Recently, a family court in Australia considered whether Alex, a thirteen year-old anatomical female diagnosed with “Gender Identity Disorder, transsexual type,” should undergo a staged course of treatment that would support the child’s desire to be treated as a male and to eventually undergo sex reassignment to male.1 In addition to psychosocial support and counseling, physicians and psychiatrists treating Alex proposed to begin, as the first stage of medical treatment, the continuous administration of estrogen and progesterone to suppress Alex’s menses. The treating professionals asserted that this initial treatment was reversible, but that it would delay the development of undesired female sex characteristics.2 At sixteen, if Alex desired continued treatment, the plan before the court called for the administration of a subcutaneous testosterone implant, which would “induce irreversible masculinisation such as voice change, muscle growth, facial and body hair, growth of the clitoris and behavioral effects ‘that would make [Alex] more assertive/aggressive and have a stronger sexual urge.”3 Treating physicians would also administer a hypothalamic blocker which would reduce Alex’s “estrogen secretion to prepubertal levels” and thus delay a female puberty.
In reaching its decision, the court carefully considered the testimony of the child, interested relatives, experts, treating physicians, school officials, the caseworker, and guardian, all of whom were in relative agreement that the treatment should proceed given the emotional discomfort and social adjustment problems the child currently experienced.4 Despite the concurrence of interested parties, the court’s decision to allow treatment, including hormonal treatment at age thirteen that will retard puberty and irreversible treatment at age sixteen to masculinize the child, and to facilitate the child’s psychosocial desire to present himself at school as a male including by allowing a name change,5 was not without substantial controversy in Australia.6
Critics of Alex’s treatment were unlikely bedfellows. Some critics of treatment argued that such life-altering elective treatment on children should be avoided until the child has full decisional capacity.7 Still others questioned the moral and medical legitimacy of sex-change treatment for gender dysphoria generally.8 And some in the lesbian and gay community argued that sex reassignment is necessary only because society is intolerant to gender-blending.9 Those in the feminist and other communities voiced one of the major arguments against the judgment. They argued that the decision was the result of patriarchal thinking.10
In brief, gender identity disorder, also called gender identity dysphoria (GID), is defined in the medical and psychological community as the strong and persistent disturbing belief for at least two years, that one is actually a member of the opposite sex.11 The ethical dilemma of whether and how to treat children and adolescents with GID is particularly difficult to sort through in the abstract. In Alex’s case, to do no intervention, i.e., to allow the child’s reproductive and associated physiological characteristics to emerge at puberty, had consequences. Future treatment to reassign sex would have to be more extensive if the undesired female characteristics had been allowed to emerge. And some authorities suggest that earlier intervention yields a more satisfactory anatomical and psychological outcome.12 Most crucially, Alex had demonstrated self-harm and threatened suicide should his request be denied.13 Thus, doing nothing not only was dangerous but amounted to doing something.
It is undoubtedly tough to be a transgendered minor.14 As the court was well aware, Alex’s depression, suicide risk, and serious social problems at school were so troubling as to require some form of intervention. These psychosocial symptoms can also have lifetime consequences. The emergence of unwanted sex characteristics was producing in Alex its own psychic pain as well. Moreover, Alex’s attempts to present himself publicly as a male when his physical appearance was female would likely lead to social stigmatization, rejection, and harassment during his teen years.
While Alex needed something to be done, the other concern is that treatment to facilitate sex change in an adolescent may be premature. Studies suggest that gender identity is fluid in childhood and even, although less so, into adolescence.15 GID in childhood very often does not persist into adulthood, and adolescent manifestations of GID sometimes do not continue into adulthood.16 In many instances, the adult outcome of childhood and adolescent GID manifests as homosexuality without the gender dysphoria. Thus, for the adolescent, even allowing reversible treatment and allowing the adolescent to present in the opposite sex has future consequences if it solidifies a gender presentation that might have otherwise been later abandoned.
The issues surrounding treatment of children prior to puberty is even more difficult than that posed by treatment in adolescence. In children the issue is not whether to facilitate change, since hormonal treatment is not recommended prior to the onset of puberty, but instead whether GID can or should be suppressed. Currently there is insufficient data to know whether psychiatric treatment can reduce gender dysphoria and change the adult outcome. Moreover, as for psychiatric treatment to alleviate GID, one has to question whether the motivation is to prevent GID or the more common resulting homosexuality given that either outcome may occur. Although once considered so, homosexuality is no longer considered a psychiatric condition, and therefore treatment to prevent it would be inappropriate.17 On the other hand, GID remains a disputable psychiatric disorder.18
Thus, if parents desire such treatment, ethical issues arise concerning the objective of treatment and whether parents have authority to consent to such treatment.
Put simply, there is no single answer as to how to treat children and adolescents with GID. Instead, professionals must exercise clinical judgment in developing and proposing a care plan. Even when sound clinical judgment is exercised, there are substantial risks in treating and in not treating these minors. In light of this, how best can the legal system assist children and adolescents to achieve a satisfactory short and long term outcome? What role can the law play in lessening the social and psychological problems of these youth?
The Australian decision offers a window into the life of a minor with GID. It provides courts with a roadmap as to how to participate in a thoughtful, cautious, individualized and collaborative treatment plan. However, while Re Alex is instructive, the authors note that, unless there is disagreement among parents, physicians, and the child, in the United States, generally parties need not seek judicial approval to provide care to minors.19 Courts in the United States exercise a more circumspect role in medical decision making generally.20
This Article examines the Australian decision, discusses prevailing views on treating GID in children and adolescents, and describes the real-life difficulties these young people suffer. This Article further comments, that in light of recent negative decisions in the United States concerning the legal rights of transgendered individuals, less judicial involvement in deciding whether and how to treat minors with GID is probably best. These medical decisions should occur outside the judicial system when all the parties concur, especially when the treatment falls within established standards of care. When the parties do not concur, other strategies need be considered, and it is here that Re Alex gives us guidance.
The Article concludes by acknowledging that treatment decisions are difficult, but must be made. The authors encourage that, whether these decisions are made in court or by parents, in consultation with clinicians, all medical decisions must be individualized. Decisions should be based on the child’s needs, rather than by narrow views regarding gender variation. While the child’s future decision-making capacity and autonomy should be preserved if the child is not sufficiently mature to make decisions, these goals should not be an impediment to treating the child who needs treatment now. In every case, the decision as to whether and how to treat, has future consequences. Lastly, the authors present for consideration several other matters that need attention relative to a minor’s sexual transition.
