Click here to go back to the issue outlines list
Related issue outlines: no related issue outlines
Dictionary: Double-click on any word in the text to bring up a dictionary definition of that word in a new window (IE only).
Analysing the language of the news media: Click here to read a useful document on media language analysis
Age, Herald-Sun and Australian items: Click the icon below to access the Echo news items search engine (2004 file) and enter the following word(s), with just a space in between them.
gender
change
Sydney Morning Herald index: Click here to use the State Library of NSW's online index to the Sydney Morning Herald
Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
2004/13: Children and gender change: should a 13-year-old begin to undergo treatment for gender reassignment?
What they said ...
'Any young person would find it hard to choose a career at 13, let alone choose a gender. Why can't it wait until she is 18 or 19 when she's fully an adult'
Joe Tucci, a social psychologist and chief executive of the Australian Childhood Foundation
'Thirteen-year-olds are competent to at least contribute to life-determining decisions'
Dr Justin Oakley, the director of Monash University's Centre for Human Bioethics
The issue at a glance
On April 13 2004, Family Court Chief Justice, Alastair Nicholson, ruled that 'Alex', a 13-year-old girl who is convinced she is a boy, could take hormones to start the process of gender reassignment. The combination of oestrogen and progestogen will halt her menstrual flow and the feminisation of her body.
The court also ruled that when Alex is about 16, she could take testosterone to begin the process of masculinisation.
Alex will not be considered for sex-swap surgery until she is at least 18.
The ruling has generated enormous controversy among medical ethicists, psychologists and others.
Alex is believed to be the youngest person in Australia to have won the legal right to have sex-change treatment.
Background
[The use of pronouns in describing a case such as Alex's is difficult. Justice Nicholson consistently referred to Alex as 'he' in his ruling. He did this in response to a specific request from Alex.
In this issue outline where direct quotes are given, the pronoun used in the original source has been retained. Other than this, every effort has been made to avoid using pronouns at all in reference to Alex.
Where pronoun use is unavoidable 's/he' 'him/her' has been used.]
Some details of Alex's case
[This information is taken directly from a summary of the case put out by the Family court.]
'Anatomically, and in the eyes of the law, Alex is a girl. However Alex has been diagnosed as having gender identity dysphoria. Alex has a profound and longstanding wish to undergo a transition to become male in appearance. The evidence indicates that this is a clinical condition in which the person feels that his/her physical sex is wrong and does not match self-perception.
Gender identity is different to sexual orientation that refers to a person's attraction for a member of the same sex, the other sex or both.
For quite some time Alex has wanted to be referred to as a male. Professionals involved in the case and members of the family who are close to Alex do so ...
In summary, the evidence before the Court demonstrated that:
* Alex was treated as if he were a boy during his early years and that he spent almost all of his waking and sleeping time with his father before he died when Alex was 5 or 6 years old;
* Alex felt rejected by his mother from an early age and was devastated by his father's death;
*Alex and his mother came to Australia after his mother married a man who sponsored them to come here;
*Alex was subsequently rejected by his mother and step-father and a child protection investigation was commenced;
*Assessments conducted for the children's court proceedings found that Alex was depressed and also recommended attention to Alex's identification as a male.
*The outcome of the children's court proceedings was that Alex went to live with his aunt and her daughter with the Applicant [the Government department responsible for Alex] assuming the decision-making responsibilities of a guardian;
*During the following year, the principal of Alex's primary school and Alex's caseworker became worried by his level of distress and talk of suicide due to his body not matching his male gender identity;
*The Applicant then arranged for Alex to be assessed by the experts in psychiatry and endocrinology who proposed the recommended treatment and gave evidence in the proceedings;
*Alex's aunt initially had difficulty coming to terms with the proposed treatment but now accepts him as a boy and introduces him as such. She gave evidence that since the application, he has become happier, with improved behaviour and "seems to have some direction and some plan for the future".'
