Gender changes – Re: Martin [2015]

Gender changes – Re: Martin [2015] FamCA 1189 (23 December 2015)

Last Updated: 8 January 2016

FAMILY COURT OF AUSTRALIA

FILE NUMBER: By Court Order File Number is suppressed

REPRESENTATION

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

ORDERS

«FCA_LD221»IT IS DECLARED

(1) That the child is Gillick competent and able to consent to testosterone hormone therapy treatment or any other complementary treatment.

IT IS DIRECTED

(2) That the name of the child and any non-expert witness in this matter not be published.
(3) The application filed 21 December 2015 be otherwise dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Re: Martin.

FILE NUMBER: By Court Order file number is dismissed

BETWEEN:

Applicants
The Father and the Mother

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1189.html

“THE FACTS

13. The child is 16 years old and the only child of the mother and the father. He lives with his mother, stepfather and younger sibling in a rural region. He completed Year 10 in 2015 in an accelerated learning program
14. The mother is 44 years old and not employed outside the home. She has re-partnered and, whilst there is no direct evidence from the child’s stepfather, the paediatrician, Dr F, refers to the stepfather as supportive of and as having consented to the proposed treatment. The father is 48 years old and works as a labourer. The parents commenced cohabitation in 1993 and married in 1998. They separated in 2003 when the child was three years old. The parents are not divorced. The only other document on the court file is the parents’ joint application for final parenting and financial orders which was granted on 11 December 2003. Consistently with the final parenting order, the child has continued to live with the mother but regularly spends time and has maintained a meaningful relationship with the father.
15. The mother deposes to the child’s early interests being stereotypically male orientated, playing with dinosaurs, enjoying games played by boys and pursuing karate and soccer over dance and gymnastics. In Year 6 the child was the only female student to wear pants. At the age of 12 years the child “became introverted, a recluse, depressed and dark”. In mid-2014 the child told the mother that he was born a girl but felt that he was a boy. His moods were labile. Following a period of emotional dysregulation, the mother discovered that the child had been browsing the internet on the home computer about “ways to commit suicide”.
16. The mother deposes:-
    13. I sought weekly counselling for [the child] from February 2012 until July 2014, when I was called to the counsellor’s office. I was told ‘[the child] has the feeling of suffocating inside a body she does not associate with.’ The counsellor advised the situation with him was deteriorating and [the child] was contemplating suicide, ‘cutting’ himself to relieve the pain he felt.
    14. 14. I took [the child] to our family doctor and we were referred immediately to the … CAT Team. [The child] was assessed by a psychiatric registrar there and we were then referred to the [X] Hospital Gender Dysphoria [Service] for further assessment.
    15. We have attended the [X] Hospital … Gender Dysphoria [Service] for the past 14 months and [the child] has been diagnosed with Gender Dysphoria, internationally medically diagnosed Gender Dysphoria. [The child] was born a boy, however through no fault of his own, physically formed in the skin of a girl.
    16. As for [the child], everything about going through puberty when your body does not match your being is a betrayal. He has the feeling of disgust at the sight of his female anatomy when showering. Getting his period was the final straw on the path to contemplating suicide. It saddens me that he has these thoughts every single day, although [the child] is now taking medication to stop menstruation.
    17. [The child] has to ‘bind’ his breasts every day, so tight that it causes pain and shortness of breath, just so he can hopefully fit in to what society sees as ‘normal’. He does this so people can see him for him and not the female physical form.
    18. With the empathy of Safe Schools Coalition, [the child] has the cooperation and support of his family, friends and secondary college. [The child] is now recognised on the role as male to teachers, support staff and peers. He has also cut his hair and dresses as boys do. I now see a little smile as he gets closer to being allowed to be his ‘true self’
    19. We are now ready for the hormone replacement therapy, however due to [the child’s] age, this stage is now a legal matter, requiring us to seek authorisation from the Family Court.
    20. Our family unit is suffering. When I say goodbye to him every day, I sit hoping he comes home from school. Every day I tread water and counsel his depression, hoping that he can hang on.
    21. Although [the child’s] father and I are separated, [the child] regularly spends time with him and he is supportive of [the child] undergoing hormone therapy in the form of testosterone treatment.
17. The father deposes that he noticed a positive change in the child after the child started the counselling at the X Hospital Gender Dysphoria Service and that:-
    12. […] [The child] was able to express his true feelings and emotions and this created a glimpse of happiness that I as [the child’s] parent was extremely happy to see in him. This unfortunately would fade between visits to counselling sessions.
    13. Since [the child] has had the courage to embrace who he really is he has been able to begin the school year in 2015 as the person he is, and that is a male child. The change in [the child’s] outlook appeared to me to be a little more confident.
    14. Seeing [the child] confident in his true identity as a male means the world to me. The most important thing for me is for [the child] to live his life happy, fulfilled and without any limitations.
    15. [The mother] has been taking [the child] to the [X] Hospital …Gender Dysphoria [Service] and I understand that for [the child] to undergo stage 2 testosterone hormone replacement therapy, authorisation from the Family Court is needed. I consent to [the child] receiving testosterone hormone replacement therapy and request that this Honourable Court authorises this treatment.”
18. The child first consulted Professor P in November 2014 for a mental health evaluation and assessment of the child’s experience of gender. Professor P’s report is dated 10 October 2015. He deposes to the child’s history and presentation as follows:-

