to a medical procedure.

3. The applicants are Sage’s parents, the mother and the father. They seek an order to the effect that the Court declares that the child is competent to consent to the administration of Stage 2 treatment for the condition of gender dysphoria in adolescents and adults in the Diagnostic and Statistical Manual of Mental Disorders DSM-5. They also seek certain machinery orders to ensure Sage’s privacy the details of which it is necessary to set out here.

4. In the alternative, the applicants seek that the Court authorise the administration of Stage 2 treatment for the condition of childhood gender identity disorder under s 67ZC of the Family Law Act 1975 (Cth) on and from a date to be determined by the treating medical team of Sage on the basis that it is in the best interests of Sage.

background

1. The brief background facts are as follows.

2. Sage was born in 2000.

3. From when Sage was three years of age he refused to wear dresses, was not interested in female-typical childhood toys such as dolls and prams and preferred to play with boys in physically active games in early primary school. He had a deep voice in childhood and other children teased him by calling him a “lesbian” from the age of eight, though he had long hair. At 10 years of age, he began to think of himself as a boy. At age 12, in Year 7, Sage created a male internet identity and would always play video games as male avatars.

4. In 2013 when Sage was 12 years of age his pubertal development began with breast development and commencement of menses. Sage wore a jumper every day to hide his breasts and wore a menstrual pad as well. He became highly anxious and obsessional around appearance, cleanliness and preparation for assignments and presentations. Sage saw the menstrual periods as signifying that he was going to grow up as a woman and not become a man, and started cutting his arms and legs as an act of self-punishment. A teacher noticed the cuts and this brought Sage to treatment by a local psychologist.

5. In 2013 Sage refused to participate in family and school photographs and took a paracetamol overdose on the morning of the school photos. This led to his admission to an adolescent mental health unit, then treatment with his local adolescent mental health service. However, within three weeks of discharge from hospital he had a conflict with a teacher, absconded from school and cut himself multiple times with a glass bottle that he found and broke. This resulted in another admission, but the diagnoses remained anxiety and depression. Sage engaged with a male psychologist in the PIERS team following that hospital admission.

6. In 2013 and 2014 when Sage was in Year 7 and 8 he was bullied by his peers, called a lesbian and a “tranny”.  Sage attended a different school part time through 2015.

7. During 2016 Sage refused to attend school.  Shortly thereafter he told his parents that he was transgender. His parents were surprised but understanding and supportive.

8. Within a short time Sage asked for another mental health admission. A lengthy hospitalisation followed where the psychiatrist diagnosed autism spectrum disorder and noted Sage’s emotional dysregulation as a focus of attention.

9. In July 2016 Sage began to use a breast binder.

10. In August 2016 Sage commenced attending X School. From his first day at the new school he socially transitioned.  

11. On 17 September 2016 Sage saw a consultant psychiatrist, Dr T. Sage informed Dr T that he sometimes uses a rolled up sock in his pants and goes to male public toilets (using the cubicles).

12. On 25 January 2017 Sage’s name was legally changed.

13. On 10 August 2017 Sage and his parents attended an appointment with an endocrinologist, Associate Professor G. She expressed in her report that she believes Sage meets all the requirements to undergo transition and undertake Stage 2 treatment prior to the age of 18 given “his excellent understanding of his condition and the need for treatment to alleviate the stress associated with his condition”.

14. On 2 September 2017 Dr T interviewed Sage for determination of Gillick competence. Dr T stated that he believed that Sage fulfils the DSM-5 criteria for gender dysphoria based on his history and clinical presentation and is Gillick competent to consent to Stage 2 treatment.

Applicable law

1. In Re Jamie (2013) FLC 93‑547 the Full Court dealt comprehensively with the circumstances in which Court authorisation is necessary for Phase 1 and Phase 2 treatment. The following points of guidance arise from the judgment:

   ·The Court has jurisdiction to hear and determine an application for authorisation of Phase 1 treatment if there is a dispute about the proposed course of treatment, for example between the views of the child, his or her parents or guardians, and his or her treating medical practitioners. 