II. THE AUSTRALIAN APPROACH:
INDIVIDUALIZED, JUDICIALLY APPROVED INTERVENTION
A. A Unique Judicial Role
A case of this type is more certain to come before a court in Australia than in the United States. Under Australia’s Family Law Act of 1975, the Family Court of Australia has jurisdiction over matters concerning the welfare of children.21 Family law is largely decided at the federal level, thus the standards announced by the court are, except for the state of Western Australia, precedential throughout the country. In a landmark 1992 Australian case, concerning the sterilization of a mentally disabled minor, the court held that parents lack authority to consent on behalf of their children to certain medical decisions and that prior judicial authorization is necessary.22. The court did not base its ruling on the right to procreate, as decisions in the United States have done.23 It more broadly held: “Court authorisation [to medical treatment] is required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.”24
Since then, examples of medical care requiring prior judicial approval in Australia have included harvesting bone marrow for the benefit of another family member,25 the refusal of life-saving medical care,26 and sex reassignment in an intersex child.27 Thus, the State (because Alex was a ward of the State) was compelled to seek prior judicial approval, even if all the interested parties, including Alex (a minor lacking capacity to consent), were in agreement.28
The court concluded that the proposed treatment in this instance required prior judicial approval under its case law:
[T]he treatment plan in the present case falls within the category of cases that require court authorization. There are significant risks attendant to embarking on a process that will alter a child or young person who presents as physically of one sex in the direction of the opposite sex, even where the Court is not asked to authorise surgery. Also, it cannot be said on the evidence that the treatment is to cure a disease or correct some malfunction.29
The court’s approach in deciding what treatment Alex should receive was broadly inclusive. The court sought participation and testimony from individuals with an interest in Alex’s care and of those with particular expertise to aid the court. The court appointed a Child Representative to represent Alex’s interests, in addition to Alex’s legal guardian whose input was more parental.30 It invited participation from family members, including the aunt with whom Alex resided, and from his estranged mother.31 The court also allowed the Human Rights and Equal Opportunity Commission to intervene and make “submissions on the human rights principles applicable to the case.”32
In addition to testimony from various treating professionals,33 the court obtained testimony from experts who reviewed Alex’s records and commented upon the proposed treatment.34 The court asked its own questions about the treatment, and required follow-up responses from the witnesses.35 The judge met privately with Alex, at the minor’s request, and noted that the court was holding certain discussions with Alex confidential.36 It heard testimony from Alex’s aunt, and principals from Alex’s primary school and his new secondary school.37 It obtained a family report from a psychologist who had treated Alex.38
Early in the proceedings, the court delivered interim orders allowing Alex to enroll in high school with a male first name.39 The court also issued an interim order authorizing “reversible hormonal treatment,” in light of the testimony of a treating psychiatrist that “the urgency of treatment is such that it should begin as soon as possible.”40 As the court acknowledged,
evidence … was adduced though [sic] a hearing process that differed in a number of respects from the traditional form. [T]he procedural modifications to the hearing process enhanced the depth and richness of the evidence, and thereby better served the aim of an outcome which will be in Alex’s best interests.41
Specifically, the court explained that much of the evidence was taken “in affidavit form,” the hearing itself was “inquisitorial rather than adversarial”; it was conducted in a private conference room rather than in a court room; it followed a “discussion format” that allowed for “a dialogue in respect of each other’s evidence”; and it took place over a period of time so that witnesses could consider and respond to the testimony of others.42 The court characterized the hearing as “an orderly discussion between witnesses and legal representatives … and myself.”43
B. The Factual Circumstances
The case involved a 13 year-old anatomical female diagnosed with gender identity disorder who self-identified as a male.44 Alex’s troubled family and social history are worth noting. Alex’s father, with whom he enjoyed a loving relationship, one which he characterized as “like best friends,” died when Alex was five or six years old.45 His death was “clearly devastating,” according to the court.46 Alex’s psychiatrist noted, “Alex reported being able to feel at times his father was alive and able to communicate with him, [although] ‘[t]here is no evidence of delusions’ and ‘[t]his phenomenon seemed consistent with his own process of bereavement and socially not unacceptable way of managing the loss of [his] father.”47
Alex regarded his mother as “affectionless and harsh.”48 After his father’s death, Alex’s mother remarried and Alex’s stepfather sponsored their entry to Australia.49 Alex arrived in Australia speaking little English.50 Relationships in the new family were unsatisfactory. At ten years of age Alex’s mother told child protection workers “that she did not want Alex in her life and did not want to see him again.”51 Alex was eventually removed from the home and placed in substitute residential care.52 Although contacted by the court, Alex’s mother did not participate in the instant proceedings. In 2001 Alex’s mother and step-father had written the court “renouncing their relationship with Alex.”53
Although at the time of the hearing Alex resided with a maternal aunt, he remained a ward of the State.54 Alex’s placement with the aunt had been interrupted at one point, when, due to aggressive and suicidal behavior, Alex was temporarily placed in foster care. This “breakdown” called attention to Alex’s need for an assessment of his gender crises.55 A caseworker brought the case for treatment on Alex’s behalf.56 As his caseworker described his earlier placement, [w]e had to put him in a placement… because he was actually threatening to kill himself and saying 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. I felt very seriously that he actually meant it.57
Alex’s male gender identity was reportedly persistent and longstanding.58 For example, Alex reported to a psychiatrist that “[he] grew up in [his] first years of life believing that [he] was a boy”59 and that “[he] has always thought of [himself] as a boy.”60
Alex also attempted to present himself as a male to others even though it caused social problems. He told others he was a boy and he used the boys’ restroom, even after being advised to use the girls’ restroom. When he was told to use the girls’ restroom he “started wearing nappies to school and reported… that [he] would not drink any liquids all day so that [he] did not need to use the toilet during school time.”61
Alex’s tenacity eventually won out. Alex was so persistent that his primary school finally accommodated him by allowing him to “use the enclosed toilet for people with disabilities.”62 The principal of his grade school stated that the staff and teachers eventually “accepted that [Alex] was different,” explaining, “[s]o it was a matter of counseling the staff to say, ‘Well, we need to accept this,’ and staff did. ”63
Alex was eventually diagnosed with depression and gender identity disorder at the age of twelve. The court considered Alex’s mental health history in depth — clearly suicide was on the minds of the court and witnesses. Even in primary school, Alex’s severe depression and suicidal ideation was alarming. The principal explained that he “was in my office and [he] was definitely quite distraught and wanting to kill [himself] because nobody was taking this whole thing seriously about gender.”64 The treating psychiatrist said, “[t]here was no evidence of delusional disorder or thought disorder and [his] orientation and cognition were intact.”65 Nevertheless, Alex “acknowledged having perceptual disturbances, that he would hear his own voice or the voice of his father, and … said [that] ‘somebody can read my mind and the thoughts in my mind.’”66
