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Complaints

Re: Bernadette (2008)

Legal

Re: Bernadette (2008)

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Family Court of Australia

Parramatta Registry

No PAF 1057/2005

BETWEEN

THE FATHER AND THE MOTHER

Applicants

AND

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES

Intervener

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Intervener

LEGAL AID NSW

Independent Children’s Lawyer

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

3 January 2008

1 Background

1.1 On 7 March 2006, the Family Court of Australia granted leave to the Human Rights and Equal Opportunity Commission (HREOC) to intervene in these proceedings pursuant to s 92 of the Family Law Act 1975 (Cth) (‘Family Law Act’).

1.2 The proceedings were commenced by The Father and The Mother (‘the applicants’) who are the parents of Bernadette. Bernadette was born in 1992 and was 13 years of age when the Application for Final Orders was filed in the Family Court by her parents on 25 June 2005. Bernadette’s birth certificate identifies her as male and she is undergoing hormonal treatment in order to affirm her female sex.

1.3 An amended Application for Final Orders filed by the applicants on 8 August 2006 sought, amongst other things, a declaration that the applicants “may lawfully authorise the treatment of [Bernadette] in respect of the condition of transsexualism (also called gender identity disorder (‘GID’), gender dysphoria and gender identity dysphoria) and for that purpose provide all authorities and consents necessary for such treatment”.

1.4 An amended Application in a Case was also filed by the applicants on 8 August 2006. This seeks the determination of a number of questions of law including the following:

Does the parent of a child have the authority (whether as an incidence of parental responsibility pursuant to the Family Law Act 1975(Cth) and/or otherwise) to lawfully authorise the treatment of the said child in relation to the condition of transsexualism (also called gender identity disorder, gender dypshoria and gender identity dysphoria) without an order of a Court;...

1.5 The treatment the subject of paragraph 1.4 is:

  • the administration of gonadotrophin releasing hormone analogue (GnRHa) at an early stage of pubertal development (known as Tanner Stage 2) to suppress the onset of puberty in conjunction with ongoing psychiatric assessment and treatment (Stage 1 or Phase 1 treatment); and
  • the administration of cross sex hormones (estrogen in an adolescent seeking affirmation in the female sex and testosterone in an adolescent seeking affirmation in the male sex) after the young person has turned 16 years of age to induce the physical characteristics of the affirmed sex (Stage 2 or Phase 2 treatment).

1.6 HREOC submits that the principles identified by the High Court in Secretary, Department of Health and Community Services v JWB and SMB[1] (‘Marion’s case’) must be applied in this case. The majority judgment made clear that the overriding criterion of the child’s best interests is itself a limit on parental power.[2] The best interests principle is also the Family Court’s paramount consideration when exercising its welfare jurisdiction.[3] Therefore, in HREOC’s submission, the best interests principle must be the perspective from which the following questions need to be answered by the Court in order to determine the question of law raised in 1.4:

(a) Is transsexualism a condition that requires treatment (also referred to by the majority as ‘malfunction or disease’) and, if so,

(b) Is the proposed treatment in this case appropriately carried out to treat the condition?[4]

 

If the answers to (a) and (b) are yes, then the decision would normally be within the ordinary scope of parental authority. However, the overriding criterion of the best interests of the child as explained by the majority in Marion’s case also require that the Court consider the following:

 

(c) Are there other factors involved in a decision to authorise the treatment proposed in this case that mark out that decision as a special case. Such factors may include, but are not limited to, the following:[5]

(i) the invasiveness and irreversibility of the treatment;

(ii) whether there is a significant risk of making the wrong decision, either as to the child’s present or future capacity to consent or about the best interests of a child who cannot consent; and

(iii) the gravity of the consequences of making a wrong decision about the matters raised in (ii).

If these or other factors particular to the decision to authorise the treatment proposed in this case satisfy the Court that it is a special case, then the decision is not within the ordinary scope of parental authority and Court authorisation is required.

1.7 An issue that is not addressed in the questions of law outlined in the applicants’ amended Application in a Case filed on 8 August 2006, but is relevant to any final orders that may be made, is whether a person under the age of 18 years has the legal capacity to authorise the treatment themselves. Consideration of this question is a necessary first step.

1.8 The question of law outlined in paragraph 1.4 also indicates that the applicants seek orders that go beyond the particular circumstances of Bernadette and would have application to all young people who seek treatment for transsexualism in Australia. The orders sought will have implications for young people who are seeking to be affirmed in their female sex, as in Bernadette’s case, and potentially for young people who are seeking to be affirmed in their male sex. HREOC submits that orders in such general terms should not be made, and the judgment of the Court should recognise that each case must be considered on its own particular circumstances. This issue is expanded upon in paragraphs 5.4-5.8 below.[6]

2 Issues addressed by HREOC

2.1 HREOC seeks to address the following issues on the basis that they may assist the Court in considering the questions outlined at paragraph 1.6 above:

  • The overriding criterion of the best interests of the child that must be applied in these proceedings.
  • Limits on the decision making power of children/young people and parents to consent to medical treatment.
  • The legal standard of proof that must be applied to these proceedings.
  • Considerations relevant to whether transsexualism is a condition that requires treatment.
  • Considerations relevant to whether the proposed treatment appropriate in order to treat the condition.
  • Whether there are other factors relevant to the proposed treatment of transsexualism that mark out the decision to authorise such treatment as a special case?

2.2 HREOC has sought to assist the Court by providing a summary of the evidence where it is relevant to these matters. However, these submissions focus on the proper legal tests to apply in deciding whether to limit parental power to consent to the treatment regime proposed for transsexualism. Whilst HREOC provides its view where possible, the application of these tests to the facts of this case is of course a question for the Court.





3 Best interests of the child

3.1 The question raised by these proceedings is whether consent for Stage 1 and Stage 2 treatment is medical treatment that falls within the scope of parental power or whether it is medical treatment that may only be lawfully authorised by a court.

