Commission submissions: Alex
Legal
IN THE FAMILY COURT OF AUSTRALIA
(By Court Order the
File Number is suppressed)
RE ALEX: HORMONAL TREATMENT FOR
GENDER IDENTITY DYSPHORIA
SUBMISSIONS OF THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(INTERVENING)
1. ISSUES
1.1 On 15 January 2004,
the Family Court granted leave to the Human Rights and Equal Opportunity Commission
("the Commission") to intervene in these proceedings, pursuant to s 92 of the
Family Law Act 1975 (Cth) ("Family Law Act").
1.2 These proceedings commenced
as an application by the Applicant (a Government Department) seeking a declaration
under ss 67ZC(1) and (2) of the Family Law Act that the Secretary of the Applicant,
as legal guardian of the child Alex, is authorised to consent to certain medical
procedures on behalf of the child. These medical procedures include the administration
of oestrogen and progestogen to the child on a continuous basis until the child
turns 16; ongoing psychiatric assessment; and the further hearing of this matter
6 months before the child's 16th birthday to consider authorisation to the child
being treated with an LHRH analogue and testosterone. The treatment is sought
on the basis that two psychiatrists have diagnosed the child with 'gender dysphoria'
or 'gender identity disorder'.
1.3 The following issues
are addressed in these submissions:
(a) Can the child give
informed consent to the medical procedures? It is submitted that if this question
is answered affirmatively then this Court has no further role in this matter.(b) If the Court's authorisation
is required or sought for medical treatment, what considerations should the
Court take into account in determining what is in the 'best interests of the
child' for the purposes of s 67ZC(2) and in applying the criteria set out
in s 68F of the Family Law Act?
1.4 The human rights of
the child are relevant in determining both the question of competency to consent
as well as the question of what is in the 'best interests of the child' for
the purposes of s 67ZC(2) and in applying the criteria set out in s 68F of the
Family Law Act. It is therefore appropriate to consider these issues having
regard to the principles of international human rights law, as well as domestic
law. The focus of the Commission's submissions is on the rights of children
to express their wishes and make decisions within their competency, in the context
of their right to live with a transgender identity.
2. COMPETENCY OF THE CHILD TO CONSENT
TO MEDICAL TREATMENT
2.1 The law is clear that
a child can give legally informed and effective consent to medical treatment
in certain circumstances where they have a full understanding of the proposed
procedure.1 This is subject to specific legislation
in some jurisdictions which presumes that minors over a particular age are able
to make medical decisions for themselves.2
2.2 The law as stated in
Secretary, Department of Health and Community Services v J.W.B. and S.M.B.
("Re Marion") (1992) 175 CLR 218 and Gillick v. West Norfolk Area
Health Authority and Department of Health and Social Security [1986] A.C
112 ("Gillick's Case") is consistent with international law on the rights
of the child.3 The Convention on the Rights of the
Child ("CRC") provides that a child shall be provided the opportunity to be
heard in any legal proceedings affecting the child, and their views given due
weight in accordance with their age and maturity (Article 12).4
The CRC therefore promotes the right of children to make an informed decision;
attempts to ensure that appropriate information is provided to enable this decision
to be made; and requires that state parties respect these views and the reasons
for their formation.
2.3 Accordingly, the first
decision that must be made by the Court in this matter is whether the child
has achieved "a sufficient understanding and intelligence to enable him or her
to understand fully what is proposed."5
2.4 As a matter of law
(as well as a matter of fact) there is no fixed age at which a child can be
said to be able to give legally effective consent to medical treatment and it
will need to be determined on the facts of each case.6
The age at which a child will be able to give effective consent will be influenced,
inter alia, by the individual attributes of the child as well as the complexity
of the treatment issues involved.7 A child may be
competent to make some of their own medical decisions, but not competent to
make decisions about more complex procedures. For a child to be deemed competent,
it is submitted that they must have the ability to understand the nature of
the treatment, the risks and benefits, if any, and any alternatives to that
treatment.8 In Re A,9
Mushin J was satisfied on the evidence in relation to the 14 year old for whom
irreversible sex reassignment surgery was sought that:
"A understands the
problem and, in general terms, the way in which it is proposed that such problem
be resolved and further, the child has expressed a desire that such resolution
take place. However, I am not satisfied that A has sufficient capacity and
maturity to fully appreciate all aspects of the matter and to assess objectively
the various options available to him."