In the application to approve treatment, Alex’s treating psychiatrist wrote the following: “[T]he urgency of treatment is such that it should begin as soon as possible. [Alex] says that if treatment is delayed and she [sic] has to go to high school with the presence of periods and increasingly feminised body, [he] will be extremely distressed and disadvantaged by that.”67
Alex’s psychiatrists also explored his sexual orientation, asking whether his “wish for treatment emanates from his attraction to girls.”68 Alex’s caseworker, Ms. R., perhaps the one adult most like a parent figure, was not entirely convinced that sexual orientation might indeed be at issue. She testified:
[E]arly on I actually raised the idea with him that he may simply have a same sex attraction and that this is where his gender issues arise from. He quite vehemently denied that it was anything to do with that. I’m still not totally convinced in every single way possible that that isn’t part of the issue for him. We could actually be looking at two separate issues rather than just one that’s all indicative of the same thing. So I’ve always advocated that we take the timely sort of approach and not rush into anything and have made sure that he understands that there’s a whole range of people in the community and just because he sees a man and a woman and a couple of children and that seems to be the bulk of what he would be exposed to in his own life, that that does not mean that that’s all there is in the world.
I take him to places … where he sees a far greater diversity of people and genders and images and try and get him to see that may be a far more effeminate looking male might walk past and a very much more masculinised looking woman might be nearby and that this is a whole range of things and it’s quite acceptable to be anywhere within that range and that as he gets older he has more power within himself and more options about what he chooses for himself and that what he’s dealing with right now doesn’t have to continue to be his reality.69
The court considered the possibility that Alex’s gender identity might not yet be fixed. The court acknowledged that, “with adolescent development Alex may reconsider his gender identity as a male and that if such a change in self-image transpires, he may come to view himself as a lesbian. It is not, however, the current assessment of his state of mind and sense of self.”70 Although the court acknowledged that Alex’s gender identity and sexual orientation might change in time, it concluded:
In light of the adamant nature of Alex’s gender identification and the on-going concern as to how traumatised he would be if the proposed treatment were not to otherwise go ahead, I would not delay treatment merely because of the theoretical risk that Alex is constructing his self image as “really” male when in fact he is “really” a female lesbian and will come to see himself that way over time.
It is true that if Alex does shift in his self-perceptions after testosterone has begun being administered he will have certain irreversible masculine characteristics. I am satisfied, however, that in the course of the proposed treatment, which includes ongoing psychological and psychiatric assistance, there will be attention to whether there emerges a change in his self-perceptions which impacts upon the treatment plan I am asked to authorise.71
Thus, the court had before it, a thirteen year-old female (as measured by gross anatomy and reproductive physiology) with a persistent and longstanding male gender identity, who presented a serious suicide risk, who had a depression rooted, at least in part, in gender identity issues. Alex himself had a strong desire for treatment, his legal guardian and his aunt supported treatment, and all the professionals consulted concurred that treatment was appropriate.
The timing of the application in Alex’s case was fortuitous. At the time of the application, the diagnosis had been established for nearly two years by several treating psychiatrists. Alex had also begun to menstruate, and clinical guidelines in treating GID “recommend that young people have had some experience of themselves in the post-pubertal state of their biological sex before starting any physical intervention.”72 The two years in which Alex had been living as a boy also satisfied one of the criteria in establishing suitability for surgical transition established by the Harry Benjamin International Gender Dysphoria Association (HBIGDA). This is the professional organization primarily concerned with the understanding and treatment of GID.73 In addition, this particular time presented a convenient opportunity to make an easier transition, because Alex was about to switch from primary to secondary school.74
C. Informed Consent
The court considered Alex’s capacity to consent to the treatment. It assessed Alex’s maturity, understanding of his condition, and intellectual capacity. Alex was described as “mature” and “intelligent.”75
A treating psychiatrist stated that he “fully understands at this stage the mechanism of the action for the proposed hormone treatment, and side effects and the benefits.” Nevertheless, the psychiatrist stated, “I believe that it is not appropriate at age 13 [that he] should be wholly responsible for the decision to undergo hormone treatment.”76 The court agreed, noting that with regard to sex change treatment, “[i]t is highly questionable whether a 13 year old could ever be regarded as having the capacity … and this situation may well continue until the young person reaches maturity.”77 The court explained that while Alex lacked legal capacity, his wishes were considered in light of his maturity:
In my view, the evidence does not establish that Alex has the capacity to decide for himself whether to consent to the proposed treatment. It is one thing for a child or young person to have a general understanding of what is proposed and its effect but it is quite another to conclude that he/she has sufficient maturity to fully understand the grave nature and effects of the proposed treatment.
However, in the present case, I have uncontroverted evidence not only that the proposed procedure is entirely consistent with Alex’s wishes but also that the expert evidence as to the best interests of Alex accords with those wishes.78
Thus, while the court considered Alex’s desires, it did not conclude that Alex was sufficiently mature to make such a life-altering decision without the additional safeguard of court approval.79
D. The Treatment Plan
In authorizing a treatment plan, the court considered the justifications for and against treatment and weighed the risks associated with both treatment and nontreatment. The court accepted that Alex’s acute psychological distress justified treatment now. It also acknowledged that his gender identity and sexual orientation might change with maturity, but considered that experts in Alex’s case discounted that possibility:
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. The possibility that Alex is an emerging lesbian has been considered but not accepted by the two expert psychiatric witnesses who have assessed him.80
The court considered lesser or alternative interventions, noting that, “[t]he prognosis for behavioral intervention to change Alex’s self-image and behaviour is poor.”81 The court weighed the risks, and here paid special attention to Alex’s own appreciation of the consequences:
I have canvassed above the physical consequences arising from each stage of treatment and I am satisfied that Alex has the capacity and indeed does in fact know the side effects that may arise and further that he wishes the proposed treatment with knowledge of such risks. The social implications of the proposed treatment are that Alex will face challenges in his chosen identity in respect of peer relationships, possible bullying and ostracism, but I am satisfied that impressive steps have been taken to anticipate such risks.