3.2 The Family Court’s power to intervene and authorise certain medical treatment for minors arises from s 67ZC of the Family Law Act which invests the Court with the power to make orders concerning the welfare of children of a marriage. In making an order pursuant to its welfare power, the court must give ‘paramount consideration to the best interests of the child’.[7] This reflects Australia’s obligations under Article 3(1) of the Convention on the Rights of the Child (‘CRC’).[8]

3.3 The best interests of the child principle must be the overriding criterion in the deliberations of the Court pursuant to its welfare power. As Warnick J observed in L and GM v MM:[9]

...the "best interests of the child" is not a value or consideration which sits amongst the pertinent facts and values in a child welfare case. It is the perspective from which all other facts and values must be viewed. It is not part of the evidence and considerations which fall for deliberation, it is the legal principle which provides the focus of the deliberation.

 

4 Capacity to consent

 

Limits on decision-making powers of children

 

4.1 As noted at 1.7 above, a necessary first step in any matter in which a person under the age of 18 years seeks medical treatment is whether that person has the legal capacity to authorise the treatment themselves. In the present case, the applicants have not asserted that Bernadette is able to consent to the proposed treatment. For completeness, however, HREOC notes the following.

4.2 The law is clear that a child can give effective legal consent to medical treatment in certain circumstances where they have a full understanding of the proposed procedure.[10] 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.[11]

4.3 The question of whether a child has capacity to authorise treatment can only be determined in the circumstances of a particular case as it requires a careful assessment of matters that are personal to the young person in question, such as their level of maturity, their ability to understand the nature of the treatment, the risks, benefits and any alternatives to that treatment.[12]

4.4 This approach is consistent with the CRC which 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.[13] The CRC specifically promotes the right of the child to express his or her views about proposed medical treatment and to have those views taken into account.[14]

4.5 In Re Alex,[15] doubt was expressed that a child can ever provide informed consent for treatment of transsexualism.[16] Nevertheless, HREOC submits that regardless of the outcome of this case and the determination of the question of law noted in paragraph 1.4, in each case an assessment will need to be made of the young person’s capacity to consent to the treatment proposed. If the young person is able to provide informed consent for the treatment, then neither the Court, nor the parent/s of the young person, would have any further role in this matter.

Limits on the decision-making of parents

4.6 When a child does not have capacity to consent to medical treatment, the power to consent to medical treatment on behalf of the child will usually fall within the ordinary scope of parental responsibility.[17] Parental power to consent to certain medical treatment is also recognised in some jurisdictions and is dependant on the age of the child.[18] This is consistent with article 5[19] and article 18(1)[20] of the CRC which recognise the primary role of parents or legal guardians in securing the best interests of the child.

4.7 However, the Courts have also recognised the limits of parental power to consent to the performance of medical treatment on their children. Notably, in Marion’s case the majority of the High Court observed that ‘the overriding criterion of the child’s best interests is itself a limit on parental power’.[21]

4.8 The CRC also recognises that the scope of parental responsibility to make decisions on behalf a child who does not have the capacity to make those decisions by him or herself is not absolute. Under article 3(2) of the CRC, States have an unqualified obligation to ‘ensure the child such protection and care as is necessary for his or her well being’. [22] Fulfilling this obligation may, in certain circumstances, require the State to exercise decision-making powers in relation to the child’s well-being without the agreement of the child’s parents.[23]

5 Standard of proof

5.1 In Australian law, the normal civil standard of proof applies and the standard of evidence required to satisfy a decision-maker will vary depending on the nature of what is sought to be proved by a party.[24]

5.2 The ‘strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove’.[25] In cases involving a more serious question, evidence of a higher degree of probative value is needed for a decision-maker to attain the requisite degree that the issue has been proved.[26]

5.3 In considering whether the evidence in this case is sufficient to reasonably satisfy the Court that the decision to authorise Stage 1 and/or Stage 2 treatment is within parental power, the gravity of the consequences flowing from such a finding must be considered.[27]

5.4 In this case, one of the consequences that may flow from a finding that the power to authorise the treatment proposed falls within the ordinary scope of parental authority is the potentially broad application of that principle to all young people within Australia who experience transsexualism.

5.5 The applicants are seeking this outcome on the basis that it is in the best interests of young people who experience transsexualism. However, HREOC submits that the Court should recognise that the careful assessment and treatment processes available to Bernadette in this case may not be available to other young people seeking treatment for transsexualism.[28]

5.6 It is submitted that the Court should take great care not to make an order with unintentionally broad application to certain circumstances or treatment regimes that were not considered in these proceedings. In particular, the Court’s attention is drawn to:

  • (a) The possibility that other young people who experience transsexualism may not always have the benefit of the supportive family environment experienced by Bernadette. The circumstances outlined in the recent decision of Re Brodie[29]provide an example of a case where the parents of the young person wishing to undergo treatment for transsexualism disagree about whether the treatment should be provided. It is also possible to envisage circumstances where a child is in conflict about the treatment with both parents (or single parent depending on the family’s circumstances).
  • (b) The possibility that a finding that treatment for transsexualism falls within the ordinary scope of parental authority may have the legal consequence that it is within parental responsibility to consent to treatment irrespective of whether the treatment proposed is treatment of the kind described in this case and supported by the expert evidence.

Should Stage 1 and Stage 2 be considered separately or as one treatment regime?

5.7 The gravity of the consequences flowing from a general finding that the decision to authorise treatment for transsexualism falls within the ordinary scope of parental authority would also appear to differ depending on whether the Court is considering whether parents have the power to consent to:

  • Stage 1 treatment, including the effects of the treatment,[30] or
  • Stage 2 treatment, including the effects of the treatment,[31] or
  • both Stage 1 and Stage 2 as one treatment regime.

5.8 Whether Stage 1 and Stage 2 treatment should be viewed separately or as part of a ‘single package’ has been considered in other cases.[32] In the present case, it is submitted that it would be open to the Court to view Stage 1 and Stage 2 separately given the evidence to the effect that Stage 1 treatment is considered to be a diagnostic phase[33] and that it is only after ongoing assessment and consultation with a treating team that the commencement of Stage 2 treatment is considered after a person turns 16 years of age.[34] This approach also recognises that not all children diagnosed with GID will become adolescents or adults with transsexualism[35] and, importantly, provides a person undergoing Stage 1 treatment an opportunity to change their mind.[36]



6 Is transsexualism a condition that requires treatment?

6.1 The majority in Marion’s case appear to use the language of ‘malfunction or disease’ as a way of providing further clarity to the distinction between 'therapeutic’ and ‘non-therapeutic’ treatment.[37] In many circumstances, parental consent, or that of a legal guardian, will be legally effective when the treatment is ‘appropriately carried out to treat some malfunction or disease’. [38] This will be the case even if a by-product of the treatment is sterilisation[39] or another potentially serious consequence.