2.5 The general
position in Australia in relation to competent minors refusing medical
treatment is unclear. While the right of minors to consent to medical treatment
has been judicially recognised, their right to refuse treatment has not been
the subject of similar discussion. The position in England following the cases
of Re R10 and Re W11
is that a "Gillick competent" child is unable to refuse treatment, if such refusal
has the effect of overriding consent given by the guardian or the court. It
is submitted that this view should not be adopted in Australia. It is submitted
that the better view - and the view that is most consistent with Re Marion
and the principles of international law outlined above - is that a court has
no power to override either the informed consent or informed refusal of a competent
child to medical treatment, or, if it does have such a power, it should not
as a matter of discretion exercise that power except, perhaps, in extreme circumstances12
2.6 Accordingly, it is
possible that, on the facts of a particular case, a Court may find that a child
is competent to refuse treatment but lacks competency to consent to treatment
(or vice versa). This may occur where the treatment issues involved in having
the treatment are more complex than the treatment issues involved in refusing
it (or vice versa). It is submitted that, on principle, there is no reason why
a distinction of this sort cannot be drawn on the facts of a particular case.
2.7 In short, no presumptions
should be drawn as to the issue of whether any individual child of any particular
age can give informed consent to receive or refuse medical treatment and in
each case the issue will depend on the complexity of the treatment issues involved13
and "on the rate of development of each individual."14
2.8 It is submitted that
if this Court finds that the child has achieved "a sufficient understanding
and intelligence" to enable the child "to understand fully what is proposed".15
then this Court has no further role in this matter.
3. THE BEST INTERESTS OF THE CHILD
3.1 The international human
rights principles which bear upon the issues before the Court and to which the
Court ought have regard in determining the 'best interests of the child' are
set out in the CRC and the International Covenant on Civil and Political
Rights ("ICCPR"):16
(a) best interests of
the child principle - article 3(1) of the CRC;17(b) responsibilities,
rights and duties of legal guardians to provide appropriate guidance for the
child in the exercise by the child of their rights - article 5 of the CRC;18(c) right of the child
to maximum development - article 6(2) of the CRC;19(d) right of the child
to preserve their identity - article 8(1) of the CRC;20(e) right of the child
to be heard - article 12 of the CRC;21(f) guarantees of equality
before the law and non-discrimination in Articles 2(1) and 26 of the ICCPR;22
and(g) the recognition of
the inherent dignity and worth of the human person which underpins each of
the above rights.23
3.2 It is a long-established
principle that a statute is to be interpreted and applied, so far as its language
admits, in a manner which is consistent with established rules of international
law and which accords with Australia's treaty obligations.24
That approach is not limited in its application to ambiguous statutory provisions25
Rather, wherever the language of a statute is susceptible of a construction
which is consistent with the terms of the relevant international instrument
and the obligations which it imposes on Australia, that construction must prevail.26
3.3 Conversely, if the
Parliament intends to legislate inconsistently with Australia's international
obligations, it should express that intention clearly. Such a requirement does
not infringe upon the principle of Parliamentary supremacy. Rather, it contributes
to greater integrity in the legislative process by ensuring that Parliament
squarely confronts situations where proposed legislation breaches binding international
obligations, being obligations which the Executive has solemnly entered into
on behalf of Australia.