On the other side of the balance, if treatment is not permitted there is consistent concern that Alex will revert to unhappiness, behavioural difficulties at home and self-harming behaviour. Socially, he will be significantly ill at ease with body and self-image during his period of adolescent development until he is competent to make his own treatment decision. Transition into a male public identity will be more difficult than if it occurs at the commencement of secondary school.82
The medical treatment the court approved would progress in two stages. The court noted that, “Alex’s mental health and endocrinological treatment would be monitored by a team approach” and that the orders of the court were intended to allow “treatment opportunities” rather than “imposing a requirement of taking such treatment.”83 The court authorized the reversible hormone treatment commenced under its earlier interim orders to continue. The goal of the reversible treatment was to suppress Alex’s menses.84
The court further authorized, subject to consensus and an evaluation of his needs at that time, the institution of irreversible hormonal treatment at the age of sixteen.85 That treatment would facilitate “masculinisation such as voice change, muscle growth, facial and body hair, growth of the clitoris and behavioural effects ‘that would make [Alex] more assertive/aggressive and have a stronger sex urge.”86
The court also considered the social and educational risks in making the transition. It issued orders to facilitate a social transition as well. The court further authorized a name change and issued an order that Alex be allowed to enroll in school under his new name.87 In weighing Alex’s best interests, it also carefully considered evidence concerning how the school would assist and protect Alex’s privacy and prevent stigmatization and bullying.88
The applicant did not seek any order to amend Alex’s designated sex on his birth certificate, but the court criticized current laws that focus on surgical reassignment as the sine qua non for changing the birth certificate:
I consider it is a matter of regret that a number of Australian jurisdictions require surgery as a prerequisite to the alteration of a transsexual person’s birth certificate in order for the record to align a person’s sex with his/her chosen gender identity. This is of little help to someone who is unable to undertake such surgery. The reasons may differ but for example in the present case, a young person such as Alex, on the evidence, would not be eligible for surgical intervention until at least the age of 18 years.89
The court noted that requiring surgery as the test for birth certificate amendment could cause hardship, embarrassment, and stigmatization to those who could not or would not undergo surgery. As the court stated, “[a] requirement of surgery seems to me to be a cruel and unnecessary restriction upon a person’s right to be legally recognized in a sex which reflects the chosen gender identity and would appear to have little justifications on grounds of principle.”90
Remarkably, the court also considered Alex’s financial future, especially his ability to eventually pay for future treatment, including surgery. In determining that Alex should remain a ward of the state while in the care of his aunt, the court noted that medical and educational expenses would be provided and that the state also usually offered transitional financial assistance when the child reached majority. Moreover, in the case of disabled children, the state might also provide some continued assistance after the age of eighteen. Finally, because the aunt was being paid by the state for providing care to Alex, and she was saving all such money for Alex in a joint account, there would be money to pay for future treatment.91 This led the court to conclude that Alex should remain a ward of the state.92
III. TREATING GID IN CHILDREN AND ADOLESCENTS
The following sections briefly explore the complexity of diagnosis and treatment of GID in children and in adolescents. Treatment at each stage of life raises unique ethical and medical dilemmas. In preadolescent children, the issue is whether to offer therapy aimed directly at reducing gender nonconformity, in hopes of preventing adult GID. Three problems of such treatment are: (1) the lack of data supporting the efficacy of such treatment; (2) the inappropriateness of preventing homosexuality as an end goal of treatment; and (3) fundamental skepticism that gender identity dysphoria should be classified as a disorder at all. As to this third problem, many believe that GID, like homosexuality, should be seen as just another human sexual variation rather than a psychosexual problem in need of treatment and should therefore be removed as a DSM diagnosis.93 In adolescents, the ethical problems involve whether to treat certain youth with persistent GID with reversible and partially reversible hormonal treatment before adulthood when psychosocial treatment alone does not alleviate their distress. The problems here again are threefold: (1) the lack of solid data concerning who should be treated; (2) whether such treatment is appropriate before adulthood; and (3) whether the treatment might eventually prove disadvantageous.94
A. GID and Treatment Options in Pre-Adolescents
GID in adults is considered rare; however, accurate prevalence estimates vary broadly.95 GID, which encompasses a spectrum of gender discordances,96 is generally marked by “a strong and persistent cross-gender identification and a persistent discomfort with their sex or a sense of inappropriateness in the gender role of that sex.”97 The individual recognizes his or her biological sex (sexual identity) but considers it inconsistent with gender identity (how the individual prefers to see self within society).98
The prevalence of childhood GID is not known with any certainty, and estimates come principally from small studies and clinical experience.99 Researchers assume that it is more common in children than in adults, based on the observation that the childhood diagnosis does not usually persist until adulthood.100 In both adults and children, GID occurs more frequently in males than females; the effect of social and cultural factors to explain the differences is not clear.101 There is some support for the view that boys are identified more often because “parents, teachers, and peers are less tolerant of cross-gender behavior in boys… [and] girls may need to display more cross-gender behavior than boys before a referral is initiated.102 Lev has written:
Boys are punished (i.e., treated) for gender-deviant behavior, whereas girls’ behavior is tolerated and often rewarded, as long as their behavior stays within certain, less confining, guidelines. The language of the DSM reflects this, since boys need only to “prefer” girl’s clothing, but girls must “insist” on boy’s clothing to meet diagnostic criteria. The DSM’s implicit approval of sex-role divisions does not merely reflect social values but reinforces them.103
The etiology of GID is uncertain. Psychological theories focus on parent characteristics, on the child’s psychological make-up, and on life events or on a combination of factors as predisposing influences.104 Biological theories postulate that prenatal hormonal levels, brain development, structure, and chemistry contribute to GID.105
The diagnosis of childhood GID can be difficult because gender is fluid and “cross gender profiles may change over time” for a variety of reasons.106 Diagnosis of GID also requires clinical assessment of typical and atypical gender identification and behaviors existing along a spectrum. For instance, “[i]n the more extreme cases [diagnosis] will not be a very difficult task. However, children may take a position anywhere between ‘typical for boys’ or ‘typical for girls’ on various dimensions.”107 A diagnostician must distinguish between merely atypical gender manifestations that remain within the “normal range.”108 Compounding the difficulties of diagnosis even further, some children with GID keep their cross gender feelings secret and are not diagnosed until adolescence.109
Treatment of childhood GID has evoked considerable controversy. First, the diagnosis can be elusive because gender nonconformity does not always constitute GID, and for some children, it appears self-limiting. The various treatment options have not been tested, so there is the concern of subjecting children to financially costly treatment that might be pointless, or worse, harmful. Finally, depending on what outcome is desired, the treatment goal may itself raise ethical issues.