   ·In the absence of such a dispute, Court authorisation is not required for Phase 1 treatment. 

   ·In relation to Phase 2 treatment, if the Court is satisfied that the child is Gillick competent, then in the absence of any controversy the child can consent to the treatment and no Court authorisation is required.

   ·The question of whether a child is Gillick competent is a matter to be determined by the Court.

   ·If the Court is not satisfied that the child is Gillick competent then Court authorisation for Phase 2 treatment is required. 

2. What is meant by Gillick competence was set out in the House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (“Gillick”). The relevant passage is that of Lord Scarman at 188 - 189 which is as follows:

   … I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.  It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.  Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.  Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parents’ consent.

Expert evidence

1. Dr T, a consultant psychiatrist, has diagnosed Sage as having the condition of gender dysphoria. Dr T said that Sage’s history and clinical presentation fulfil the criteria for gender dysphoria in adolescents and adults as set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). He described this by reference to the criteria in the DSM-5. He referred to Criterion A which is:

   A marked incongruence between one’s experienced expressed gender and one’s assigned gender, of at least six months’ duration, as manifested by at least two of the following:

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

2. Dr T said about this:

   Sage has experienced his gender as male since 10 years of age, and has been extremely distressed by the mismatch between his sense of gender identity and the sex characteristics of his body since the onset of puberty at age 12.

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

3. About this matter Dr T said:

   Sage strongly desires to have a masculine chest and has worn a binder and loose upper clothing for over 12 months. He is highly emotionally distressed by his menstrual periods and has been relieved of this by medical suppression of menstruation since November 2016. He is distressed by the curves of his hips and thighs and wants a typically masculine body shape. He hates the sight of his body and cannot look at himself when naked.

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

4. Dr T said about this:

   Sage has a strong and persisting desire to develop male secondary sexual characteristics including a deep voice, facial and body hair, increasing muscularity and a male body shape.

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

5. Dr T said that Sage had a strong desire to be of the other gender having felt this way for a period of over six years at the time of report.

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

6. About this matter Dr T said:

   Sage has changed his original given name to a masculine one, has cut his hair short, wears a chest binder and male-typical clothing in order that others will perceive and treat him as a male. He feels that it is right and affirming for him when people do so.

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

7. Dr T said that “Sage expressed to me that he feels that he is a typical male in terms of his feelings and reactions”.

8. Dr T referred to Criterion B in the DSM-5 which is:

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

9. Dr T said:

   Prior to coming out to his family, Sage was very depressed and distressed. He would not be photographed, was engaged in severe deliberate self harm and ultimately refused to attend school where he was seen and treated as a female or pejoratively labelled a “tranny” by his peers.

10. In his report, Dr T described the proposed procedure and its effects. He noted that Phase 2 medical treatment for gender dysphoria for an individual who is transitioning from female to male constituted the administration of exogenous testosterone. He stated that this is usually given in the form of an intramuscular depot injection every three weeks, though topical gel, patches and oral forms are available. A three-monthly depot injection is available once treatment is in the maintenance phase. He noted that Sage may temporarily require additional hormonal treatment for full suppression of menses.

11. Significantly, Dr T said that the results of the procedure will enhance Sage’s self-esteem and reduce the incongruence between his assigned gender and his experienced and expressed gender. Dr T said that this is very likely to improve Sage’s mood state, through reduction of gender dysphoria and the self-loathing of his body as the masculinisation proceeds. He noted that it will also allow him to be perceived and treated as a male by others, reducing social dysphoria and the significant anxiety around not “passing” as a mid-adolescent person of his experienced gender.