3.4 Section 67ZC of the
Family Law Act implements, in part, Australia's obligations under the CRC,27
which has as an underlying consideration 'the best interests of the child'.28
Where a provision of an international human rights instrument is transposed
into a statute, the prima facie legislative intention is that the transposed
text should bear the same meaning in the domestic statute as it bears in the
treaty.29 The same presumption applies where Parliament
has transposed only part of an international instrument, or where the relevant
domestic statute follows quite closely the language of the international treaty.30
3.5 Further, in construing
the provisions of an international human rights instrument, Australian courts
should and do give weight to the views of specialist international courts and
bodies such as the International Court of Justice, the European Court of Human
Rights31 and the human rights treaty bodies established
to supervise implementation by States parties of their obligations under the
provisions of particular human rights treaties.32
3.6 It is to be noted that
there is a similarity in the wording of Articles 2.1 and/or 26 of the ICCPR
(on which some reliance is placed in these submissions) and Article 14 of the
European Convention on Human Rights.33
Right of a child to live with a
transgender identity
3.7 Lesbians, gay men and
transgender people34 have fundamental human rights,
including freedom of expression,35 freedom of association,36
freedom from arbitrary interference in privacy and family life,37
guarantees of equality before the law and the entitlement to the equal protection
of the law without any discrimination.38 These
rights are increasingly recognised and protected in treaties and constitutional
guarantees,39 in the jurisprudence of the European
Court of Human Rights,40 and in communications
of the United Nations Human Rights Committee.41
3.8 Such 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.42
3.9 Article 8(1) of the
CRC also provides children with the right to preserve their "identity". The
concept of "identity" is not defined in the CRC, 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).43
The Meaning of 'Transgender Identity'
3.10 There appears to be
no single authoritative definition of 'transgender identity'. In the Anti-Discrimination
Act 1977 (NSW), s 38A, 'transgender person' is relevantly defined as a person:
(a) who identifies as
a member of the opposite sex by living, or seeking to live, as a member of
the opposite sex, or(b) who has identified
as a member of the opposite sex by living as a member of the opposite sex,
or(c) who, being of indeterminate
sex, identifies as a member of a particular sex by living as a member of that
sex.
3.11 This definition is
broadly consistent with the definitions in the anti-discrimination legislation
of most of the other states and territories.44
It is to be noted that this definition is '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 is submitted that an 'inclusive' definition
of this kind 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.45
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 (see paragraphs 3.13 to 3.23, below).
Right of a child to express their
wishes and right to be heard
3.13 A child has the right
to express their views freely and to have their views given due weight in accordance
with their age and maturity, and to be provided the opportunity to be heard
in any judicial proceedings affecting them, in accordance with the law.46
3.14 The CRC acknowledges
the obligation of parents or other persons legally responsible for a child to
take into account the adolescent's views, in accordance with their age and maturity
(Article 5), as they develop towards independent adulthood and self-determination.
The Committee on the Rights of the Child has stated that:
"The right to express
views freely and have them duly taken into account is also fundamental in
realising adolescents' right to health and development. In order for adolescents
to be able to safely and properly exercise this right, public authorities,
parents and other adults working with or for children need to create an environment
based on trust, information sharing, the capacity to listen and sound guidance
that is conducive for adolescents' participating equally in the decision making
processes."47
3.15 It is submitted that
a child's views as to whether they should have any medical treatment are essential,
useful and important.48 Overriding a child's autonomy
in respect of a medical procedure may be detrimental to the child, for the consent,
cooperation and participation of the patient/client are critical to the effectiveness
of any medical treatment.49
3.16 Section 68F(2)(a)
of the Family Law Act requires the court to take into account any wishes of
a child in respect of procedures in relation to the child's welfare, however
the child's wishes are to be given only such weight as the court considers appropriate,
and there is no obligation on the court to seek the child's views.50
3.17 A child's views have
a twofold relevance:
(a) they can assist the
court in deciding the issue of the child's capacity to give informed consent
itself (see paragraphs 2.1 to 2.8 above); and(b) they convey to the
court the wishes of the child in respect of their own life. The views of a
child who is not "Gillick competent" may be of considerable assistance in
difficult cases to both family and decision-makers; the fact that the child's
views are respected and taken into account may be of great benefit to the
child in its relationship with family and decision-makers.51
What are the child's wishes?
3.18 The common theme that
emerges from the medical evidence is that the child wishes to live as a boy:
- "she has insisted
on the desire to be male and use the male toilets" - affidavit of Dr N. - Alex "is a bright, engaging,
biologically normal 12 year old girl who has a strong persistent, longstanding
desire and belief to live life as a male." - affidavit of Associate Professor
P. - "She has repeatedly
stated her desire to be a boy and has behaved as such, going to boys toilets,
dressing in boys clothing, boys hairstyle and boys games and activities."
