Re: Xanthe

[2015] FamCA 116

FAMILY COURT OF AUSTRALIA

RE: XANTHE [2015] FamCA 116

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicant and respondent are parents of a child with Gender Dysphoria – Where the applicant seeks a declaration that the child is competent to authorise her own Phase 2 treatment – Where the child is 17 years 7 months of age – Where the child has been diagnosed with severe depression – Consideration of whether the child is Gillick competent – Where the child’s treating medical experts and parents support the child commencing Phase 2 treatment – Where each of the child’s treating practitioners have expressed the opinion that the child is competent to the Gillick standard to authorise medical treatment – Declaration made as to the child’s Gillick competence – Approval of the change of the child’s name.

Family Law Act 1975 (Cth) – s 121(9)(g)

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

APPLICANT: The Mother

RESPONDENT: The Father

INDEPENDENT CHILDREN’S LAWYER: …

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED: 16 February 2015

JUDGMENT OF: Johnston J

HEARING DATE: 16 February 2015

REPRESENTATION

By Court Order the names of counsel and solicitors have been suppressed

Orders

1. That orders are made in accordance with paragraph 26, numbers 1 – 6 of the case outline document by the applicant as set out hereunder:-

   26.The Applicant proposes the following form of final orders (note that the orders are worded differently from the orders sought in the initiating application):  

   1.That the Court declares that the child Xanthe born on *… 1997 is competent to consent to 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. 

   [*Amended pursuant to the Slip Rule on 23 February 2015]

   2.That the Court approves Xanthe’s proposed change of name to Shannon for the purposes of s 28(3)(c) of the Births, Deaths and Marriages Registration Act 1995 (NSW).

   3.That the Court grants leave to apply on short notice in relation to the implementation of the declaration and any associated matter.

   4.That the full name of Xanthe, his family members, the hospital, the Independent Children's Lawyer, his medical practitioners, his school, this Court’s file number, any Family Consultant, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Xanthe 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 number and lawyers’ names.

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

   6.That otherwise all existing applications shall be dismissed, the case removed from the list of cases awaiting finalisation, and the appointment of the Independent Children’s Lawyer shall be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Xanthe 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 the File Number is suppressed

The Mother

Applicant

And

The Father

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Mother seeking various orders in relation to the child, Xanthe, who was born in 1997.  For convenience I shall refer to the Mother as “the mother”.

2. Xanthe has the condition of transsexualism called gender dysphoria.  The mother seeks a declaration that Xanthe is competent to consent to the administration of stage 2 treatment for the condition, an order that the Court approve Xanthe’s proposed change of name to Shannon for the purposes of the New South Wales Births, Deaths and Marriages Registration Act 1995 and certain other orders. 

3. The mother’s application is supported by Xanthe’s father to whom for convenience I shall refer as “the father”.  It is also supported by the solicitor for the independent child lawyer.

Background

1. The brief background matters are as follows. 

2. Xanthe’s parents married in Sydney in 1983.  As indicated above Xanthe was born in 1997.  Her parents separated in April 2006 and were divorced on 2 December 2007.

3. On 29 July 2009 parenting orders were made by consent under which the parents had equal shared parental responsibility for Xanthe and they shared Xanthe’s care for part of each week.  By late 2009 Xanthe was spending most of the school weeks living with her mother.  By the later part of 2010 Xanthe was living with her mother and seeing her father on weekends.

4. In early December 2011 Xanthe sent her mother a text message saying that she thought she might be bisexual.  In January 2013 Xanthe had her hair cut short and has kept it short ever since. 

5. In January 2013 Xanthe told her mother that a friend of hers was transgender, was going to Z transgender support organisation and had asked her to go as a support person.  Z is a support group for young persons who are transitioning, questioning issues of gender or interested in thinking about such issues.  Xanthe attended monthly meetings at Z throughout 2013.  She later informed her mother that there was no friend and that she had used this as an excuse.

6. In December 2013 both parents received an anonymous letter in the post stating that Xanthe was transgender.  Xanthe has said she does not know who sent the letters. 