6.2 Expert evidence was led in this case about the nature of the condition of transsexualism.[40] The nature and causes of transsexualism have also been considered in other Australian cases[41] as well as overseas jurisdictions.[42]

6.3 These matters are relevant to whether this Court is satisfied to the requisite degree that transsexualism is a condition that requires treatment.[43]

Evidence about the nature of the condition

6.4 The evidence provided to the Court indicated that the cause of the condition of transsexualism is unclear.[44] Some witnesses agreed that transsexualism may have a biological cause[45] that is due to genetic and endocrine influences on the brain at critical stages of development during gestation.[46] Professor D considers this a “variation of life”[47] and agreed that an individual who experiences the sexual differentiation of their brain as being different to that of their body would experience that situation as a malfunction.[48]

6.5 Other experts acknowledged that the cause of transsexualism remains uncertain[49] and there continues to be debate within the medical community about whether transsexualism has a biological basis or results from mental illness.[50] None of the expert witnesses expressed a view that mental illness was a satisfactory explanation for the condition of transsexualism[51] and some witnesses were highly critical of attempts to treat transexualism as a mental illness.[52] For example, Dr K expressed the view that by “not treating [people with transsexualism] medically we are creating a mental illness, not starting with a mental illness that we need to find some way of treating medically”.[53]

6.6 Some of the witnesses were of the view that where the signs of transsexualism are seen early in a child’s life and the presentation is clear cut and consistent overtime this supports the likelihood that transsexualism is a biological condition.[54] However, not all children who present with gender dysphoria go on to become adolescents or adults with transsexualism.[55]

6.7 The evidence also indicated that a reliable diagnosis of GID /transsexualism in an adolescent can only be made after the exclusion of other conditions that can present as gender dysphoria including transvestism, disorders of sexual identity, conflict around sexual orientation and psychotic illness.[56]

6.8 Currently, a diagnosis of GID by two psychiatrists within the terms of the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (‘DSM-IV’) is required before treatment can be considered.

6.9 The DSM-IV outlines the diagnostic criteria for GID as follows:

  1. A strong persistent cross-gender identification (not merely a desire for any perceived cultural advantages of being the other sex). In children, the disturbance is manifested by four (or more) of the following:

(1) repeatedly stated desire to be, or insistence that he or she is, the other sex.

(2) in boys, preference for cross-dressing or simulating female attire; In girls, insistence on wearing only stereotypical masculine clothing.

(3) strong and persistent preferences for cross-sex roles in make believe play or persistent fantasies of being the other sex.

(4) intense desire to participate in the stereotypical games and pastimes of the other sex.

(5) strong preference for playmates of the other sex.

In adolescents and adults, the disturbance is manifested by symptoms such as a stated desire to be the other sex, frequent passing as the other sex, desire to live or be treated as the other sex, or the conviction that he or she has the typical feelings and reactions of the other sex.

  1. Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex. In children, the disturbance is manifested by any of the following: In boys, assertion that his penis or testes are disgusting or will disappear or assertion that it would be better not to have a penis, or aversion toward rough-and-tumble play and rejection of male stereotypical toys, games, and activities; in girls, rejection of urinating in a sitting position, assertion that she has or will grow a penis, or assertion that she does not want to grow breasts or menstruate, or marked aversion toward normative feminine clothing.

In adolescents and adults, the disturbance is manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics (e.g., request for hormones, surgery, or other procedures to physically alter sexual characteristics to simulate the other sex) or belief that he or she was born the wrong sex.

  1. The disturbance is not concurrent with physical intersex condition.
  1. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.





Other cases

6.10 In Re Alex, Nicholson CJ outlined the expert evidence provided in that case concerning the nature and cause of transsexualism[57] and concluded that ‘the current state of knowledge would not, in my view, enable a finding that the treatment would clearly be for a ‘malfunction’ or ‘disease’ and thereby not within the jurisdiction of this Court as explained by the majority in Marion’s case’.[58] In His Honour’s view, the majority of the High Court in Marion’s case were seeking to:

 

distinguish medical treatment which seeks to address disease in or malfunctioning of organs. In the context of sterilization for example, they would seem to have had in mind a malignant cancer of the reproductive system which required an intervention that was medically indicated for directly referable health reasons. The present case does not lend itself to such a comparison. [59]

 

6.11 It is submitted that there is no reason to understand ‘malfunction’ as being limited in the way suggested in Re Alex. In Marion’s case, the majority was comparing sterilisation that results as a by-product of surgery performed ‘to cure a disease or correct some malfunction’ with surgery in relation to which sterilisation is the aim of the procedure rather than a by-product. The principle that arises from the comparison made by the majority is, with respect, equally applicable to other medical treatment, such as treatment for transsexualism, whether or not that treatment seeks to address ‘malfunctioning of organs’.

6.12 ‘Malfunction’ should, it is submitted, be understood in accordance with its plain and ordinary meaning.[60] This was the approach taken, albeit in a different statutory context, by the Victorian Civil and Administrative Tribunal in a disability discrimination case which held that transsexualism was a ‘malfunction of a part of a body’ for the purposes of the definition of impairment in the relevant legislation.[61]

6.13 The European Court of Human Rights (‘ECHR’) has also considered medical evidence about the basis of transsexualism in the case of I v The United Kingdom. [62] That case concerned alleged breaches of the Convention for the Protection of Human Rights and Fundamental Freedoms[63]in respect of the (adult) applicant’s complaint about the lack of legal recognition of her post-operative sex and about the legal status of transsexuals in the United Kingdom. The Court noted that:[64]

It remains the case that there are no conclusive findings as to the cause of transsexualism and, in particular, whether it is wholly psychological or associated with physical differentiation in the brain. The expert evidence in the domestic case of Bellinger -v- Bellinger was found to indicate a growing acceptance of findings of sexual differences in the brain that are determined pre-natally, though scientific proof for the theory was far from complete. The Court considers it more significant however that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with "gender identity disorder"; see also the International Classification of Diseases, tenth edition (ICD-10)).

