13 April 2004
The Chief Justice of the Family Court of Australia, Alastair Nicholson, today authorised a special medical treatment, involving the administration of hormonal therapies that will begin a "sex change process" for a 13 year-old known as "Alex".
Alex is a girl both anatomically and in the eyes of the law, but has the gender identity of a boy. The hormonal treatment will be accompanied by social, psychological and psychiatric supports.
The landmark Judgment follows an application by a Welfare Department that is Alex's guardian. The Judgment agreed that the proposed treatment for Alex was of a type that the High Court said must be brought for authorisation by the Family Court in its broad welfare jurisdiction because neither Alex nor his guardian could consent to it. The Judgment praised the family members and professionals involved in the case.
The application was supported by Alex's treating doctors, family members, the schools that Alex has attended, and by psychiatric specialists working in the field of gender identity dysphoria. Evidence heard by the Chief Justice confirmed that Alex had consistently viewed himself as a boy from a very young age and that he has been presenting himself as male and going to distressing lengths to conceal that he has a female body. The Court also heard that Alex had suffered from depression and had attempted to harm himself when he treated as a girl or if his desire to make the transition to male was ignored or rejected.
The Court authorised the staged administration of the hormonal treatment recommended by the experts until Alex is 18 years old. The implementation of the treatment will be in the hands of Alex's treating doctors and Alex himself.
Neither Alex nor the Department asked the Court to authorise any surgical intervention and no such authorisation was given. The expert evidence before the Court was that surgery would not be considered for Alex until he was at least 18.
The Court gave permission for Alex to initially receive a combination of oestrogen and progestogen. This is a form of contraceptive pill which when used continuously will suppress Alex's menses and the feminisation of his body. These effects can be reversed.
The Court also gave permission for the treating clinicians to administer a different hormonal combination involving testosterone at a later time closer to his 16th birthday. Such treatment would begin the process of masculinisation and have certain irreversible effects such as the deepening of Alex's voice, the promotion of facial and body hair, muscular development and enlargement of the clitoris.
The Court's orders allowed Alex to enrol in school under a male first name. It also gave approval for an application to make the same change to the name recorded on his birth certificate.
Although the Court was not asked to make orders concerning a change to the record of Alex's sex on the birth certificate, the Chief Justice's judgment observed that most parts of Australia require people seeking such a change to have undergone surgery. The Judgment urged those States and Territories to "reconsider their position" and described the requirement of surgery as "inconsistent with human rights". The Judgment said:
"A requirement of surgery seems to me to be a cruel and unnecessary restriction upon a person's right to be legally recognised in a sex which reflects their chosen identity and would appear to have little justification on grounds of principle."
With the agreement of all parties, the case was heard using many of the features of the less adversarial approach to children's cases that is being piloted in Sydney and Parramatta registries of the Family Court. The Chief Justice indicated the type of evidence he required and what further evidence was needed. The proceedings were conducted in a private conference room rather than a courtroom. Instead of just hearing experts and other witnesses give their evidence and answer questions one by one, there were opportunities for discussions about the evidence between witnesses, lawyers and the Chief Justice. The Judgment said:
"I think it is fair to say that the court record indicates that the legal representatives and witnesses shared my view that the procedural modifications to the hearing process enhanced the depth and richness of the evidence, and thereby better served the aim of an outcome which will be in Alex's best interests. I consider that a format such as this is usually to be preferred, at least in relation to special medical procedure cases."
To protect the identity of Alex publication of the State or Territory in which he lives, and the names of legal representatives, expert witnesses and other witnesses, is banned. As is normal practice with judgments, Justice Nicholson will not be available for interview by the media. Media representatives seeking comments may wish to consider interviewing medical and legal specialists and commentators in the field of gender identity dysphoria.