In childhood, empirical studies demonstrate gender identity is not static and children diagnosed with GID may not be so as adults.110 In fact, in the majority of children, GID “remits by adolescence, if not earlier.”111 Follow-up studies of boys who have GID indicate that “a desistance of GID with a co-occurring homosexual orientation is the most common” outcome,112 while GID may persist into adulthood for others, and for still others may desist “with a co-occurring heterosexual sexual orientation.”113 Less is known about the outcome in girls because “insufficient numbers of girls with GID have been followed prospectively to draw conclusions about long-term outcome.”114
There is some professional thought that intervention with young children can alleviate GID, although this treatment option is not without critics.”115 Certainly some proponents of early intervention justify it based upon a religious or moral conservatism.”116 In response to the Re Alex decision, religious factions were among the more vocal in expressing objection to the court’s decision to allow treatment facilitating transition.117 But others, such as Zucker, acknowledge the complexity of early treatment decisions and assert that treating GID remains an ethical choice in certain cases:
Any contemporary child clinician responsible for the therapeutic care of children and adolescents with GID will quickly be introduced to complex social and ethical issues pertaining to the politics of sex and gender in a post-modern Western culture and have to think them through carefully…. If parents request treatment for their child with GID to divert the probability of a later homosexual orientation, what is the appropriate clinical response?
Perhaps the most acute ethical issue concerns the relations between GID and a later homosexual orientation. As noted earlier, follow-up studies of boys with GID, largely untreated, indicate that homosexuality is the most common long-term psychosexual outcome. Some parents of children with GID request treatment, partly with an eye towards preventing subsequent homosexuality in their child, whether this is because of personal values, concerns about stigmatization, or for other reasons.118
Zucker points out that it “has [not] been shown that any form of treatment for GID during childhood affects later sexual orientation” and “[f]rom an ethical standpoint… the clinician has an obligation to inform parents about the state of the empiric database.”119 Zucker also cautions that the clinician must explain the “distinctness” of sexual orientation and gender identity in their “[p]sychoeducational work with parents.”120 Yet, because it is beneficial to assist children with GID “to resolve the conflicts that are associated with the disorder, regardless of the child’s eventual sexual orientation,” treatment is appropriate.121 On balance, Zucker opines that “[m]ost clinicians, therefore, take the position that therapeutics that are designed to reduce the gender dysphoria, lessen the degree of social ostracism, and reduce the degree of psychiatric comorbidity constitute legitimate goals of intervention.”122
Therapy can include such things as helping parents create opportunities for the child to experience successful gender conforming experiences, develop same sex friendships, and develop a closer relationship with the same sex parent.123 It might also include behavior modification that results in “reinforcement of gender-typical behavior during therapy sessions and extinction of cross-gender behavior, gradual shaping of gender-typical behavior, and desensitizing fear of failure.”124
However, the efficacy of treatment is currently uncertain as Zucker acknowledges:
For children who have GID, clinical experience suggests that psychosocial treatments can be effective in reducing the gender dysphoria…. In considering these various therapeutic approaches, one important sobering fact should be contemplated. With the exception of a series of intrasubject behavior therapy case reports from the 1970s, no randomized controlled treatment trial can be found in the literature. Thus, the treating clinician must rely largely on the ‘clinical wisdom’ that has accumulated in the case report literature and the conceptual underpinnings that inform the various approaches to intervention.125
There is no consensus concerning treatment of childhood GID aimed at preventing either adult GTD or homosexuality. For instance, “[some therapists treat the children to prevent homosexuality [while] [m]any [therapists and others] consider this to be unethical, because homosexuality is not a psychiatric disorder.”126 Moreover, with so little scientific support of the efficacy of treatment, some question whether treatment to cure GID can be justified under any circumstance:
Despite the many treatment approaches, controlled studies do not exist. It is therefore still unclear whether (an extreme) GID in childhood can truly be cured. Whether homosexuality or transsexualism can be prevented by psychological interventions before puberty also remains to be demonstrated. Nothing is known about the relative effectiveness of various treatment methods. … Pending controlled studies, psychotherapy directly aimed at curing GID has no place in the treatment arsenal.127
Some commentators argue that it is society’s treatment of those with nonconforming gender or orientation that is pathological and children expressing nonconformity do not have a disorder. Therefore, they argue, in children with GID, it is better to try to reduce social stigma and treat symptoms such as depression, rather than treating GID. Law professor Elvia R. Arriola criticizes early intervention in GID geared to guiding children toward heterosexuality, arguing instead that society should commit itself “to undoing the belief systems that keep people in what Warren Blumenfeld calls ‘gender envelopes,’ which inhibit our personal growth and our potential for living happy and creative lives.”128 Because studies show that many children who are diagnosed with GID eventually prefer homosexual activities, she argues that treating these children with a goal to have them become heterosexually oriented adults perpetuates the view that homosexuality is a mental disorder. She argues that society should accept atypical gender presentations; that they are not pathological. Moreover, she argues that since homosexuality is not a recognized disorder, it is unethical to treat GID, since it is often merely a precursor to homosexuality. She argues that “the current availability of a mental health diagnosis of GID … replaces the forms of reparative therapies129 supposedly set aside when homosexuality was removed from the official list of mental disorders in 1973 and therefore the basis of GID is blatantly homophobic.”130
The Harry Benjamin Standards of Care acknowledges the possibility of intervening to affect outcome but stops short of endorsing treatment aimed at “curing” GID, stating “[t]he younger the child the less certain and perhaps more malleable the outcome.”131 In treating children, its Standards of Care advise attending more to psychosocial issues surrounding the diagnosis, rather than offering a clear prescription for treating it.132 No one disputes that, at the very least, the psychological distress, stigma, interpersonal difficulties, and depression associated with GID should be treated. Cohen-Kettenis and Pfäfflin write: “[E]ven therapists of opposing backgrounds will agree that certain forms of suffering should be alleviated under all circumstances. Such distress may come from social ostracism, non-GID psychiatric or family problems, or intense unhappiness about one’s sex characteristics and being a boy or a girl.”133 Co-existing problems might even be of greater concern than those associated with gender.134
One final problem with diagnosing a child or adolescent with GID as stipulated in the DSM is that the individual becomes labeled as having a mental disease. The stigma alone can have deleterious effects.