- affidavit of Associate Professor P.
3.19 The medical evidence
also suggests that the child wants to stop menstruating and to "maintain a masculine
appearance":
- "Her main preoccupations
are with unwanted breast development and menstruation and her desire to maintain
a masculine appearance" - affidavit of Dr N. - "She wishes to have
her menses suppressed" - affidavit of Dr W. - "she feels angry and
cheated that her body is female and angry that she has periods" - affidavit
of Associate Professor P.
3.20 This has led the relevant
medical witnesses to broadly agree with the conclusion of Dr W that the child
"wishes to make a physical transition with medical help to become a male" -
affidavit of Dr W.
3.21 Ultimately, the determination
of the precise content of the child's wishes is one for the Court itself, on
its assessment of the facts.52
3.22 It is submitted that
the Court should give due weight to the child's wishes (as it construes them)
in its assessment of the child's 'best interests'.
Best Interests Generally
3.23 In determining this
matter, the Court should also have regard to the psychological and social implications
for the child of authorising or not authorising the proposed procedure, as well
as the nature and degree of any risk, psychologically or physically, to the
child of authorising or not authorising the proposed procedure.53
Dated: 4 March 2004
1. Secretary,
Department of Health and Community Services v J.W.B. and S.M.B. ("Re
Marion") (1992) 175 CLR 218, especially at pp. 237-238, 315-317; Gillick
v. West Norfolk Area Health Authority and Department of Health and Social Security
[1986] A.C 112 especially at pp.169, 186.
2. Minors Property and Contracts Act 1970 (NSW); Consent
to Medical Treatment and Palliative Care Act 1995 (SA).
3. See Article 12 of the Convention on the Rights of the
Child ("CRC"). The CRC was adopted by the United Nations General Assembly
on 20 November 1989. Australia ratified the CRC on 17 December 1990 and it came
into effect for Australia on 16 January 1991. The CRC applies to all people
below the age of eighteen years within the Australian jurisdiction.
4. Article 12(1): States Parties shall assure
to the child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.
Article 12(2): For this purpose, the child shall in particular
be provided the opportunity to he heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
5. Gillick's case, at pp.183-184, as followed in Re
Marion at p. 237.
6. Re Marion, at pp. 237-238.
7. See Re Marion, at pp.237-238 (see especially footnote
74) and at pp. 295-296; Graeme Austin, "Righting a child's right to refuse medical
treatment: Section 11 of the New Zealand Bill of Rights Act and the Gillick
competent child", Otago Law Review (1992) Vol 7 No 4 at pp. 592-593 and
the authorities and references cited.
8. See Leanne Bunney, "The Capacity of Competent Minors to Consent
to and Refuse Medical Treatment", (1997) 5 JLM 81 at pp. 59-60.
9. [1993] FLC 92-402 at 80,115.
10. [1991] 3 WLR 592.
11. [1992] 3 WLR 758.
12. See Austin, op.cit, pp. 586, 589-591, Re R [1991]
3 WLR 592, at p. 28, Re Marion, at pp. 237-238.
13. See Re Marion, at pp. 237-238 (see especially footnote
74 therein) and at pp. 295-296; Austin, op.cit, at pp. 592-593 and the authorities
and references cited.
14. Re Marion, at p. 239.
15. Gillicks Case, at pp.183-184, as followed in Re
Marion at p.237.
16. ICCPR (opened for signature 16 December 1966, 999 United
Nations Treaty Series 171; entered into force 23 March 1976 except article 41
which came into force 28 March 1979; ratified by Australia 13 August 1980 except
article 41 which was ratified by Australia 28 January 1993), and CRC (opened
for signature 20 November 1989, 1577 United Nations Treaty Series 3; entered
into force 2 September 1990; ratified by Australia 17 December 1990; declared
an international instrument for the purposes of s 47(1) of the Human Rights
and Equal Opportunity Act 1986 (Cth) on 22 December 1992; gazetted 3 January
1993) (see s 3 HREOC Act). Australia is a party to the First Optional Protocol
to the ICCPR (opened for signature 16 December 1966, 999 United Nations Treaty
Series 302 (entered into force 23 March 1976, acceded to by Australia 25 December
1991)), which provides for complaints of violations of the ICCPR to be made
to the United Nations Human Rights Committee (see articles 2 and 5 of the First
Optional Protocol to the ICCPR).