Mental health:
Throughout his childhood [the child] appeared happy, intelligent and a cooperative child, who appeared to enjoy school and his friends. With the development of puberty, however, he became more withdrawn and depressed. He has experienced significant periods of profoundly depressed mood, and feeling that life was not worth living. He said ‘if I can’t be a boy my life is not worth living’. In the year leading up to his attendance at the [X Hospital] Gender Service, [the child] had periods of increasing distress and despair, relieved at times by self-harm and cutting his skin. He said it felt like living a double life because he had to appear to other people to be unhappy, yet within he felt very sad and despairing. [The child] has consistently tried to avoid causing distress to his family and friends, at the expense of his own mental health.
[The child] experience (sic) significant sleep difficulties, and problems concentrating at school, consistent with the experience of a major depression.
[The child] has commence (sic) treatment with escitalopram 10 mg, an antidepressant, prescribed through his family doctor. He will receive ongoing support from headspace youth services, … through this transitional period.
At the beginning of 2014 he revealed to his mother that he felt he was a boy. Since then his mood has improved and he has been able to be very comfortable in his transitioned identity as a boy.
[The child] is a very intelligent young person, who has been achieving high “A” grades in many subjects at school, with a special interest in English and literature, and would like to become a game (sic) or programmer. He has had no misuse of alcohol or cigarettes.
There is no evidence of any major mental illness for [the child]; he does not experience any hallucinatory or delusional phenomena and has not had any psychotic experiences.
Gender:
[The child] has describes (sic) experiencing distress about his female body since he can first remember. As a very young child he asked why was he born a girl, and expressed a desire to have a penis. He never wanted ‘girly stuff’, avoiding the waring (sic) of dresses, preferring boys’ type clothing. He was always seen as a tomboy to others.
His games and activities were always very masculine, he preferred to associate with boys and was an enthusiastic participant in the sport called [a form of cycling]. He was distressed when girls and boys were separated into different groups, and he was unable to participate with boys. He gave the sport away. His other sports were very masculine as football, soccer and karate.
Rather than use the girls (sic) toilets at school, he would not go to the toilet at all during school hours.
[The child] has been extremely dysphoric about his body. He finds the presence of his breasts extremely distressing and seeks chest surgery, as soon as he is able. He binds his chest in order to minimise their external appearance. He finds the presence of his female reproductive organs is extremely distressing. He would like to be more muscular and masculine looking.
[The child] has met with [Ms G], speech pathologist, to explore ways of masculinising his voice.
[The child] enjoys good relationships with his peers, but has not yet developed strong sexual attraction to other young people. He feels he is likely to develop a romantic relationship with a boy as he is older and more confident in himself socially.
Overall, [the child] has a strong persistent and enduring experience of himself as a boy at his core, he regularly is acknowledged as a boy by his peers, family and the broader community, and he describes strong and persistent stereotypical feelings and reactions of a boy. He tries to masculinise his body and voice as best he can, and would like chest surgery as early as possible.
Mental Health Second Opinion:
[The child] was seen by Dr [S], consultant child and adolescent psychiatrist in February 2015 for a second opinion regarding an understanding of [the child’s] gender identity. Dr [S] confirmed that [the child] meets the criteria for diagnosis of gender dysphoria of adolescents, with his persistent identification as male and his rejection of his female anatomy and physiology.

19. The child has been a patient of Dr F since mid-2015 and, up until September 2015, she had seen him for five consultations. Dr F supports Professor P’s diagnosis and has agreed to treat the child with testosterone to masculine his body. Dr F’s report is dated 1 September 2015.