B. GID in Adolescents
Gender becomes less fluid in adolescence; nevertheless the eventual outcome for adolescents with GID still cannot be predicted with certainty. Studies reveal that “there is a considerable narrowing of [gender] plasticity with age, with regard to long-term gender identity differentiation.”135 The apparent fluidity of gender identity in childhood, even into adolescence (albeit to a lesser degree), coupled with inadequate empirical studies to predict outcome and establish reliable treatment necessarily justifies a relatively cautious approach in treating adolescents as well as children.136 Another crucial factor, not mentioned before, needs be taken into account. It is now not uncommon for many diagnosed with GID when adolescents to elect to live as transsexuals without surgery as adults.137 Thus, treatment plans for adolescents need not assume surgery will be the desired end result.
As with children, the ethical issues of whether and how to treat adolescents is made difficult by the lack of solid research. But in adolescents, the issue is not how to “prevent GID” but how much to facilitate the gender transition. Zucker describes the difficulties of deciding when to treat adolescents: “Although early hormonal treatment is controversial, it may be the treatment of choice after the clinician is confident that other options have been exhausted.”138 Importantly, clinicians must explore sexual orientation with their adolescent patients and help them to determine whether GID treatment is truly desirable.139
The HBIGDA Standards of Care allow in some cases more proactive medical interventions for adolescents, including both reversible and partially reversible (nonsurgical) interventions. The Standards of Care caution: “Before any physical intervention is considered, extensive exploration of psychological, family and social issues should be undertaken.” Furthermore, it cautions that gender identity remains changeable and unsettled, “[i]dentity beliefs in adolescents may become firmly held and strongly expressed, giving a false impression of irreversibility; more fluidity may return at a later stage.”140
Treatment in adolescents is divided into three stages: reversible, puberty-delaying treatment; irreversible hormonal treatment; and surgical interventions. As to surgery, HBIGDA states that this should be delayed until the age of majority.141
Reversible treatment, according to HBIGDA is designed to delay puberty. The standard of care permits “puberty-delaying hormones as soon as pubertal changes have begun.”142 HBIGDA explains the justification for reversible treatment:
Two goals justify this intervention: a) to gain time to further explore the gender identity and other developmental issues in psychotherapy; and b) to make passing easier if the adolescent continues to pursue sex and gender change.143
For some adolescents who are trying to make a transition, early treatment may help facilitate their psychological and social adjustment. Offering reversible puberty-delaying treatment may help to alleviate the adolescent’s discomfort at the prospect of developing unwanted sex characteristics.144 It makes it easier to socially pass in the identified gender.145 It delays pubertal changes and so makes a later transition surgically and psychologically easier.146 Moreover, it can help to confirm the diagnosis; delaying puberty “gain[s} time to further explore the gender identity and other developmental issues” while keeping the maturing adolescent’s options open.147
HBIGDA Standards of Care also accept that “partially reversible interventions” may be instituted in 16 year-olds with certain safeguards.148 HBIGDA does not recommend surgical (irreversible) interventions until adulthood, and then only after the two-year real-life experience (RLE)149 has been completed:
Irreversible Interventions. Any surgical intervention should not be carried out prior to adulthood, or prior to a real-life experience of at least two years in the gender role of the sex with which the adolescent identifies. The threshold of 18 should be seen as an eligibility criterion and not an indication in itself for active intervention.150
However, a recent assessment of reported studies on surgical outcomes by a health technology assessment group in New Zealand concluded that while studies to date were quite limited, there was some indication that earlier surgery had a better outcome:
The quality of the evidence is poor and based on a small number of studies with weak study designs and significant methodological limitations. The reviewed studies may indicate that early, rather than delayed, sex reassignment surgery is of greater benefit to transsexual people who have gone through rigorous assessment procedures and have been accepted for surgery.151
Thus it may be that a “too cautious” approach can have its own negative consequences to the outcome.152
Currently, whether and how to treat children and adolescents displaying gender identity disorders involves making an individualized clinical judgment.153 The HBIGDA Standards of Care offers guidance to physicians, rather than any clear criteria for treating any particular individual. Moreover, the Standards of Care acknowledge the “limitations of knowledge” in treating children and adolescents and the need for further research.154 The recent New Zealand review of studies, however, may lend some support for early surgery.
C. Alex’s Treatment Conforms to Standard Care
In Alex’s case, the treatment proposed fell within the HBIGDA Standards of Care. First, the treatment proposed began with fully reversible hormone blocking treatment. Second, it would allow Alex to receive partially reversible hormonal medication at the age of sixteen, allowing him time to mature and to determine whether he wanted to continue the course of treatment. Third, the treatment was not objectionable to Alex or his guardian. Fourth, the plan did not neglect Alex’s psychosocial needs and helped him to make a successful transition. Finally, the court did not authorize surgical treatment prior to Alex reaching the age of majority.155
Although the care afforded Alex conforms to standard care, the case is nevertheless important and noteworthy. Alex’s case offers a rare and comprehensive view into the life of a transsexual minor.156 A few generalizations are evident. Developmentally, the gender and sexual orientation of children and even young adolescents remains in flux and treatment must therefore be well considered and cautious. There is urgency to the need to treat them, however, because psychological distress, depression, and suicide are real risks. The legal status of children and adolescents and their lack of maturation may prevent them from consenting to treatment but their wishes must be valued and respected. Society can be intolerant to gender incongruity and adults must take responsibility for removing stigma and ostracism. The condition is mysterious, rare, and complicated, so experts must be consulted for diagnosis and treatment. Treatment in every case must be individualized and responsive. For all these reasons, these youth are in for a difficult and protracted struggle that will require them to have the support of adults and social institutions.
