Procedural Posture
The Government and Secretary of the Department of Human Services brought suit on behalf of Alex for a declaration from the Court that the Secretary could allow the seventeen-year old to undergo a bilateral mastectomy. A 2004 ruling had allowed the Secretary to consent to hormone therapy but had not considered the possibility that Alex might have surgery before the age of 18.
Facts
Alex was born anatomically female. His father died when he was 5 or 6, and his mother subsequently remarried and migrated to Australia in 2000. The following year, the Child Protection Services were alerted and they found that “Alex’s mother had rejected Alex and did not want to see Alex again”. The Secretary of the Department was granted guardianship but, after living in foster care for a number of months, Alex began to live with a relative. He was diagnosed with gender dysphoria and in 2004 the Secretary applied for and received judicial permission for Alex to officially adopt a (male) name and start hormone treatment. Three medical reports, submitted to the Court, affirmed Alex’s commitment to the male gender and stated that, for Alex’s social and emotional development, it was important and urgent to allow him to have a bilateral mastectomy. Alex expressed no interest in genital reconstruction, but felt that the removal of breasts would allow him greater freedom to dress and act as a male.
Issue
Whether the court could grant a minor permission to have permanent physical surgery before the age of consent.
Domestic Law
Family Law Act 1975, Sections 60CC (best interest of the child) and 67ZC.
Human Rights and Equal Opportunity Act 1986 (allowing complaints about domestic breaches of internationally or nationally recognised human rights).
Re: Alex (Hormonal Treatment for Gender Identity Dysphoria), Family Court of Australia, 2004 (granting request for name change and hormone treatment for a minor).
Minister for Immigration and Ethnic Affairs v. Teoh, High Court of Australia, 1995 (holding that, regardless of ratification, the Australian parliament “intends to give effect to Australia’s obligations under international law”).
Comparative Law
Gender Recognition Act 2004, United Kingdom (issuing a gender recognition certificate if a person over 18 has gender dysphoria and has lived in the ‘acquired’ gender for two years).
Gillick v. West Norfolk and Wisbech Area Health Authority, House of Lords, United Kingdom, 1986 (discussing the test for age of consent, finding that 18 or 21 could be too strict a standard, and suggesting that courts should instead look to a child’s own capacity to consent).
International Law
Convention on the Rights of the Child, Articles 6, 8 (right to preservation of identity), 12, 13 (freedom of expression), and 16 (right to privacy).
International Covenant on Civil and Political Rights, Articles 16 (right to recognition before the law), 17 (right to privacy), 19 (freedom of expression), and 26 (non-discrimination).
Reasoning of the Court
The Court first reviewed the 2004 ruling and the testimony of Alex’s doctors and government support staff. It noted their shared belief that Alex’s male gender identity was permanent and not subject to change. Alex himself, the relative with whom he lived, and the government all agreed that surgery was in Alex’s best interest. The Public Advocate did not contest the application.
The Court further noted that, if the issue had been raised, Alex could have been granted permission to consent to the procedure himself. The Court referred to the Gillick v. West Norfolk and Wisbech Area Health Authority test, which held that consent should be based on experience and psychology. While the 2004 ruling had found that, at thirteen, Alex was too young to form such a decision, the Court stated that the seventeen-year-old Alex had “the capacity for sophisticated reflection upon the implications of undertaking chest surgery”.
Next the Court considered Sections 60CC (2) and (3) of the Family Law Act, focusing on additional considerations governing medical procedures. These included weighing the views expressed by the child, the nature of the child’s relationships to relatives and other persons, and the likely effect on the child’s life. The Court addressed each of these considerations in turn, and concluded that a variety of factors suggested that surgery was in Alex’s best interest: Alex’s maturity; the permanency of his decision; his good relationships with both the government support staff and his relative; his knowledge of the procedure; evidence that the procedure would be less invasive if it was undertaken earlier rather than at a later date; and the presence of a support system that could assist Alex through the whole process.
The Court relied on international human rights law to confirm its judgment. It reviewed a wide array of documents supporting equal treatment under the law. It referenced the domestic Human Rights and Equal Opportunity Commissions’ Sex and Gender Diversity Issues Paper, as well as the ICCPR (Articles 16, 17, 19, 26), the CRC (Articles 6, 8, 12, 13, 16), Minister for Immigration and Ethnic Affairs v. Teoh (which discussed the significance of the CRC articles to Australian law), and the Yogyakarta Principles (which supported the finding that Alex should be recognised as a man). The Court expressed dismay that Australian law would not allow Alex to change his sex without full reconstructive surgery. After reviewing the responses from government officials that declared that current law required full gender reassignment surgery in order for the gender on the birth certificate to be changed, the Court suggested that the United Kingdom’s approach in the Gender Recognition Act might be a better one.
The Court gave the Secretary permission to consent to Alex undergoing bilateral mastectomies, and held that Alex was to be the official name in all appropriate contexts, without need of parental consent.
Re Alex, Family Court of Australia (full text of judgment, PDF)