Focus on transgender rights 5: Re Alex
Re Alex concerned a 13 year old who in the eyes of the law and anatomically was a girl, but who had been diagnosed with gender dysphoria and identified as male.
The matter came before then Chief Justice Nicholson in the Family Court:
“No surgical intervention is sought or indeed contemplated by any of the parties or witnesses while Alex is under the age of at least 18 years.
” The key issue before me is whether I should authorise medical treatment involving the administration of hormonal therapies that will begin what is colloquially described as a “sex change” process. In order to reach this decision I must be firmly satisfied upon clear and convincing evidence that the proposed treatment is in Alex’s best interests…
“The application was brought by Alex’s legal guardian with a view to the commencement of treatment coinciding with Alex beginning secondary school. Alex wants the proposed treatment to start as soon as possible. All of the evidence before me supports such intervention. It indicates that hormonal treatment would be in Alex’s best interests and would benefit Alex’s mental and emotional health. Some differences emerged, however, among the experts as to the precise course and timing of the hormonal treatment.”
In authorising treatment, the court dealt at length with evidence about gender dysphoria, and the possible impacts on Alex if the treatment were commenced or not. The court went on to say:
“The proposed treatment is uniformly recommended by the expert witnesses. It is in keeping with Alex’s wishes and will facilitate his socialisation into his chosen identity from the outset of his secondary schooling. In the past, Alex has been depressed and self-harming when he has thought that his deep wish to present as male has not been taken seriously. Those who know him well are supportive of the treatment that is proposed and concerned about self-harming conduct if he is unable to embark on the proposed treatment….
“I have canvassed above the physical consequences arising from each stage of treatment and I am satisfied that Alex has the capacity and indeed does in fact know the side effects that may arise and further that he wishes the proposed treatment with knowledge of such risks. The social implications of the proposed treatment are that Alex will face challenges in his chosen identity in respect of peer relationships, possible bullying and ostracism, but I am satisfied that impressive steps have been taken to anticipate such risks.
“On the other side of the balance, if treatment is not permitted there is consistent concern that Alex will revert to unhappiness, behavioural difficulties at home and self-harming behaviour. Socially, he will be significantly ill at ease with body and self-image during his period of adolescent development until he is competent to make his own treatment decision. Transition into a male public identity will be more difficult than if it occurs at the commencement of secondary school….
” I would also be concerned that his education and residential arrangements and his developmental socialisation would be jeopardised to his long term detriment if authorisation of the proposed treatment were refused.
“One important risk that Alex himself understands is that he will need to continue the hormonal treatment and may as an adult wish to have further interventions, all of which will require payment. The evidence persuades me that appropriate arrangements are in place for any transfer of the medical management of his case, and that Alex will have access to the caregiver payments which his aunt has set aside for him to meet the costs of continued treatment after the Applicant’s guardianship comes to an end.”
The Human Rights and Equal Opportunities Commission supported the treatment. The court said:
“In its written submissions, the Commission said:
“3.8 …fundamental human rights are denied when lesbians, gay men and transgender people are not given equal protection without discrimination by the law, or are unable to express their identity through means such as identifying themselves to friends or neighbours, socialising together in public social venues, or openly cohabiting with a partner.
“Article 8(1) of the [Convention on the Rights of the Child] also provides children with the right to preserve their “identity”. The concept of “identity” is not defined in the [Convention], although three elements of identity are listed by way of example – nationality, name and family relations. Sexual identity and gender identity are arguably within the scope of Article 8(1)…” (footnotes omitted)
“The Commission then observed that there is no single definition of “transgender identity” but, referring to s 38A of the Anti-Discrimination Act 1977 (NSW), noted that the definition of transgender person there included a person “who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex”. The Commission described this definition as ‘inclusive’ in the sense that it is not restricted to persons who have undergone or wish to undergo medical or surgical treatment to reassign their gender . It was submitted that an ‘inclusive’ definition is to be preferred to a definition that draws a distinction between transgender persons who have undergone medical or surgical treatment and those who have not, and that this definitional approach “is in keeping with the sentiment” expressed by the Full Court in Re Kevin (Validity of marriage of transsexual) (No 2) …. The Full Court there posed what it termed the “rhetorical question” of why surgery should be a pre-requisite to establish the fact of a change of sex.
“The Commission’s submission continued:
“3.12 On the basis of the above, it is submitted that:
(a) A child has a right to live with a transgender identity, free from discrimination, under international human rights law;
(b) It is in the child’s ‘best interests’ to have that right respected;
(c) A child’s right to live with a transgender identity should not be limited by a narrow definition of ‘transgender identity’ that relies on medical or surgical intervention. There is a right to choose how that identity is expressed;
(d) It follows that respecting a child’s right to live with a transgender identity does not, of itself, decide the issue, one way or the other, of whether the authorisation of a medical procedure is in the child’s best interests. The latter is a separate yet contextually related question to be decided by the Court, based on its assessment of the child’s best interests, and taking into account the right of a child to express their wishes and to be heard…”
“I agree with the submission as a matter of general principle, and in the present case, it weighs in favour of authorisation as being in his best interests.
“I would however, add the following caveat to Commission’s submission – that it is necessary in each case where the wishes of a child or young person are seen to be significant, and not just medical procedure cases, to give careful consideration to the evidence and opinions concerning the bases for such wishes and the weight they should be accorded …”