[This information can be found at http://www.findlaw.com.au/article/11892.htm]
Internet information
The 'Case Summary of Re Alex: Treatment for Gender Identity Dysphoria' produced by the Family Court can be found at http://www.findlaw.com.au/article/11892.htm
This is a detailed account of the Family court's ruling and the evidence that was presented to it.
On May 12 2003 Four Corners conducted an interview with Family Court Chief Justice, Alastair Nicholson. The interview includes the Chief Justice's views on the importance of the Family Court in determining whether procedures that would result in the sterilisation of children should be performed. Interestingly Chief Justice Nicholson urged that a particularly contentious case be referred to the High Court.
A full transcript of this interview can be found at http://www.abc.net.au/4corners/content/2003/20030616_sterilisation/int_nicholson.htm
On April 14, 2004, the ABC's current affairs program, The 7.30 Report, presented a report on the Family Court's ruling in the case of Alex. A full transcript of this report can be found at http://www.abc.net.au/7.30/content/2004/s1087440.htm
On April 14, 2004, the Channel Nine News presented a report on the Family Court's ruling on Alex's case. A full transcript of this report can be found at http://news.ninemsn.com.au/National/story_56016.asp
On September 2, 2004, the ABC's Australian Story presented a program on Alan Finch, a young man who had had feminising surgery at 19 and who then, at a later time in his life, attempted to have the procedure reversed. The program was titled, 'Boy Interrupted'. It can be found at http://www.abc.net.au/austory/content/2003/s937472.htm
Arguments against a 13-year-old beginning to undergo treatment for gender reassignment
1. Alex is too young to appreciate the significance of this decision
It has been argued that the decision to suppress female sex characteristics and then begin taking male hormones is too significant to be entrusted to someone who is legally a child.
According to this line of argument children lack the maturity and life experience to make many significant decisions. It is claimed that they are simply not sufficiently aware of the ramifications of what they are doing. It is for this reason that the law prohibits children from taking many significant decisions. Thus, it has been noted, the law prohibits children under 16 from having sex, will not allow them to buy cigarettes and will not allow those under 18 to drink or drive.
The Australian in its editorial of April 15 2004 argued, 'The fact that the law forbids Alex to have sex but will permit her to begin to change her gender beggars belief.'
Social psychologist and chief executive of the Australian Childhood Foundation, Joe Tucci, has said, 'Any young person would find it hard to choose a career at 13, let alone choose a gender. Why can't it wait until she is 18 or 19 when she's fully an adult.'
2. Some of the effects of the treatment are irreversible
The principal effect the initial treatment Alex will receive is to stop menstruation. The contraceptive pill will be given without the usual one-week break. This will effectively suppress menstruation. While this is very likely to be reversible, critics are concerned that preventing 13-year-old Alex from displaying female sexual characteristics will encourage Alex to take further steps that are not reversible.
Thus Justice Nicholson's ruling allows that at 16 Alex will be able to take male hormones that will have a number of irreversible effects. Testosterone would deepen Alex's voice, promote the growth of facial and body hair, and cause increased muscular development and an enlarged clitoris. This treatment is also likely to render Alex sterile.
An editorial published in The Herald Sun on April 15 2004 stated, 'If she has second thoughts at 18, when she is allowed to undergo sex swap surgery, it will be too late.'
3. Alex's attitude may change between now and when she is 18
It has been claimed that the attitudes of children are highly subject to change. Therefore, it is claimed, Alex should not be able to take actions now that later may be regretted. The Australian in its editorial of April 15 2004 argued, '... this child is 13 and no matter how unhappy her upbringing or unusual her ambition, it is a fair bet that what Alex wants now above all else may not be her heart's desire in five, let alone 10 year's time.'
Alan Finch, who had a sex change from male to female then back again after realising he'd made a mistake, attacked the court's decision. Despite the treatments he has had to partially undo the gender reassignment procedures he went through, Mr Finch will never be able to function sexually as a man. Mr Finch is spokesman for the Gender Identity Awareness Association
'She is going to have a full beard and a hairy chest,' Mr Finch said. 'If she changes her mind, how is she going to get rid of that?'