17. Article 3(1): In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
18. Article 5: States parties shall respect
the responsibilities, rights and duties of parents or, where applicable, the
members of the extended family or community as provided for by local custom,
legal guardians or other persons legally responsible for the child, to provide,
in a manner consistent with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the rights recognized
in the present Convention.
19. Article 6(2): States parties shall ensure
to the maximum extent possible the survival and development of the child.
20. Article 8(1): States parties undertake
to respect the right of the child to preserve his or her identity, including
nationality, name and family relations as recognised by law without unlawful
interference.
21. Article 12(1): States Parties shall assure
to the child who is capable of forming his or her own views the right to express
those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.
Article 12(2): For this purpose, the child shall in particular
be provided the opportunity to he heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
22. Article 2(1): Each State Party to the
present Covenant undertakes to respect and to ensure all individuals within
its territory and subject to its jurisdiction the rights recognised in the present
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status. Article 26: All persons are equal before the
law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
23. See the Preamble to the Charter of the United Nations
which states that the peoples of the United Nations have determined: ".to reaffirm
faith in fundamental human rights, in the dignity and worth of the human person,
in the equal rights of men and women and of nations large and small"; the Preamble
to the Universal Declaration of Human Rights ("UDHR") which provides
that: "[w]hereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world" and Article 1 of the UDHR which states that: "[a]ll
human beings are born free and equal in dignity and rights."; and the Preambles
to both the ICCPR and the International Covenant on Economic, Social and
Cultural Rights ("ICESCR") which state that: ".in accordance with the principles
proclaimed in the Charter of the United Nations , recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world".
24. Jumbunna Coal Mine NL v Victorian Coal Miners' Association
(1908) 6 CLR 309 at 363; Chu Kheng Lim v Minister for Immigration (1992)
176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the
Interpretation of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation
In Australia (5th ed. 2001) at [5.14].
25. See eg Brown v Classification Review Board (1998)
154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms [2000]
2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle
is confined to ambiguous statutory provisions, the concept of 'ambiguity' in
this context is construed broadly: Minister for Immigration and Ethnic Affairs
v Teoh (1995) 183 CLR 273 at 287.
26. Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v
Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ; Spigelman,
'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review
141 at 149.
27. B and B v Minister for Immigration and Multicultural
and Indigenous Affairs (2003) 173 FLR 360.
28. Article 3(1) of the CRC provides that 'the best interests
of the child shall be a primary consideration'.
29. Applicant A v Minister for Immigration and Ethnic Affairs
(1997) 190 CLR 225 at 230-31 per Brennan CJ.
30. De L v Director General, NSW Department of Community
Services (1996) 187 CLR 640 at 675 per Kirby J.
31. For example Dietrich v The Queen (1992) 177 CLR
292 at 306 per Mason CJ and McHugh J; John Fairfax Publications v Doe
(1995) 37 NSWLR 81 at 90 per Gleeson CJ; Applicant A and Another v Minister
for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 253-255
per HcHugh J; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at
213-214 per Kirby J.
32. See as examples of references to the jurisprudence of human
rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42
per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen
(1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson
(2000) 174 ALR 655 at 665 para [38] per Kirby J.
33. Article 14 of the ECHR provides that: "The enjoyment of
the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national
minority, property, birth or other status."
34. While issues of sexuality and gender identity are not identical,
the jurisprudence in the area has often used the terminology interchangeably.
The jurisprudence on sexuality is of some guidance in the consideration of transgender
issues.
35. Article 19 Universal Declaration of Human Rights ("UDHR");
article 19 ICCPR.
36. Article 20(1) UDHR; article 22 ICCPR.
37. Article 12 UDHR; article 17 ICCPR.
38. Article 26 ICCPR.
39. Sexual orientation is an enumerated ground in the anti-discrimination
provisions of the 1997 Treaty of Amsterdam and in the Charter of Fundamental
Rights of the European Union, 2000 O.J (C364) 1, Article 21(1). The Constitution
of South Africa 1996 expressly includes sexual orientation under its equality
guarantee in article 9(3). In Egan v Canada [1995] 2 SCR 513, the Supreme
Court of Canada held sexual orientation to be an analogous ground under the
equality provision, sec 15(1), of the Canadian Charter of Rights and Freedoms.