THE LAW

20. In Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110, the Full Court swept aside legal impediments which then confronted young persons suffering Childhood Gender Identity Disorder (also known as Gender Dysphoria in Adolescents and Adults). The Full Court recognised and accepted the psychological and psychiatric origin of the condition and that treatment was now available which was accepted by the medical community as appropriate.
21. The Full Court also accepted the evidence in that case to the effect that, absent treatment, the young person would suffer irreparable psychological harm. On that basis, and because the procedure at the first stage is reversible, the Full Court found that stage one treatment was not in the class of procedures which required any authorisation from the court so long as there was no controversy between child, the parents and the treating medical practitioners.
22. The treatment for this condition is usually administered in two stages, the first stage being reversible and the second stage having much more permanent consequences for the young person. The second stage is usually (but not always) prescribed when the young person reaches an age of approximately 16 years. The changes brought about for the young person involve the development of breasts in male to female and the development of male characteristics such a growth of facial and other body hair, masculinisation in relation to voice and appearance and a suppression of the development of female organs and characteristics in female to male. This case is about stage two treatment.
23. In Re Jamie the Full Court opined that because of the irreversible nature of the second stage of treatment the young person must either be competent to consent to the procedure (as identified in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112 (“Gillick’s case”) and accepted into the law of Australia by the High Court in Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 (“Marion’s case“)) or if such competence is lacking, the court rather than the parents, should give consent.
24. Re Jamie, is authority for the proposition that the court should declare whether the young person has the requisite intelligence and appreciation of the procedure contemplated to be able to give informed consent or, in other words, whether the child is Gillick competent. Bryant CJ (with whom the other members of the Full Court agreed on this point) said at [137]

137. With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.

25. Her Honour went on to say at [138] and [139]

138. It seems harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion’s case.

139. That application however would only need to address the question of Gillick competence and once established the court would have no further role. The material in support of such an application, whilst needing to address the proposed treatment and its effects, and the child’s capacity to make an informed decision, would not need to be as extensive as an application for the court to authorise treatment and I can see no reason why any other party need be involved, absent some controversy. It would be an issue of fact to be determined by the court on the material presented.

26. Thus the Chief Justice made clear that the application should, in the absence of a dispute between the child, the parents and the doctors, proceed on the basis of un-contradicted evidence which is not susceptible to challenge. This application has proceeded as the Chief Justice envisaged
27. Most respectfully, in my opinion, the reliance by our Full Court on the passage in Marion’s case referred to in [137] of Re Jamie incorrectly interprets the discussion and ultimate findings of the High Court in Marion’s case.
28. Marion’s case concerned a 14 year old girl who was intellectual disabled and suffered from severe deafness and epilepsy, had an ataxic gait and behavioural problems. Her parents proposed that she undergo two surgical procedures which, if carried out, would prevent her menstruating and being able to bear children. These procedures were together referred to as “sterilisation”. It was common ground that Marion’s intellectual disability and minority rendered her unable to consent to sterilisation. It was also common ground that the sterilisation was not to be carried out to treat some malfunction or disease. To the extent that the High Court adopted the expressions “therapeutic” and “non-therapeutic” to draw a distinction which it considered important, it was satisfied that the proposed sterilisation of Marion was a non-therapeutic intervention involving invasive, irreversible and major surgery to remove the her healthy reproductive organs.
29. Two of the major issues in Marion’s case were:-
    • whether a child, intellectually impaired or not, is capable in law or in fact of consenting to medical treatment on his or her own behalf, and
    • if not the child lacked the capacity to consent, by reason of disability or minority, whether sterilisation is outside the scope of a parent to consent to on behalf of his or her child –

and the High Court gave much greater emphasis to the second issue.

30. In relation to the capacity of a child to consent, the High Court^[1] regarded Gillick’s case as persuasive authority and referred it, with apparent approval, as follows:-

19. […]The proposition endorsed by the majority in that case was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow and that this rate of development depends on the individual child. Lord Scarman said (29) ibid., at pp 183-184:

“Parental rights … do not wholly disappear until the age of majority. … But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.”

A minor is, according to this principle, capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (30) ibid., at p 189, and see pp 169, 194-195.

20. This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology (31)The psychological model developed by Piaget (Piaget and Inhelder, The Psychology of the Child, (1969)), one of the leading theorists in this area, suggests that the capacity to make an intelligent choice, involving the ability to consider different options and their consequences, generally appears in a child somewhere between the ages of 11 and 14. But again, even this is a generalisation. There is no guarantee that any particular child, at 14, is capable of giving informed consent nor that any particular ten year old cannot: see Morgan, “Controlling Minors’ Fertility”, [1986] MonashULawRw 10; (1986) 12 Monash University Law Review 161…

CONCLUSION

49. The overwhelming evidence of the parents and the doctors is the child has the requisite intelligence and understanding of the procedures involved to give his informed consent. Following the authority of Re Jamie, there is little more that the court can do than to declare the child Gillick competent.
50. I am satisfied that it is in the child’s best interests to make the declaration sought.