 

The United Kingdom national health service, in common with the vast majority of Contracting States, acknowledges the existence of the condition and provides or permits treatment, including irreversible surgery. The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance.

 

 

....The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals... The Court ...... attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.

 

HREOC’s submission

6.14 Detailed evidence was provided in this case about the nature of the condition of transsexualism and its likely causes. Whatever the cause may be, that is, whether it is biological in origin or has some other basis, the ECHR in I v United Kingdom usefully identifies the important point that “transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief.” HREOC submits that on the basis of the evidence led in this case and in others, it would be open to the Court to find that GID, or more specifically, transsexualism, is a medical condition that requires treatment whether or not it is specifically described as a ‘malfunction’.

7 Is the treatment appropriately carried out?

7.1 In order for the decision to authorise treatment for transsexualism to come within the ordinary scope of parental power, the Court must also be satisfied to the requisite degree that the treatment is ‘appropriately carried out’.[65]

7.2 An assessment of the appropriateness of the treatment may be made taking into account the evidence led about the nature of the proposed treatment[66] including the guidelines pursuant to which the treatment is provided, the steps taken before treatment is commenced and the purpose of the treatment.

7.3 The appropriateness of the treatment must also be considered in the context of the long term effects of the treatment.[67] This must also be weighed against the evidence led about the effects of withholding or delaying Stage 1 or Stage 2 treatment[68] and evidence concerning the lack of other viable treatment options where an adolescent is diagnosed with GID in accordance with the guidelines and treatment protocols in evidence in this case.

What is the nature of the proposed treatment?

7.4 The nature of the treatment regime in question must be clearly articulated and the guidelines pursuant to which it is carried out must be clearly articulated particularly as there are differences in opinion about the appropriate treatment for adolescents with transsexualism.

7.5 It is also noted that the application and effects of the proposed treatment regime may differ depending on the particular circumstances of the case, including whether the person is male or female and seeking affirmation treatment and the stage of development the child/young person has reached.[69]

Stage 1 treatment

7.6 As set out in paragraph 1.5 of this submission, Stage 1 treatment proposed in these proceedings involves the administration of a pubertal suppressing hormone, GnRHa. This treatment is usually administered at an early stage in pubertal development (Tanner Stage 2).

7.7 Stage 1 treatment is considered to be a diagnostic tool. This is because monitoring the impact of Stage 1 treatment on an adolescent provides clinicians with the opportunity to form a more reliable diagnosis in order to exclude other factors that might influence feelings of gender confusion and, as accurately as possible, identify those young people with persistent GID and then offer them appropriate treatment.[70]

Stage 2 treatment

7.8 Depending on ongoing assessment and consultation with a treating team that includes two psychiatrists and a paediatric endocrinologist, and an ongoing diagnosis of GID then the commencement of Stage 2 treatment is considered after the person turns 16 years of age.

7.9 As set out in paragraph 1.5 of this submission, Stage 2 treatment involves the administration of cross sex hormones to induce the secondary sexual characteristics of the affirmed sex.



Guidelines for Treatment

7.10 The treatment proposed in these proceedings is said to be in accordance with guidelines developed by the World Health Professional Association of Transgender Health (‘WRATH’) [71] and in particular with the treatment protocol developed by Delmarre-van de Waal and Cohen-Kettenis (the ‘Dutch experts’).[72]

7.11 This approach to treatment was supported by the witnesses.[73] Although some witnesses acknowledged that a different approach to the administration of Stage 1 treatment has been adopted by the London Portman Clinic (which has taken the view that a young person should be allowed to experience puberty to Tanner Stage 4 or 5 before Stage 1 treatment is administered),[74] this approach was not supported by any of the witnesses.[75]

Deciding to commence treatment

7.12 The evidence indicated that after the onset of puberty the chances of a child changing his or her mind about undergoing sex affirmation treatment decreases.[76] It is therefore possible to make a diagnosis of GID with a higher degree of certainty.[77] Monitoring the response of adolescents to a real-life experience of living in their affirmed sex is also an important step in the diagnostic procedure.[78]

7.13 International studies also indicate no regret found among adolescents who were treated with cross sex hormones before adulthood and some then had surgery as an adult.[79] However, it is noted that these studies had limited sample sizes and that to date there has been a lack of longitudinal studies of adolescents who have undergone Stage 1 and Stage 2 treatment.[80]

7.14 The decision to commence Stage 1 treatment and the decision to commence Stage 2 treatment are made at separate times in the child’s development. While Stage 1 treatment is carried out with the intention of considering, at a later point in time, the appropriateness of administering Stage 2 treatment, witnesses acknowledged that Stage 2 treatment is not an inevitable consequence of the administration of Stage 1.[81]

7.15 This approach is consistent with the WRATH Guidelines which state that:

A staged process is recommended to keep options open through the first two stages [Stage 1 and Stage 2 treatment]. Moving from one state to another should not occur until there has been adequate time for the young person and his/her family to assimilate fully the effects of earlier interventions.[82]

7.16 The diagnostic aspects of Stage 1 treatment are also considered important to reduce the likelihood of regret.[83]



The purpose of the treatment

7.17 The experts agreed that the provision of Stage 1 and Stage 2 treatment to an adolescent with transsexualism was therapeutic and intended to protect and enhance their physical and psychological health and well-being.[84]

 

What are the effects of the treatment?

 

 

Stage 1 treatment

 

7.18 The expert evidence indicated that there are no permanent effects as a result of the administration of Stage 1 treatment either for males or females.[85] However, it is not yet clear how pubertal suppression may influence brain development.[86]



Stage 2 treatment

7.19 The expert evidence indicated that the long term effects of Stage 2 treatment on an affirmed female (as in Bernadette’s case) include breast development,[87]changes to body shape including widening of hips, skeletal widening, fat distribution,[88] premature closure of the growth plates of long bones resulting in reduction in height.[89]

7.20 The expert evidence also indicated that the long-term effects of Stage 2 treatment on fertility,[90] bone density[91] and carbohydrate and fat metabolism[92] are not yet known. This is mainly because of the lack of longitudinal studies on adolescents with transsexualism who have received Stage 2 treatment.