40. Mouta v Portugal (2001) 31 EHRR 47; [2001] 1 FCR
653 (finding a breach of articles 8 and 14 of the European Convention on
the Protection of Human Rights and Fundamental Freedoms ("European Convention")
in combination, where a gay man, by virtue of his sexual orientation was denied
custody of his child); Goodwin v United Kingdom (2002) 35 EHRR 18; [2002]
2 FCR 577 (finding a breach of articles 8 and 14, in combination, and of article
12, where a male to female transsexual was unable to change her legal status,
including her birth certificate, or to marry a partner of the same sex as her
birth sex); I v United Kingdom [2002] 2 FLR 518 (finding a breach of
articles 8 and 14, in combination, and of article 12, where a male to female
transsexual was unable to change her legal status or marry).
41. See Young v Australia, Communication No 941/2000
(18 September 2003) (finding a violation of article 26 of the ICCPR by Australia
in denying a pension on the basis of sex or sexual orientation); Toonen v
Australia, Communication No 488/1992 (31 March 1992).
42. See Appellant S395/2002 v Minister for Immigration and
Multicultural Affairs; Appellant S396/2002 v Minister of Immigration and Multicultural
Affairs (2003) 203 ALR 112 at para 44 per McHugh and Kirby JJ and para 81
per Gummow and Hayne JJ. See also, In Attorney-General (Cth) v "Kevin and
Jennifer" [2003] Fam CA 94, where the Full Court of the Family Court held
that it was open to the trial judge to find that "Kevin" (a female to male transgender
person), was a man at the time of the marriage for the purposes of the Marriage
Act 1961 (Cth). At [379] the Court said: "The weight of international legal
developments points strongly in a similar direction. There is widespread statutory
recognition of transsexual persons as "man" or "woman" (as the case may be)
for the purposes of criminal and social service law. The laws of a number of
Australian states permit the alteration of birth certificates to recognise the
position of transsexual persons. The acceptance of such a position provides
consistency, in Australia at least, with case law outside the area of marriage."
43. See Douglas Hodgson, "The International Protection of the
Child's Right to a Legal Identity and the Problem of Statelessness", International
Journal of Law and the Family 7 (1993) 255-270 at p. 265.
44. See Equal Opportunity Act 1995 (Vic), s 6 ('gender
identity', defined in s 4 as: "(a) the identification on a bona fide basis
by a person of one sex as a member of the other sex (whether or not the person
is recognised as such) - (i) by assuming characteristics of the other sex, whether
by means of medical intervention, style of dressing or otherwise; or (ii) by
living, or seeking to live, as a member of the other sex; or (b) the identification
on a bona fide basis by a person of indeterminate sex as a member of a particular
sex (whether or not the person is recognised as such)-(i) by assuming characteristics
of that sex, whether by means of medical intervention, style of dressing or
otherwise; or (ii) by living, or seeking to live, as a member of that sex");
Anti-Discrimination Act 1991 (Qld), s 7(m) ('gender identity', defined
in the Schedule - Dictionary as: "Identifies or has identified as a member
of opposite sex by living or seeking to live as a member of that sex");
Discrimination Act 1991 (ACT) s 7(c) ('transsexuality', defined in Dictionary
as "a person of one sex who (a) assumes the bodily characteristics of the
other sex, whether by means of medical intervention or otherwise; or (b) identifies
himself or herself as a member of the other sex or lives, or seeks to live,
as a member of that other sex"); Equal Opportunity Act 1984 (SA),
s 29 ("sexuality" which includes 'transsexuality', defined in section 7 as:
"'transexual' means a person of the one sex who assumes characteristics of
the other sex"); Anti-Discrimination Act 1998 (Tas), s 16 ("sexual
orientation" which includes 'transsexuality', defined in s 3 as: "'transsexual'
means a person of one sex who (a) assumes the bodily characteristics of the
other sex by medical or other means; or (b) identifies himself or herself as
a member of the other sex; or (c) lives or seeks to live as a member of the
other sex"); Equal Opportunity Act 1984 (WA) s 35AB ("gender history"
defined in s 35AA as: "a person has a gender history if the person identifies
as a member of the opposite sex by living, or seeking to live, as a member of
the opposite sex. "opposite sex" means a sex of which the person was not a member
at birth"); Anti-Discrimination Act 1998 (NT) s 19 ("sexuality",
which is defined in s 4 to include transexuality).