7. On 3 May 2014 Xanthe commenced counselling with Ms M and she has attended Ms M regularly since then. 

8. During 2014 Xanthe asked her mother to buy her boy’s clothes.  Her preferred clothing now is jeans, shorts, sweatpants with t-shirts and men’s shirts.  Xanthe wears a breast binder and has been doing so since April 2013. 

9. On 21 July 2014 Xanthe was referred to Dr H, an endocrinologist. 

10. In July or August 2014 Ms M and her colleague, Ms D, informed the mother that they were confident that Xanthe had the condition of gender dysphoria.

11. Xanthe was reluctant to inform her father about her condition.  Xanthe had an appointment with Dr H on 22 September 2014.  He wrote a script for testosterone.  Xanthe informed her father of her situation by email that day.  Her father indicated he did not consent to Xanthe receiving testosterone therapy.  And I note at this point that Xanthe’s father has changed from his initial position and has come to Court today and informed the Court that he fully supports the application and the therapy sought for Xanthe following his reading the report of Dr K, psychiatrist.  Dr K has diagnosed Xanthe as having the condition of gender dysphoria.

12. Xanthe completed the higher school certificate in 2014. 

13. Xanthe has informed her mother and her father that she wants to receive gender therapy and transition from female to male as a way of feeling at home in her body so that her mind and sense of self matches her body.

14. Xanthe’s mother said that Xanthe understands that the physical changes are not all reversible and that testosterone treatment can heighten the risks of some cancers.  She is aware that she might lose some friends, but knows she has the support of other people.  She understands the therapy will have some consequences that might affect her life negatively but wants to proceed.

15. Xanthe has informed her mother that she intends to change her name as soon as legally able to do so and intends to have her breasts surgically removed after turning 18 years of age.

The 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 in Re: Jamie:

   ·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; and

   ·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 competent was set out in the House of Lords decision in Gillick & West Norfolk and Wisbech Area Health Authority [1986] AC 112. The relevant passage is that of Lord Scarman at 88-90 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.

Xanthe’s Condition

1. As indicated above Xanthe has been diagnosed as having the condition of gender dysphoria by psychiatrist, Dr K and also by two psychologists, Ms M and Ms D.  Ms M has been providing counselling to Xanthe for some time. 

2. The diagnostic criteria for the condition of gender dysphoria set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) are as follows:

   Gender Dysphoria in Adolescents and Adults

   A.A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by at least two of the following:

   1.A marked incongruence between one’s experienced/ expressed gender and primary and/or secondary sex characteristics (or, in young adolescents, the anticipated secondary sex characteristics).

   2.A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or, in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).

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

   4.A strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).

   5.A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).

   6.A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender)

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

   Specify if:

   With a disorder of sex development (e.g., a congenital adrenogenital disorder such as 255.2 [E25.0] congenital adrenal hyperplasia or 259.50 [E34.50] androgen insensitivity syndrome).

   Coding note:  Code the disorder of sex development as well as gender dysphoria.

   Specify if:

   Posttransition:  The individual has transitioned to full-time living in the desired gender (with or without legalization of gender change) and has undergone (or is preparing to have) at least one cross-sex medical procedure or treatment regimen – namely, regular cross-sex hormone treatment or gender reassignment surgery confirming the desired gender (e.g., penectomy, vaginoplasty in a natal male; mastectomy or phalloplasty in a natal female).

3. Dr K has seen Xanthe on three occasions namely, 28 January, and 4 and 11 February 2015.  He also interviewed the mother in Xanthe’s presence on 4 February and had a telephone interview with Xanthe’s father on 11 February 2015.  Dr K reports his methodology in arriving at his diagnosis as follows, and I quote:

   Part A - Diagnosis

   [Xanthe’s] history and clinical presentation along with the corroborative history provided by her mother, …, fulfils the DSM-5 criteria for gender dysphoria in adolescents and adults in that in her assigned female gender for a period of greater than six months (criteria A) she:

   1.Expresses a marked incongruence between her experience and expressed gender, (ie, male) and her (female) secondary sex characteristics.  This has been present to a lesser degree but largely suppressed since early childhood, but became marked and a source of increasing personal distress and dysphoria since the onset of puberty at around 11 years of age.