7.21 In relation to the impact of Stage 2 treatment on fertility, the experts agreed that the effect of the long term use of estrogen on the testes is uncertain.[93] Some experts were of the view that even after the long term combined administration of Stage 1 and Stage 2 treatment fertility could be recovered, but there was no way of saying how long this may take,[94] or whether fertility would be reduced once it had returned.[95] Other experts stated that there is a risk that Stage 2 treatment may lead to permanent infertility.[96]

7.22 In relation to the impact of Stage 2 treatment on bone density[97], the evidence indicated that while there may be some adverse effects on bone density as a result of Stage 1 treatment, these effects are normally rectified when the young person either ceases the puberty blocking hormones[98] or when the Stage 2 cross sex hormones are administered.[99] The uncertainty about the long term effects of treatment on bone density results from the lack of available data on people who have reached the age when peak bone mass is said to be achieved (age 25-30).

7.23 The evidence that appeared to be directed specifically towards treatment for an adolescent seeking affirmation in their male sex was that the long term effects of Stage 1 and Stage 2 treatment on carbohydrate and fat metabolism is unknown.[100]

The effects of withholding or delaying Stage 1 and/or Stage 2 treatment

7.24 Evidence was led that the risks associated in providing Stage 1 and Stage 2 treatment to an adolescent with transsexualism are ‘minor in comparison’ to the risks if they are not carried out[101] or if the administration of either stage of treatment is delayed.[102] The evidence indicated withholding or delaying appropriate treatment for adolescents with transsexualism may result in these young people:

  • Experiencing depression;[103]
  • Engaging in self-harming or suicidal behaviours;[104]
  • Obtaining and taking hormones in an uncontrolled fashion.[105]

7.25 Professor Z agreed that to obtain the most positive results Stage 1 and Stage 2 treatment needed to be administered at an appropriate time in the adolescent’s development.[106] Professor Z stated that the physical changes that occur if Stage 1 treatment is not administered to suppress puberty at Tanner Stage 2 could increase “concern and mental anguish for the young person” and, in the case of an affirmed male, delaying Stage 1 treatment can result in the affirmed male later requiring a surgery in the form of a mastectomy.[107]

7.26 The evidence indicated that if an adolescent is reliably diagnosed with GID then the only viable course of treatment is the administration of Stage 1 treatment and Stage 2 treatment.[108] However, it is noted that a decision to administer Stage 2 treatment will only be made after monitoring the impact of Stage 1 treatment.[109]

HREOC’s submission



7.27 As previously noted (at paragraph 5.8), HREOC submits that it would be open to the Court to view Stage 1 and Stage 2 treatment separately. If this is accepted, the evidence summarised above could, it is submitted, support a finding that Stage 1 treatment is appropriate treatment as long as it is administered in accordance with the WRATH guidelines and the Dutch protocol. HREOC suggests that this finding is open to the Court given the evidence about the lack of permanent effects arising from Stage 1 treatment as well as the benefits to the young person receiving the treatment.

7.28 The position in relation to Stage 2 treatment is less clear given the evidence concerning the irreversibility of bodily changes resulting from Stage 2 treatment and the uncertainty about the effects on fertility from the combined application of Stage 1 and Stage 2 treatment. However, HREOC acknowledges that the evidence may be sufficient to satisfy the Court that Stage 2 treatment is appropriate in circumstances where there is an ongoing and reliable diagnosis of GID by appropriately trained professionals in relation to an adolescent who has experienced Stage 1 treatment and the real life test.

8 Do other factors mark out treatment for transsexualism as a special case?



8.1 The Court must also consider whether there are factors that take the treatment beyond the scope of ordinary parental power. In considering the limits on parental power, the overriding criterion is that of the best interests of the child.[110]

8.2 As noted previously, in Marion’s case the Court identified the following factors as having the combined effect of marking out the decision to authorise sterilisation as a special case and outside ordinary scope of parental authority:[111]

(i) the invasive and irreversible nature of the treatment;

(ii) the significant risk of making the wrong decision, either as to the child’s present or future capacity to consent or about the best interests of a child who cannot consent; and

(iii) the gravity of the consequences if a wrong decision is made about the matters raised in (ii).

8.3 The invasive and irreversible nature of treatment is not of itself sufficient to remove the treatment from the ordinary scope of parental power. Sub-paragraphs (ii) and (iii) were additional requirements considered necessary by the majority in Marion’s case in order to distinguish sterilisation from other treatment that was said to meet the criteria of invasiveness and irreversibility but come within the ordinary scope of parental power, such as an appendectomy or cosmetic surgery.[112]

8.4 In the case of sterilisation, the majority considered Court authorisation as necessary and, in essence, a ‘procedural safeguard’.[113]

8.5 These factors have also been considered in the context of other types of medical treatment for young people.[114]

8.6 In Marion’s case, the majority noted various factors which it considered contributed to the risk of a wrong decision being made about the best interests of a child in the context of sterilisation[115] and the grave consequences that flow from a wrong decision to sterilise.[116]

8.7 The majority, in particular, pointed to the following factors that contribute to the significant risk of a wrong decision being made:

  • the complexity of the question of consent;
  • the fact the sterilisation involves not merely a medical issue, but the consequences were also social and psychological; and
  • the fact that the decision may involve not only the interests of the child, but independent and possibly conflicting interests of others, including family members and parents.

8.8 These factors must be considered within the context of the evidence led in this case including (as previously noted) the following:

  • The irreversibility of bodily changes resulting from Stage 2 treatment
  • Uncertainty about the effects on fertility from the combined application of Stage 1 and Stage 2 treatment
  • The limited professional experience in Australia in providing such treatment
  • The lack of evidence in this case about the independent and possibly conflicting interests of others, including family members and parents, in having the treatment proceed.