12. Dr T went on to note the likely short and long-term physical, social and psychological effects of the procedure (including the risk) and he divided these up under two headings as follows:

    If the procedure is carried out

13. Dr T stated that 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.

14. In terms of the physical risks, Dr T noted that these include premature fusion of the epiphyses, limiting final height, acne, male pattern baldness, elevated HDL cholesterol, renal dysfunction, hepatic dysfunction and weight gain.

15. Dr T said that the social risks may include rejection by some family members, friends and casual acquaintances, discrimination in public and in the workplace, transphobic harassment and abuse and assault in the worst case scenario.

16. Psychological risks were identified as including the stress of passing as a person of male gender while still transitioning, adjustments to his sense of identity as his body changes and exacerbation of mood dysregulation due to hormonal therapy.

    If the procedure is not carried out

17. Dr T noted that if the procedure was not carried out Sage would need to continue in his present physiological state until he reaches the age of 18 years and is able to independently consent to the procedure. This objectively would mean the delay in treatment by over one year.

18. He identified the likely psychological effects for Sage of not carrying out the procedure as prolongation of Sage’s dysphoric state with attendant risks of recurrent depression and deliberate self-harm, especially as the social and academic stresses inherent in proceeding with secondary school increase. Dr T stated that if he was not able to commence Phase 2 treatment, Sage would feel invalidated by society and his essential personhood would be negated.

19. Dr T said that socially not undergoing the procedure would pose an obstacle to Sage’s ability to be perceived as a male amongst his peers as he matures. He would find it more difficult to form friendships and relationships due to inner conflicts, body dysphoria and self-loathing. Dr T stated that while Sage is academically gifted, he would be very likely to underachieve, to isolate himself socially and become prone to self-destructive behaviours.

20. Dr T said that Sage has been given the opportunity to discuss future fertility with an understanding that Phase 2 treatment will impair his reproductive capacity. Dr T stated that Sage was clear that he did not wish to bear a child or undergo egg harvesting or storage.

21. Dr T noted that Sage, his parents and his treating medical professionals, including endocrinologist Associate Professor G and general practitioner Dr B, all agree to the procedure. He also noted that he was informed that Sage has the complete support of his immediate and extended family, his school and his friends in regard to undergoing Phase 2 treatment.

22. Dr T considered whether Sage had trust and confidence in the doctor-patient relationship. He stated that Sage had reliably attended his appointments and was able to consider points of discussion in a thoughtful and mature manner. He had always been cooperative, engaged and trusting in his interviews and adhered to his psychological and medical treatments conscientiously.

23. Associate Professor G is the consultant physician and endocrinologist of Sage. In her report she outlined Sage’s current situation and treatment as follows:

    Sage is currently being treated with Primolut N in order to achieve amenorrhoea as menstrual cycles cause considerable distress, given Sage’s identity as male. Sage is seeking to commence treatment with testosterone for the purpose of transition to male gender…The lack of ability to seek appropriate treatment early on resulted in significant adverse psychological effects with at least three admissions to psychiatric institutions with suicidal and self harm behaviours which are now well managed with antidepressants under the supervision of Dr Stephen T.

Is Sage competent to consent to the Gillick standard?

1. Dr T considered this question under various criteria. He stated that following his interview with Sage on 2 September 2017 that Sage met the following criteria:

   ·Able to comprehend and retain both existing and new information regarding the proposed treatment

2. Dr T said that: “Sage comprehended, acknowledged and absorbed the additional information that I provided through the course of the interview, and integrated it with his existing knowledge.”

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

3. Dr T said that:

   Sage knew that the prime element of treatment is administration of the male sex hormone, testosterone. He said that it can be given by intramuscular injection, cream, orally, or as a pellet under the skin (in the USA). He knew that he is most likely to have the testosterone by intramuscular injection, usually given every three weeks ... He realised that he would need to have the treatment for the rest of his life. He was aware that, in addition to giving testosterone, the doctors would need to do blood tests – checking for testosterone levels, red blood cells, cholesterol...