   2.Has a strong desire to be rid of her (female) secondary sex characteristics because of the marked incongruence with her experienced and expressed gender.  [Xanthe] has been wearing a breast binder since 2013 and looks forward to having surgery to remove her breasts and fashion a more masculine chest shape in the future.

   3.Has a strong desire for the secondary sex characteristics of the other (male) gender.  [Xanthe] is engaging in physical training to build muscle mass and reduce the female fat distribution of her body.  She wishes to have male facial hair and body hair and a deeper voice.  [Xanthe] has not stated to me that at this stage she is desirous of having a phalloplasty.

   4.Expresses a strong desire to be of the other (male) gender having felt this way since 2012 though she did not disclose this to her mother until January 2014 or to her father until September 2014.

   5.Has a strong desire to be treated as being of the other (male) gender.  [Xanthe] presents socially in loose male clothing, short hair and wearing no jewellery or makeup.  She makes efforts to flatten her breasts by wearing a binder.  She has adopted the male name [Shannon] and prefers to be called [Shannon] and to be referred to using masculine pronouns.  [Xanthe] strongly desires to be seen, known and treated as a male when she commences a course in July of this year.

   6.Has a strong conviction that she has the typical feelings and reactions of the other (male) gender (or some alternative gender different from the assigned gender).  [Xanthe] has preferred the company and gender typical activities of boys since early childhood, felt that she has never “fitted” in as a girl and could not relate to the interests and concerns of girls in her age peer group.  [Xanthe] sees herself as being primarily masculine in nature, but may concede that she has a larger than stereotypical capacity for empathy and lesser than stereotypical male level of aggression and competitiveness at this time.

   Criteria B.  The condition is associated with clinically significant distress and with impairment in social and academic functioning.

   [Xanthe] has on every interview detailed and expressed her personal distress due to experiencing a disjunction between her assigned gender and her experienced gender.  She has been very depressed, has physically harmed herself and experienced suicidal ideation in the recent past.  I believe that she has significantly underachieved academically because of the pressure of having to deny and suppress her gender experience amongst her school peers for genuine fear of discrimination and abuse.  It is my opinion that this has been grown into a clinical depression which further impaired her motivation and performance.

   It is my judgment that the depression is secondary to the gender dysphoria and her perceived risk of rejection and abuse should she disclose it, however the depression is such that it may also require treatment in its own right.  A significant exacerbation of [Xanthe’s] despair, depression and suicidality arose as a result of a perceived rejection and invalidation of her disclosure by her father in September 2014, followed by his making statements and taking actions that [Xanthe] perceived as being obstructive to her transitioning. 

   It is my clinical impression that [Xanthe] is also suffering from major depressive disorder DSM-5 in partial remission.

   And Dr K goes on to set out why he has arrived at this diagnosis about the depression which, in my view, it is unnecessary to set out the details of here.

Nature and Effects of the Proposed Treatment

1. Dr K refers to these as follows:

   [Xanthe] is seeking to commence phase 2 medical treatment for gender dysphoria which in her case primarily constitutes administration of exogenous testosterone.  This is usually given in the form of an intramuscular depot injection every three weeks.  She may have additional hormonal treatment for suppression of her menses.  Should the testosterone cause adverse effects such as acne or hair loss, further medical treatment of these conditions can be made available to her.

2. Dr K, under the heading “The ways in which the procedure is necessary for the welfare of the child” says as follows.  :

   The results of the procedure will enhance [Xanthe’s] self-esteem and reduce the dissonance and disjunction between her assigned sex and her experienced and expressed gender.  This is very likely to alleviate her depression, dysphoria and the self-loathing of her body as the masculinisation proceeds. 

   It will also make it much easier for her to be perceived as a male by others unless she chooses to disclose her transgender status thus reducing the social dysphoria and significant anxiety around not passing as a person of male gender.

3. And then Dr K talks about the likely short and long-term physical, social and psychological effects of the procedure on Xanthe, including any risks:

   If the procedure is carried out 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 lessen the extent of some of her female secondary sexual characteristics, primarily in terms of body shape.  There may be some enlargement of the clitoris, but otherwise no change is anticipated in the structure of her primary internal and external sexual organs.  I have referred to the social and psychological beneficial effects in the section immediately above.