8.9 Whether or not the treatment for transsexualism falls within the special kind of case described in Marion’s case requires a careful weighing of the evidence. It also requires, HREOC submits, consideration of the consequences that may flow from a finding that the power to authorise the treatment falls within the ordinary scope of parental authority including the matters identified at 5.4-5.8 above. On the balance of the evidence, HREOC submits that it would be open to the Court to find that the treatment in question in this case is treatment that requires Court authorisation, particularly given the uncertainty in the evidence, based on current knowledge, about the long term effects of Stage 2 treatment on fertility. Such a finding would not foreclose the possibility that, with further study, medical and scientific knowledge about these matters may advance and it may become clearer what the longer term consequences of the treatment may be, particularly in relation to fertility.

 

Human Rights and Equal Opportunity Commission

3 January 2008

 

 

 

[1] (1992) 175 CLR 218 (Mason CJ, Deane, Toohey and Gaudron JJ).

[2] Marion’s case (1992) 175 CLR 218, 240 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[3] Family Law Act 1975 (Cth), s 67ZC(2).

[4] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ); P v P (1994) 181 CLR 583, 597 (Mason CJ, Deane, Toohey and Gaudron JJ). .

[5] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[6] It is also noted that an interim order made on 30 June 2005 authorised the commencement of Stage 1 treatment for Bernadette and an interim order made on 7 November 2007 authorised the commencement of Stage 2/Phase 2 treatment for Bernadette after she turns 16 years of age. Although this potentially raises the question of whether the determination of the question of law at 1.4 is hypothetical, HREOC considers that in light of the approach adopted by this Court in Re Marion (No 2) and the discussion in the transcript of proceedings, PAF1057/2007 (‘T’) at T59 on 07/11/2007, it is unnecessary to make submissions on this point.

[7] Family Law Act 1975 (Cth), s 67ZC(2).

[8] Convention on the Rights of the Child (CRC), opened for signature on the 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1999). 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 18 years within the Australian jurisdiction. 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 18 years within the Australian jurisdiction. Article 3(1) of the CRC states: 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.

[9] L and GM v MM (1994) FLC 92-449 (Warnick J) cited with approval by in Re Inaya (Special Medical Procedure) [2007] FamCA 658, [84] (Cronin J). This approach is reflected in the fact that cases that involve the Court’s welfare power have considerable ‘inquisitorial features’. See further The Hon. Justice Anthony Graham, ‘Parens Patriae: Past, Present, and Future’, (1994) 32 Family and Conciliation Courts Review, 2, 184-207, 203.

[10] Marion’s case (1992) 175 CLR 218, 237-238, 315-317 ((Mason CJ, Dawson, Toohey and Gaudron JJ). Gillick v West Norfolk Area Health Authority and Department of Health and Social Security [1986] AC 112, 169, 186 (Lord Scarman).

[11] Minors Property and Contracts Act 1970 (NSW), s 49(2); Consent to Medical Treatment and Palliative Care Act 1995 (SA), s 6.

[12] See Burney, L, “The Capacity of Competent Minors to Consent to and Refuse Medical Treatment”, (1997) 5 Journal of Law and Medicine 81, 59-60.

[13] CRC, Article 12.

[14] United Nations 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”, [8] states :“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”.

[15] (2004) 180 FLR 89.

[16] (2004) 180 FLR 89, 120 (Nicholson J). See also Professor Z T74.17-19.

[17] Marion’s case (1992) 175 CLR 218. Parental responsibility is defined in s 61B of the Family Law Act.

[18] See, for example, s49(1) of the Minors (Property and Contracts) Act 1970 (NSW) that provides that: “Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent”. Although not directly raised by the submissions filed to date, depending on the operation of any relevant state or territory legislation (such as s 49(1) of the Minors (Property and Contracts) Act 1970 (NSW)), questions may also arise about the operation of s 109 of the Constitution.

[19]Article 5 of the CRC: 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.

[20]Article 18 (1) expands on the concept of the responsibilities of parents and requires State Parties to: ...use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

[21] Marion’s case (1992) 175 CLR 218, 235 (Mason CJ, Dawson, Toohey and Gaudron JJ); see also The Honourable Justice Mushin, ‘Special Medical Procedures, Sterilisation of Minors and the Role of The Family Court’, 14 Psychiatry, Psychology and the Law, 2007, 199-206, 199.

[22] Article 3(2) of the CRC: State Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties and of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. See also the United Nations Children’s Fund (UNICEF), Implementation Handbook for the Convention on the Rights of the Child (2002), pp 46-47.

[23] The UNICEF Implementation Handbook for the Convention on the Rights of the Child states, in the context of the interpretation of Article 3(2) that ’[t]he requirement to take account of the rights and responsibilities of parents and others legally responsible does not prevent the State on occasion from having to intervene without their agreement’. UNICEF, Implementation Handbook for the Convention on the Rights of the Child (2002), pp 46-47.

[24] Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’); Re Alex (2004) 180 FLR 89, 92 (Nicholson CJ).

[25] This approach is now reflected in s 140 of the Evidence Act 1995 (Cth). See also CEEEIPPAS Union of Australia v ACCC [2007] FCAFC 132, [31]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 450 (Mason CJ, Brennan, Deane and Gaudron JJ).

[26] Briginshaw (1938) 60 CLR 336, 361-2 (Dixon J).

[27] Briginshaw (1938) 60 CLR 336, 361-2 (Dixon J).

[28] This question is particularly relevant in the light of evidence that indicates there are a limited number of medical professionals in Australia with expertise in the treating adolescents with gender identity disorder. Associate Professor H T92.9, Dr Y T50.25-35. But see also Professor Z T76.7-8.

[29] Re Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776.

[30] See further para [7.18] of this submission.

[31] See further para [7.19-7.23] of this submission.

[32] See, for example, Re Alex (2004) 180 FLR 89, 122 (Nicholson CJ). Although not finally determined, the Family Court in the case of Re Brodie (Special Medical Procedures: Jurisdiction) [2007] FamCA 776 has been asked by the applicant mother to view Stage 1 treatment for her child in isolation from any other treatment for transsexualism (at [50]).

[33] See further para [7.6]-[7.7] of this submission.

[34] See further para [7.14]-[7.15] of this submission.

[35] See further para [6.6] of this submission.