4. Counselling and other supports should be used
Alex's gender identity dysphoria has no physiological basis but is psychosocial. Alex self-perception was that of a male until the age of five. Alex wore male clothes exclusively up until this time and generally after. Alex has no male chromosomes and has hormone levels typical of a teenage girl and female reproductive organs.
It has been claimed that Alex's condition could be modified through counselling and therapy.
Andrew Bolt, in an article published in The Herald Sun on April 16, 2004, quoted a psychiatric report completed on Alex three years before Justice Nicholson's ruling. The report stated, '(Alex's) identification with being a male should be reviewed in the context of her incomplete mourning of her father's loss ... [and] the long-standing conflictual relationship with (her) mother . . . (Her) level of depression should be monitored and treated as necessary both pharmacologically and psychotherapeutically.'
Critics of the current decision argue that, contrary to the recommendations of this report, not enough has been done to resolve Alex's problems in a way that would reconcile gender identity and biology.
John Fleming, director of the Southern Cross Bioethics Institute, has stated, 'I find it to be an extreme misuse of surgery and medicine to treat a psychological condition in this fashion.' Dr Fleming has argued that Alex needs 'help not surgery.' He has asked, 'Who's really caring for this young person's real emotional and psychological state?'
5. The Family Court is not the appropriate body to make this ruling
There are those who have argued that the Family Court is not an appropriate body to make a decision in a case such as Alex's.
When asked whether he believed that the Family Court had gone too far in making this decision, the Prime Minister, Mr John Howard, replied, 'I'm tempted to say yes.' Mr Howard then went on to say, 'My initial reaction, as a person is, "Is this the sort of thing that a court should be doing?"'
A similar view was put in an editorial published in The Australian on April 15, 2004. The editorial states, 'Justice Nicholson's judgment goes to great lengths to set out why the court has the authority to adjudicate on such a complex and morally challenging matter. But perhaps this would have been a case where the court should have erred on the side of caution.'
6. The expert opinion in Alex's case should be open to challenge
In an opinion piece published in The Herald Sun on April 16, 2004, Andrew Bolt wrote, 'Nicholson relied heavily on the judgment of Alex's diligent caseworker and of five medical experts, only one of whom seems to have seen Alex more than three times. Two of the experts hadn't seen her at all.
Strangely, in such a difficult case, none of these experts, some of them colleagues, fundamentally disagreed with each other. Never in the hearing were they challenged to defend their theories by someone with very different views.'
Andrew Bolt appears to be concerned that too few of the experts referred to actually had first hand knowledge of Alex and that there may have been some degree of collegiate collaboration in making their recommendations.
Andrew Bolt is also concerned that because the court hearing was not conducted in an adversarial manner there was no one with the responsibility to ensure that the case against gender reassignment was put.
Arguments in favour of a 13-year-old beginning to undergo treatment for gender reassignment
1. Psychologists believe beginning medication is appropriate
Psychologists presenting evidence in this case have argued that it is in the young person's best interests that treatment to repress female development begins now.
The support of expert witnesses for Justice Nicholson's ruling is one of the major arguments offered in its defence. Five specialists gave opinions in line with the decision finally taken by Justice Nicholson.
An expert psychiatrist not involved with Alex's medical management was engaged to provide a further report for the Family Court proceedings and agreed with the proposed treatment. In addition, the director of an English clinic specialising in children and adolescents with gender dysphoria reviewed and gave evidence about the Australian doctors' recommendations. He too agreed that Alex should receive hormonal treatment with ongoing supports but suggested a slightly different course and timing of treatment.
Dr Michael Carr-Gregg in a letter published in The Australian on April 16 has noted 'The experts (who do have the appropriate qualifications) have given evidence that it is in the best interests of this young person to be allowed to start reversible hormone treatment, followed by therapy with some permanent effects when she is 16.'
2. Alex appears competent and with a fixed and informed determination to have the treatments
Before making his ruling in Alex's case, Justice Nicholson said, 'I am satisfied that Alex has the capacity and, indeed, does in fact know the side effects that may arise and further, that he wishes the proposed treatment with knowledge of such risks.'