   Physical risks include premature fusion of epiphyses thus limiting growth – (not likely to be a factor in [Xanthe’s] case as it is likely that this has already occurred) - acne, male pattern baldness, elevated HDL, cholesterol, renal dysfunction, hepatic dysfunction.  The social risks include rejection by family and friends, discrimination in public and in the workplace, harassment and abuse, including physical attack and rape as she will be perceived as being a target by some transphobic people.  The psychological risks include the stress of passing as a person of male gender while she is still transitioning, adjustments to her sense of identity as her body changes, exacerbation of mood disorder due to the hormonal therapy.

1. And then Dr K says:

   If the procedure is not carried out [Xanthe] will need to continue in her present physical state until she reaches legal majority and is then able to consent to the procedure on her own behalf.  This objectively means a delay in treatment of five months.  The likely psychological effect of not carrying out this procedure in the short-term is an acute and severe exacerbation of [Xanthe’s] major depressive disorder which I anticipate will lead to a resurgence of deliberate self-harm and very possibly to suicide attempts.  This is likely to prove nearly impossible to effectively treat unless and until [Xanthe] is able to commence phase 2 treatment for the gender dysphoria.  Socially it will prove even more difficult for [Xanthe] to successfully pass as a male amongst her new peers in her post-secondary studies, and she will not be likely to form new close friendships and intimate partnerships due to her inner conflicts and self-loathing.  She may well choose to further defer her post-secondary training and this will represent further social and financial impairment to her.

Is Xanthe Gillick Competent?

1. Both Xanthe’s psychiatrist, Dr K, and her endocrinologist, Dr H, have expressed the opinion that she is Gillick competent.  Dr H says as follows, referring to Xanthe by her preferred name of Shannon:

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

2. And Dr K reported as follows (under the heading Competence to Consent to the Gillick Standard):

   In my three interviews with [Xanthe], and specifically in the interview conducted on 11 February 2015, [Xanthe] demonstrated the following capacities to a high level of satisfaction.  She is able to comprehend and retain both existing and new information regarding the proposed treatment as demonstrated by her knowledge of what the treatment comprises.  She is able to provide a full explanation in terms appropriate to her level of maturity and education of the nature of phase 2 treatment as being a lifelong course of testosterone usually administered by regular intramuscular injection.  She is able to describe the advantages of phase 2 treatment in terms of the physical induction of male secondary sexual characteristics, its consequent effect on her internal sense of dissonance between her assigned sex and gender and her experienced and expressed gender, and facilitation of social acceptance as a male.

   She is able to describe the disadvantages of phase 2 treatment in terms of an extensive knowledge of the potential medical and psychological adverse effects of testosterone, the discomfort of injections, the inconvenience and expense of embarking on a potentially lifelong course of medical treatment and the social risks of further alienation from her father and some of her peers.  She is able to weigh the advantages and disadvantages in the balance and arrive at an informed decision about whether and when she should proceed with phase 2 treatment as indicated above.  She is able to understand that phase 2 treatment will not necessarily address all of the psychological and social difficulties that she had before the commencement of treatment and is willing to continue to access support and treatment as necessary in this regard.

3. Dr K concludes by saying:

   I believe that her continuing mild depressive condition and her father’s overt opposition notwithstanding, [Xanthe] is free to the greatest extent possible from temporary factors that could impair her judgement in providing her consent to the procedure.

4. On the basis of all the evidence before the Court, including that of Doctors K and H, I am satisfied that Xanthe has achieved the sufficient understanding and intelligence to understand fully what is proposed by the treatment as described in the Gillick case so as to be competent to lawfully consent thereto.

5. In relation to the change of name aspect of this, Xanthe wishes to adopt a different name, namely Shannon.  Both her parents support her desire in this regard.  Clearly it would be in her interests to be permitted to change her name formally. 

6. For those reasons I propose to make the orders sought.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 16  February 2015.

Associate:     

Date:              3 March 2015