[36] Associate Professor H T89.1-23; T96.22-26

[37] (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[38] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[39] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[40] See further para [6.4]-[6.9] of this submission.

[41] Kevin v Attorney-General (Cth) (2001) 165 FLR 404; Attorney General (Cth) v Kevin (2003) 172 FLR 300; Re Alex (2004) 180 FLR 89, 124 (Nicholson J).

[42] Bellinger v Bellinger [2001] EWCA Civ 1140, Bellinger v Bellinger [2003] UKHL 21.

[43] There was no suggestion in the evidence that transsexualism results from ‘disease’.

[44] Dr X T11.30; Professor Z T72.24-25.

[45] Dr X T11.34-36; T31.13-19.

[46] Affidavit of Professor D, Annexure G, Report dated 5 September 2007, 55; Professor D T13.41-43. See also Kevin v Attorney-General (Cth) (2001) 165 FLR 404, 463 (Chisholm J); Attorney General (Cth) v Kevin (2003) 172 FLR 300, 348 (Nicholson CJ, Ellis, Brown J).

[47] Professor D T14.15-20.

[48] Professor D T14.13-17. See also Dr K T43.8-16. But, see also Re Alex (2004) 180 FLR 89, 124 (Nicholson J).

[49] Professor Z T72.27-29; Dr K T45.18-30; Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 34.

[50]Affidavit of Professor D, Annexure G, Report dated 5 September 2007, 55; Professor D T3.17-26; Professor D T18.15-20. Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 34.

[51] See also Kevin v Attorney-General (Cth) (2001) 165 FLR 404, 457 (Chisholm J).

[52] Professor D T18.18-19; Dr K T45.39.49-T46.1-3.

[53] Dr K T46.1-3; See also Affidavit of Dr K, Annexure E, Report dated 31 August 2007, 43.

[54] Dr X T11.35. Professor Z T66.39-41. However, it was agreed that some children experience the onset of gender identity disorder at a later stage in development: see Dr X T11.11.

[55] Exhibit D1, Report of Professor Z dated 9 January 2007; Professor Z T66.1-5; Professor D T2.42-46.

[56] Dr X T11.40; T12.20-25; T12.30-35; T14.15; T31.30. Dr X T11.40; T12.20-25; T12.30-35; T14.15; Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 36. See also the World Health Professional Association of Transgender Health Guidelines for the treatment of adolescents with gender identity disorder which observe that: adolescents’ gender identity development can rapidly and unexpectedly evolve. An adolescent shift toward gender conformity can occur primarily to please the family, and may not persist or reflect a permanent change in gender identity. Identity beliefs in adolescents may become firmly held and strongly expressed, giving a false impression of irreversibility; more fluidity may return at a later stage. For these reasons, irreversible physical interventions should be delayed as long as is clinically appropriate”: See Meyer W, Bockting W, Cohen-Kettenis P, Coleman E, DiCeflie D, Devor H et al. ‘The Standards of care of the Harry Benjamin International Gender Dysphoria Association’, 6thversion, International Journal of Transgenderism, http://www.wpath.org/Documents2/socv6.pdf.

 

[57] Re Alex (2004) 180 FLR 89, 109-112 (Nicholson CJ).

[58] Re Alex (2004) 180 FLR 89, 124 (Nicholson CJ).

[59] Re Alex (2004) 180 FLR 89, 124 (Nicholson CJ).

[60] The Concise Oxford Dictionary (7th Edition) defines malfunction’ as a “failure to function in a normal or satisfactory manner”.

[61] Menzies v Waycott & Anor [2001] VCAT 415. Note that this case was decided prior to the enactment of the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 which made discrimination on the ground of ‘gender identity’ unlawful. HREOC is not aware of any judicial authority on whether discrimination against a transsexual person could constitute disability discrimination within the meaning of s 4 of the Disability Discrimination Act 1992 (Cth) or whether such discrimination could constitute sex discrimination in breach of Sex Discrimination Act 1984 (Cth).

[62] [2002] ECHR 592 (11 July 2002).

[63] Specifically, article 8 (right to respect for private and family life), article 12(right to marry and to found a family) and article 14(prohibition of discrimination).

[64] [2002] ECHR 592 (11 July 2002), [61].

[65] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[66] See further para [7.4]-[7.26] of this submission.

[67] See further para [7.18]-[7.23] of this submission.

[68] See further para [7.24]-[7.26] of this submission.

[69] See for example, Re Alex (2004) 180 FLR 89 which involved treatment for a young person who was seeking affirmation treatment to the male sex. Treatment for stage 1 was not GnRHa but the contraceptive pill and aspects of pubertal development had already occurred including unwanted breast development.

[70] Dr X T25.5-11; T30.5-10; Exhibit D1, Report of Professor Z dated 9 January 2007, 2.

[71] Meyer W, Bockting W, Cohen-Kettenis P, Coleman E, DiCeflie D, Devor H et al. ‘The Standards of care of the Harry Benjamin International Gender Dysphoria Association’, 6thversion, International Journal of Transgenderism, http://www.wpath.org/Documents2/socv6.pdf. Note that the Harry Benjamin International Gender Dysphoria Association is now known as the World Health Professional Association of Transgender Health (WRATH).

[72] Annelou, de Vries, Cohen-Kettenis, Delemarre-Van de Waal, Caring for Transgender Adolescents in BC: Suggested Guidelines (Clinical Management of Gender Dysphoria in Adolescents, January 2006, available online at http://www.vch.ca/transhealth/resources/library/tcpdocs/guidelines-adolescent.pdf ; Delemarre-van de Waal and Cohen-Kettenis, Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects, European Journal of Endocrinology (2006) 155 S131-S137, S137.

[73] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 36; Affidavit of Dr K, Annexure E, Report dated 31 August 2007, 44;

[74] Dr X T.27.29; Dr X T27.39-40. Professor Z T.55.47-49 – T56-1-2. See also Re Alex [(2004) 180 FLR 89, 110 (Nicholson CJ).