The judge’s approach to Alex was extraordinary, exemplary, compassionate, cautious, and well-informed. He was not bogged down with rhetoric of gender construction. Alex’s dignity, best interest, current needs and future potentiality were the court’s only concerns.
The role this judge assumed was equally extraordinary. In Judge Nicholson, Alex found a father with whom to share the burden of this monumental personal decision. It was as though the judge sat with Alex at the kitchen table and asked the questions a good parent might ask of the child and of the medical experts, in deciding what course to follow.
IV. THE COURT’S ROLE IN THE UNITED STATES
Although no published cases have considered the appropriateness of hormonal interventions, there have been surprising glimmers of such understanding in judicial decisions in the United States considering “real life” treatment of adolescent GID.157 The lack of cases may be because few centers treat adolescents with hormones, or because such decisions need not go to court in the United States.158 Nevertheless, the several courts confronting issues related to enforcing dress codes, which have had the effect of thwarting psychiatrically approved treatment plans of gender variant youth, have supported the adolescent in suits against educational and residential institutions.159 These cases have been brought based upon state laws prohibiting discrimination on the basis of disability.160 In each, judges have recognized that GID is not a lifestyle or behavior choice but the response to an inner compulsion dictating one’s gender behaviors.
In Doe v. Yunits,161 a school district dress code prevented Pat Doe, a biologic male fifteen year-old eighth grade student, from wearing female clothing or accessories to school. Doe challenged the dress code, claiming that it constituted discrimination on the basis of disability under the Massachusetts Constitution,162 among other claims. The court denied the public school’s motion to dismiss, concluding that GID did constitute a handicap as defined by Massachusetts’s law.163 The school also moved for dismissal of the claim that it had constructively expelled her by refusing to allow her to wear female clothing. The court refused to dismiss Doe’s claim that constructive expulsion constituted a due process violation, reasoning that refusing to allow Doe to wear female clothing was no different than forbidding a diabetic to take insulin during the school day or demanding that a five foot student not return to school until she were six feet.164 The court noted that expert testimony supported Doe’s allegation that “requiring Doe to wear boy’s clothing to school would be … injurious to her psychiatric health.165
In Doe v. Bell,166 Jean Doe, a seventeen year-old diagnosed with GID, had resided in foster care in New York State since the age of nine. She had a persistent and intense “need to wear women’ s clothing and act as a woman.” The court considered the testimony of her psychiatrist and an expert on the treatment and its rationale:
[T]he treatment plan for Jean Doe called for Doe to dress according to her identity as a woman, including “wearing girls’ clothing, accessories, and makeup, and sometimes other items to make [herself] look … more feminine, such as breast enhancers.”
Dr. Spritz explained the reason for such treatment:
“[t]he goal is to facilitate acceptance of the gender identity of a transgendered person by allowing her to dress in a manner consistent with her internal identity … . Research has found that forcing youths with GID to dress in conflict with their identity, though it may be in harmony with their biological attributes, causes significant anxiety, psychological harm, and antisocial behavior.” Her opinion was seconded by Gerald P. Mallon, Phd., a Professor at the Hunter College School of Social Work and founder of the Green Chimneys, Children Services Program for, inter alia, transgendered youth, who expressed the opinion that “[t]he proper course of treatment for transgendered boys is to allow them to wear feminine clothing in an integrated environment.”167
Jean had earlier been placed in “two group homes for gay, lesbian, bisexual, and transgendered youth” but had been discharged from each for misconduct.168 As the court described her: “Jean Doe does have a history of being insubordinate, undisciplined, and on occasion has been involved in violent altercations during her sojourn through many foster homes, group homes and institutions.”169 Jean was then placed in an all male facility, Atlantic Transitional. Atlantic Transitional restricted her clothing options. For example, its director “issued a memorandum to the staff explaining that Jean Doe was not permitted ‘to wear “female attire” in the facility. He can wear it only if he is walking directly out of the facility. If he returns to the facility, he must be escorted to his room so he can remove the female attire.’”170 Following a motion for a preliminary injunction, Atlantic Transitional modified its policy to allow female attire, but not skirts and dresses, providing that “[r]esidents who wish to wear female attire may do so as long as the above guidelines are respected. Female attire that does not conform to the policy may only be worn by a resident when leaving facility premises.”171
At issue was whether, under New York State Human Rights Law, the Administration for Children’s Services (ACS) and Atlantic Transitional Foster Facility discriminated against Doe by enforcing a dress code that prohibited Doe from wearing dresses and skirts. The court first considered whether Jean was a disabled person under the protections of the law. The court noted that New York law defines disability broadly, to include any “medically diagnosable impairment” that is “demonstrable by medically accepted techniques” even if that impairment does not “substantially limit that individual’s normal activities.”172 It therefore held that Doe suffered a disability under New York Law.173 The court also held that Atlantic Transitional failed to reasonably accommodate her disability by not exempting her from the dress code. It explained:
The evidence before the Court establishes that, because of her disability, Jean Doe experiences significant emotional distress if denied the right to wear such feminine clothing. Indeed, the treatment she has received for her GID calls for her to wear feminine clothing, including dresses and skirts. Granting her an exemption from the dress policy avoids this psychological distress. Moreover, it allows Ms. Doe the equal opportunity to use and enjoy the facilities at Atlantic Transitional — a right that would be denied to her if forced to endure psychological distress as a result of the ACS’s dress policy.174
The court also rejected Atlantic Transitional’s argument that permitting Doe to wear feminine attire “would jeopardize the safety of the residents and staff’ and “threaten the safety and security of the institution.”175 The court discounted “[t]he premise of respondents’ argument that cross-dressing by a resident can lead to unsafe sexual behavior and other inappropriate conduct,” pointing out that the facility already “allowed [Jean] to wear fake breasts, make-up, women’s blouses, scarves, nails, hair weaves and other female clothing.”176 It concluded: “There is simply no rational basis for treating dresses and skirts differently than the other feminine accoutrements which Jean Doe may now wear.”177
Atlantic Transitional, an all-male facility, argued that Jean Doe was merely getting her “just desserts” because her own misconduct had led to her expulsion from the gay, lesbian, bisexual, and transgendered youth facility and placement in the all-male facility. Therefore, she should not be entitled to complain about Atlantic Transitional’s rules. However, the court rejected its argument:
ACS’s obligation to act in a nondiscriminatory fashion is not satisfied merely by providing a small number of facilities at which children with GID are assured nondiscriminatory treatment. At each and every facility run and operated by ACS, it must comply with the Human Right Law’s mandate to provide reasonable accommodations to persons with disabilities. That Doe engaged in misconduct … gives no license to discriminate against her by denying her a reasonable accommodation.