   ·Able to describe the advantages of Phase 2 treatment

1. Dr T stated that Sage described that he would develop male characteristics such as a deeper voice, more hair on his body and that he would more easily gain muscle mass. He indicated he would have a more masculine body shape and he would no longer have periods which he agreed would be a significant advantage. He said he would feel more comfortable, happier, not be misgendered as much and his appearance would better match his age.

   ·Able to describe the disadvantages of Phase 2 treatment

2. Dr T said that Sage was aware that he might experience acne, weight gain, heart problems, raised cholesterol, high blood pressure, increased red blood cells – which can block the blood vessels, increased risk of cancers like ovarian, uterus and maybe breast cancer, and a risk of type two diabetes. Dr T stated that he added that there was a risk of liver reaction to the testosterone. Dr T said that Sage acknowledged the inconvenience of having regular injections and medical appointments. Dr T said that Sage could not think of any psychological disadvantages to having testosterone treatment.

   ·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

3. Dr T noted that Sage said: “There’s a lot more advantages than disadvantages for me” and that he would like to go ahead with the treatment as soon as possible.

   ·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

4. Dr T reported that Sage said that the treatment “won’t fix the other issues but it will make me feel better, which will help.”

5. Associate Professor G reached similar conclusions as follows:

   When Sage was reviewed today, he

   1)     had a full and complete understanding of the need to commence stage 2 treatment for his emotional and longer term physical and social wellbeing.

   2)     expressed no desire to preserve fertility for the future and had a good understanding of testosterone treatment and the potential impact on future fertility.

   3)     had a good understanding of the short term physical effects of commencing testosterone treatment and expressed considerable distress at the prospect of not being able to commence testosterone treatment.

   4)     appeared to fully comprehend the proposed treatment. He was able to provide a full explanation appropriate to level of maturity, in fact slightly above level of maturity, as to the nature of phase 2 treatment its benefits and potential side effects.

   5)     recognised the potential mood disturbances which might occur during phase 2 treatment and will seek appropriate support through his Psychiatrist, [Dr T], when phase 2 treatment commences

   6)     had an understanding that phase 2 treatment could have consequences that could not be entirely foreseen at the time

   7)     had no temporary factors such as pressure or pain that were impacting his judgement in providing consent to the procedure.

6. Associate Professor G also stated that:

   Sage’s parents were fully supportive of his decision to transition to male and he has also been seen by an Adolescent Medical Physician, [Professor D], and a psychiatrist with expertise in recognition and management of gender dysphoria, [Dr T], and myself, all of whom affirm the diagnoses of gender dysphoria.

Opinions

1. Dr T said that:

   It is my opinion that Sage is free to the greatest extent possible from temporary factors that could impair his judgement in providing consent to the procedure. Sage was interviewed individually to determine his capacity to consent to the treatment. He was in no pain or distress during the interview. His anxiety was minimal and he said that his mood was good (rated six out of ten). He was in a clear sensorium and was not hallucinating. He denied that anyone had put any pressure or exerted influence on Sage to make any of his responses.

2. Associate Professor G stated:

   I therefore felt that Sage meets all the requirements … to undergo transition and undertake stage 2 treatment prior to the age of 18, given his excellent understanding of his condition and the need for treatment to alleviate the stress associated with his condition.

3. Sage’s father expressed that Sage is well aware of the consequences of hormone treatment, but does not seem concerned by them. He has accepted the fact that he will not be able to have children.

4. Sage’s mother stated that Sage is aware of possible side effects, which includes increased acne, but an integrated male identity is of high significance to him.

Conclusion

1. On the basis of the expert evidence and that of Sage’s parents, in my view, Sage has a clear understanding of what the proposed medical treatment involves. I am satisfied that he has been able to weigh the advantages and the disadvantages of what is proposed and has been able to arrive at a clear judgment about whether to undertake the proposed treatment. 

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

3. I shall make the orders sought. 

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 9 November 2017.

Associate:     

Date:   10 November 2017