[75] Professor Z T56.11; Affidavit of Dr K, Annexure E, Report dated 31 August 2007, 44The London Portman Clinic’s approach to the timing of the administration of Stage 1 treatment was supported by British Society for Pediatric Endocrinology and Diabetes (BSPED) Guidelines for the treatment and management of Gender Identity Disorder (GID) in children and adolescents. The BSPED website states these Guidelines are currently being renewed and ratified, a fact that was referred to Dr K in evidence: see Dr K T.27.14-26. The London Royal College of advises that ‘in order for adolescents and those with parental responsibility to make properly informed decisions, it is recommended that they have experience of themselves in the post-pubertal state of their biological sex. Where, for clinical reasons, it is thought to be the patient’s interest to intervene before this, this must be managed within a specialist service with paediatric endocrinological advice and more than one psychiatric opinion’. See DiCeglie D, Sturge C & Sutton A. Gender identity disorders in children and adolescents: guidelines for management. 1998. London Royal College of Psychiatrists, Council Report CR 63.

[76] Dr X T30.48-49 – T31.1-6; Professor Z T57.21-24, T66.45-49; Professor D T8.19-21.

[77] Dr X T30.48-49 – T31.1-6; Professor Z T57.21-24, T66.45-49; Professor D T8.19-21.

[78] Delemarre-van de Waal and Cohen-Kettenis, ‘Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects’, European Journal of Endocrinology (2006) 155 S131-S137, S134.

[79] Professor Z T82.35-40.Cohen-Kettenis and van Goozen, ‘Sex Reassignment of Adolescent Transsexuals: A Follow up Study’, J.AM.ACAD.CHILD ADOLESC.PSYCHIARTRY, 36:2, February 1997, 266; Smith, Cohen-Kettenis, van Goozen, ‘Adolescents with Gender Identity Disorder Who were Accepted or Rejected for Sex Reassignment Surgery: A Prospective Follow up study’: A Follow up Study’, J.AM.ACAD.CHILD ADOLESC.PSYCHIARTRY, 40:4, April 2001.

[80] See further para [7.20]-[7.23] of this submission. See also Smith, Cohen-Kettenis. van Goozen, ‘Adolescents with Gender Identity Disorder Who were Accepted or Rejected for Sex Reassignment Surgery: A Prospective Follow up study’: A Follow up Study’, J.AM.ACAD.CHILD ADOLESC.PSYCHIARTRY, 40:4, April 2001.

[81] Dr X T27.12-14; Professor Z T67.24-25 but see also Associate Professor H T89.1-23; see also Associate Professor H T96. 22-26.

[82] Meyer W, Bockting W, Cohen-Kettenis P, Coleman E, DiCeflie D, Devor H et al. The Standards of care of the Harry Benjamin International Gender Dysphoria Association, 6thversion, International Journal of Transgenderism, http://www.wpath.org/Documents2/socv6.pdf. Note that the the Harry Benjamin International Gender Dysphoria Association is now known as the World Health Professional Association of Transgender Health (WRATH).

[83] Professor Z T67.32-33.

[84] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 41; Affidavit of Dr K, Annexure E, Report dated 31 August 2007, 49; Affidavit of Professor D, Annexure G, Report dated 5 September 2007, 55.

[85] Affidavit of Dr K, Annexure E, Report dated 31 August 2007, 44.

[86]Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007; Professor Z T80.41-42; Dr K T39.1-21;Delemarre-van de Waal and Cohen-Kettenis,’ Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects’, European Journal of Endocrinology (2006) 155 S131-S137, S137.

[87] Professor Z T69.42.

[88] Professor Z T69.48; T70.1.

[89] Professor Z T70.3-11.

[90] Professor D T11.33-46; Dr K T29.35-48; T30.1-2; T38.26-37.

[91] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 38; Professor Z T78.1-6; Affidavit of Dr K affirmed 5 November 2007, Annexure E, Report dated 31 August 2007, 47; Dr K T37.46-49; T38.1-8.Delemarre-van de Waal and Cohen-Kettenis, Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects, European Journal of Endocrinology (2006) 155 S131-S137, S137..

[92] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 3; Professor Z T79.15-20; Delemarre-van de Waal and Cohen-Kettenis, ‘Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects’, European Journal of Endocrinology (2006) 155 S131-S137, S134.

[93] Professor Z T71.12-18; Professor D T5.34-37; see also in relation to the impact of hormonal treatment on fertility generally Annelou, de Vries, Cohen-Kettenis, Delemarre-Van de Waal, Caring for Transgender Adolescents in BC: Suggested Guidelines (Clinical Management of Gender Dysphoria in Adolescents, January 2006, available online at http://www.vch.ca/transhealth/resources/library/tcpdocs/guidelines-adolescent.pdf.

[94] Professor Z T75; Professor D T5.4-9; Dr K T42.19-28.

[95] Professor D T5.25-27.

[96] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 39; Dr X T17.35;

[97] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 38; Professor Z T78.1-6; Affidavit of Dr K affirmed 5 November 2007, Annexure E, Report dated 31 August 2007, 47; Dr K T37.46-49; T38.1-8.Delemarre-van de Waal and Cohen-Kettenis, Clinical management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects, European Journal of Endocrinology (2006) 155 S131-S137, S137.

[98] Professor Z T77.6-12.

[99] Professor Z T70.20-24.

[100] Professor Z T79.15-29.

[101] Affidavit of Professor D, Annexure G, Report dated 5 September 2007, 55

[102] Dr X T25.25-30.

[103] Professor Z T58.43-45.

[104] Professor Z T58.49-T59.1-2.

[105] Dr X T14.49.

[106] Professor Z T49.8.

[107] Professor Z T59.21-22.

[108] Affidavit of Professor W and Professor T, Annexure D, Report dated 1 August 2007, 36; Dr X T20.37-42.

[109] See para [7.14]-[7.15] of this submission.

[110] Marion’s case (1992) 175 CLR 218, 240 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[111] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[112] Marion’s case (1992) 175 CLR 218, 250 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[113] Marion’s case (1992) 175 CLR 218, 249 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[114] See, for example, In Re A (1993) 16 FamLR 715; RE CWW v CMW (1997) 136 FLR 421; Re Inaya (Special Medical Procedure) [2007] FamCA 658).

[115] (1992) 175 CLR 218, 250-252 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[116] (1992) 175 CLR 218, 252 (Mason CJ, Dawson, Toohey and Gaudron JJ).