45. An "inclusive" definition is also in keeping with the sentiment
expressed by the Full Court of the Family Court in Attorney-General (Cth)
v "Kevin and Jennifer" [2003] Fam CA 94 at [382]-384]: "This leaves the
more difficult question of the position of pre-operative transsexual persons.
As we have said, this case does not require us to determine this question. In
all of the decided cases to which we have referred their position has been distinguished
from post-operative transsexual persons and comments have been made to the effect
that this is a matter for parliament to determine. If one accepts the argument
of Ms Wallbank and the evidence given in this case, Kevin has always perceived
himself to be a man. One then asks the rhetorical question as to why he must
subject himself to radical and painful surgery to establish this fact." It
is of note that on the facts of Attorney-General (Cth) v "Kevin and Jennifer"
itself, the right of Kevin to marry as a "man" was granted despite his not having
had full reassignment surgery. See also, Andrew Sharpe, 'Thinking Critically
in Moments of Transgender Law Reform: Kevin and Jennifer v A-G for the Commonwealth"
(2002) 11 Griffith Law Review 309.
46. Article 12, CRC.
47. Committee on the Rights of the Child, General Comment
No.4 (2003), "Adolescent health and development in the context of the Convention
on the Rights of the Child", para 8; see also para 4: "The Committee understands
the concepts of 'health and development' more broadly than being strictly limited
to the provisions defined in articles 6 (right to life, survival and development)
and 24 (right to health)."
48. See Article 12 of the CRC; In the Matter of P. Y. and
J. Y. (1993) 14 Human Rights Law Journal 280, at p.282; Toohey
v. Metropolitan Police Commissioner [1965] A.C. 595, at p. 607; Re Grady
(1981) N.J. 426 A.2d 467, at p. 482; Matter of Terwilliger (1982) Pa.Super.,
450 A. 2d 1376, at p.1383.
49. See Christine M. Hanisco, "Acknowledging the Hypocrisy:
Granting Minors the Right to Choose their Medical Treatment", New York Law
School Journal of Human Rights Volume 16 No. 3 Summer 2000, pp. 899-932,
at p.921: "Critical to successful medical treatment is the consent, cooperation,
and participation of the patient. The medical community, as well as some legal
scholars, have realized that minors should be allowed to participate in determining
what course their medical treatment should take and that minors are in fact
capable of doing so."
50. The most relevant Australian cases on this point are the
sterilization cases heard in the Family Court, although they all involved children
with severe communication difficulties, for example, Re Jane (1988) 94
F.L.R. I, Re a Teenager (1988) 94 F.L.R. 181, In re Elizabeth
(1989) 13 Fam. L.R. 47, Re MM Unreported, Family Court of Australia,
Warnick J., 26 November 1993, Re Marion [No.2] Unreported, Family Court
of Australia, Nicholson C.J., Date of Judgment 1 May 1992 - Date judgment published
21 January 1994, (1992) F.L.C. 92-318, In re S (1989) 13 Fam. L.R. 660.
However, it was only in Re Marion [No.2] that the child's views were
sought out and taken into account by the Court.
51. See generally: Re Grady (1981) NJ 426 A.2d 467 and
Matter of Terwilliger (1982) Pa.Super., 450 A.2d 1376, at p.1383.
52. In the ordinary course the appropriate way for the child
to express their views to the Court is through the child's separate representative.
Those views may also need to be obtained with or through the assistance and
involvement of persons other than the separate representative: see Gillick's
Case, especially at pp. 174, 189; Austin, op.cit, at pp. 593-594.
53. P and P [1995] FLC 92-615 at 82,151.
Last
updated 20 April 2004.