Neither of these cases involved a discussion of medical interventions, but in each case the court supported and protected an adolescent implementing a psychiatrically approved “real life” plan. These cases challenged social institutions to tolerate and support gender variant youth, rather than demanding conformity.
These and other cases where courts have stepped up to support sexual minority youth178 must be offset by the ever-present reality that not all judges are so enlightened, perhaps especially so in the United States.179 One need only consider the narrow and unscientific concept of gender espoused in Kantaras v. Kantaras,180 Littleton v. Prange,181 In re Ladrach,182 or In re Estate of Gardiner,183 to understand that not all judges can transcend their own construction of gender and act as courageously as Judge Nicholson did when asked to serve the needs of the child. The hostility of schools, courts, social service agencies, and even parents to sexual minority youth is well known.184 Thus, it is probably just as well that medical treatment decisions concerning childhood and adolescent GID are not routinely put before the court. However, when and if such a case comes to a United States judge, Re Alex offers guidance on how to approach treatment issues and to serve the child’s best interests.185
We have attempted to present some of the issues involved in Re Alex, a case that came before the main Family Court of Australia, and relate it to how similar issues might be dealt with in United States courts. When all parties agree (individual, parents, guardian, therapists) such decisions are typically made outside the legal system in the United States, and we concur that treatment decisions in such cases best remain a decision of parents, children, and doctors, guided by the child’s best interests and with due respect to the child’s maturity.
Of note, Wallbank, the barrister who successfully argued the landmark Australian case Re Kevin, which established the right of a post-operated transsexual to marry in the new sex,186 criticized the conclusion in Re Alex that these decisions must be brought to the Australian courts. She has recently argued that once the diagnosis of GID is established, it should be accepted for minors as it is for adults with the result that remedial treatment is supported even without resort to the courts.187 Wallbank has observed that involving the courts only delays treatment and adds considerably to the total cost.188
We agree with Wallbank that these decisions should be made privately when possible. However, when there is disagreement among the parties, there is a role for family courts to see that all efforts are directed toward satisfying the best interests of the minor. The ultimate decisions, whether made by court or not, deserves consultation with clinicians and others drawn from the ranks of experts qualified in transsexual matters. When a court is drawn into these decisions, Judge Nicholson’s inquisitorial rather than adversarial approach is certainly desirable. Courts considering these cases must take care, as did Judge Nicholson, to preserve the privacy of the minor. Most transsexuals do not seek publicity in their lives and public knowledge of gender transition can have long-term effects in schooling, employment, insurance,189 medical treatment, and in other regards.190 Judge Nicholson’s opinion is notable because he made sure that Alex’s interests were paramount and his interests were well represented. Finally, Judge Nicholson was also mindful of the child’s environment and was able to fashion his orders to facilitate Alex’s transition.
In addition, in cases where there is disagreement, a court must examine the premises on which parents or others object to or seek particular treatment. While parents traditionally have substantial authority to consent to medical treatment, parents should not be regarded as having the authority to either force a child to submit to unsound, unproven, or unethical treatment that may cause harm, or to deny children treatment that is in the child’s best interest. When parental decisions do not serve the child’s interests the state has a right and obligation to intervene.191
Like others, Wallbank also argued that the DSM IV, the Harry Benjamin International Gender Dysphoria Association, and their various professional adherents in the fields of psychiatry and psychology, are, though well intentioned, wrong in their association of the conditions Gender Dysphorial Gender Identity Disorder (on any form of mental disorder or confusion) with transsexualism at any age and that, in continuing to do so, retards the development of proper treatment regimes for children and adolescents.192 We agree that in a more informed and tolerant society, variations in gender should not be regarded as mental disorders and doing so causes unnecessary stigmatization. We should examine ways to bring these cases in the human rights context rather than as disability discrimination cases on the basis of a mental disorder. Nevertheless, practically speaking, the classification of gender identity dysphoria as a disorder has allowed courts to intervene to protect minors, to prevent discrimination, and to promote more tolerant treatment of gender variant youth.
In several other significant regards we are in full agreement with Chief Justice Nicholson. We think it is unreasonable to require surgery for a legal change in sexual status. As the court reasoned, we too believe the requirement for surgery is inconsistent with human rights:
“The requirement is more disadvantageous and burdensome for people seeking legal recognition of their transition from female to male than male to female…the requirement of surgery is a form of indirect discrimination.”193 And we are in agreement regarding the requirements for changing of one’s birth certificate. It can be detrimental to self-image and overall social and geographic mobility for a minor to provide a birth certificate antithetical to his or her self-image or bodily presentation. We think there is no need for waiting either for the age of majority or for requiring surgery.
The legal status of minors and adults poses challenging problems for courts worldwide. With public awareness of an increasing number of persons undergoing transsexual change this need will similarly increase. In 2002, the European Court of Human Rights, considering a case brought before it from the United Kingdom upheld the rights of post-operative transsexuals “to be recognized as members of their post-operative sex and to receive all rights associated with their acquired sex.”194 We think, along with similar decisions in other countries,195 the United States too should recognize the human rights involved and accord full rights to those citizens with a transsexual condition. Moreover, because the transition, either in adulthood, but especially in childhood and adolescence, can be protracted and surgery is increasingly not necessarily the endpoint, it is far better, rather than accepting outdated concepts, to welcome the latest scientific understandings of identity development and to recognize a wide range of gender variation as a reality of the human condition.196