Justice Nicholson also observed, 'The evidence speaks with one voice as to the distress that Alex is genuinely suffering in a body which feels alien to him and disgusts him, particularly due to menstruation. It is also consistent as to his unwavering and profound wish to present as the male he feels himself to be.'
Similarly, the director of the Centre for Human Bioethics at Monash University, Justin Oakley, said Alex should be allowed to begin the treatment if competent to make the decision and if it was 'clearly in her best interests'.
The director of Monash University's Centre for Human Bioethics, Dr Justin Oakley, has claimed that the treatment was ethically justifiable if it was a last resort and the child was competent to make the decision.
'Thirteen-year-olds are competent to at least contribute to life-determining decisions,' Dr Oakley said. He also argued that the fact a child was suicidal meant they needed treatment but did not necessarily mean they were not competent to make a decision.
3. Alex's caregivers and school support this ruling
Alex is a ward of the state who lives with her aunt. The Government department responsible for Alex supports the application and Justice Nicholson's ruling.
Alex bid to be allowed to begin sex reassignment treatment has the support of Alex aunt, who is the principal caregiver.
The Family Court judgement noted that 'Alex's aunt initially had difficulty coming to terms with the proposed treatment but now accepts him as a boy and introduces him as such. She gave evidence that since the application, he has become happier, with improved behaviour and "seems to have some direction and some plan for the future."'
Alex is under the guardianship of a government department, which brought the case to court with the support of Alex's aunt and school.
The Chief Justice heard evidence from the principal of the primary school that Alex had attended last year and from the principal of his current secondary school. Both supported the proposed treatment. The Chief Justice said in his judgment that both schools had taken steps to accommodate Alex's particular needs and that the secondary school had strategies prepared to meet the possibility of any adverse reactions if Alex were to inform others of his/her gender position.
Justice Nicholson noted, 'The views of [Alex's] mother are not known but in the circumstances, even if she were opposed to the staged hormonal treatment, I would give such views little weight given ... her withdrawal from a parental role in Alex's life.'
4. Alex may be at risk of self-harm if this treatment is not given
Alex's aunt has claimed that Alex had threatened suicide because 'he would rather be dead and didn't want to live this way, that he wasn't a girl and didn't want to be a girl.'
Alex school principal has also said, 'Alex ... was definitely quite distraught and wanting to kill himself because nobody was taking this whole thing seriously about the gender.'
A caseworker who has dealt with Alex has claimed, '[Knowing] how determined he can be, I certainly wouldn't play down [claims of previous suicide attempts] or the risk of that in the future.'
A psychiatrist told the court that if Alex's treatment was delayed and '(he) had to go to high school with the presence of periods and increasingly feminised body, he (would) be extremely distressed'.
An editorial published in The Age on September 15, 2004, ultimately concluded that trying to prevent Alex injuring herself had to be the determining consideration. The editorial argues, 'If the Chief Justice of the Family Court, Alastair Nicholson, had ruled that Alex must wait until she was legally an adult before beginning reassignment treatment, the question about adolescent understanding would have been avoided. But what if, as a result of that decision, Alex eventually became so unhappy that she did herself harm?'
A similar view was put by the director of the St James Ethics Centre, Dr Simon Longstaff. Dr Longstaff said the court's decision was 'motivated by a principled concern for the protection of the child, who was at immediate risk [of self harm], and concern not to see human suffering'.
5. Surgery will not be made available until Alex is 18
In the Family Court case summary it is stated, 'No surgical intervention is sought or indeed contemplated by any of the parties or professional or other witnesses while Alex is under the age of at least 18 years.'
Defenders of the court's ruling have noted that no irreversible surgical intervention will occur until Alex is legally an adult and that prior to having such surgery performed Alex will be extensively counselled.
6. The Family Court is an appropriate body to make this decision
It has been argued that a court, and most particularly the Family Court, is the most appropriate body to determine whether treatment such as that sought by Alex should be allowed. Supporters of the Family Court's involvement in this case argue that it areas of concern and pervious experience make it the most suitable adjudicator. Normally, even with parental consent, people under 18 cannot have medical intervention that may reduce their capacity to reproduce unless there is court involvement. Thus, the Family Court has previously been involved in determining whether a minor should be sterilised. Also, in 2003, Justice Nicholson and the other judges of the full court upheld the validity of a marriage between a woman and a transsexual man who was born a woman.
An editorial published in The Age on September 15, 2004, argued that the court was the most suitable place for a decision to be made in a case such as Alex's. The editorial states, 'There is no simple rule or test by which such dilemmas can be resolved. They require a prudential judgement, based on the circumstances of each case, and that is what the court system is for.'
Further implications
The debate provoked by the case of Alex is really threefold.
The first controversy centres on whether surgical and pharmacological sexual realignment is ever a legitimate treatment in the absence of any biological cause for the subject's sexual confusion.
There is a body of opinion that argues that a surgical treatment for a psychological disorder is inappropriate and is likely to cause only further psychological problems. Cases of neurotically motivated desires for amputations or plastic surgery are cited as parallel instances. It is claimed that compounding delusional thinking by medicinal and surgical intervention is inappropriate.
On the other hand, there are those who argue that (even in the absence of genetic abnormalities feeding a sense of gender confusion or mismatch) the psychosocial shaping of gender identity is so powerful that where a subject believes there is a mismatch between his/her physical gender and psychological gender then surgical intervention to remove the apparent mismatch is warranted.
The second source of controversy is whether a child of 13 should be able to receive treatment likely to lead to gender reassignment at 18. Here, as already indicated in the above issue outline, there is a wide variety of factors that have to be taken into consideration when determining the appropriateness of a child being able to take such a decision.
The final area of dispute is whether the Family Court, or any court, for that matter, should be able to make decisions in matters such as the case of Alex. This last question is unlikely to go away. The Prime Minister has already suggested, speaking as a private person, that he believes sex reassignment is an area that should, perhaps, be outside the jurisdiction of the Family Court. If it is determined that the Family Court should not be able to make rulings in such cases, the question of who decides and in line with what guidelines, still remains.
Sources
The Age
15/4/04 page 12 editorial, 'The court, a child and a change of gender'
16/4/04 page 10 letter from Rosalind Spencer, 'Missing out on puberty'
17/4/04 page 3 (Insight) analysis by Deborah Smith, 'finding orientation in the gene hunt'
17/4/04 page 3 (insight) analysis by Deborah Gough, 'Court faces up to a gender divide)
17/4/04 page 10 (Insight) letter from Senator Brian Greig, Democrats' spokesman for sexuality issues, 'Sexual orientation clouded by oppressive dogma'
17/4/04 page 10 (Insight) letter from Dr Nicholas Tonti-Filippini, medical ethicist, 'Sex-change case lacked balance'
17/4/04 page 10 (Insight) letter from Aren Aizura, 'He or she? Let them choose'
The Australian
15/4/04 page 3 news item by Emma-Kate Symons, 'Sex change teenager "needs help not surgery"'
15/4/04 page 12 editorial, 'Child gender change takes the law too far'
16/4/04 page 11 analysis by Louise Milligan, 'Search for true identity'
16/4/04 page 12 letter from Dr Michael Gregg-Carr, 'What basis?'
The Herald Sun
15/4/04 page 9 news item by Jen Kelly, 'Mum begs 13yo sex swap girl'
15/4/04 page 20 editorial, 'Changing sex'
16/4/04 page 7 news item by Jason Frenkel, 'PM queries sex swap case'
16/4/04 page 21 comment by Andrew Bolt, 'A girl betrayed'
17/4/04 page 18 analysis by Jen Kelly, 'Why I want to be a boy'
17/4/04 page 28 vox pop, 'Should 13-year-old "Alex" be given growth hormones ton help her change into a boy?'