CASE
SCHOOL OF LAW
HEALTH MATRIX:

Journal of Law-Medicine

Volume 15                              Summer 2005              Number 2

ETHICAL CONCERNS RELATED TO
TREATNG GENDER
NONCONFORMITY IN CHILDHOOD
AND ADOLESCENCE: LESSONS FROM
THE FAMILY COURT OF AUSTRALIA
Hazel Beh*
Milton Diamond**

I. INTRODUCTION

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 psy-

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*Haze Beh, Ph.D., J.D., University of Hawaii, William S. Richardson School of Law.
**Milton Diamond, Ph.D., University of Hawaii, John A. Burns School of
Medicine.
1 Re Alex (2004) 180 Fam. L. R.. 89, 92, available at
http://www.familycourt.gov.au/judge/2004/html/realex.html. The terms “transsexuality” and “Gender Identity Dysphoria” or “Gender Identity Disorder” (GID) are often used interchangeably. See AM. PSYCHIATRIC Ass’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM III) 261 (3rd ed. 1980) [hereinafter DSM III] (using the term transexualism in the classification of Gender Identity Disorders); AM.
PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM IV) 532-38 (4th ed. 1994) [hereinafter DSM IV] (using the terms Gender Identity Dysphoria or Gender Identity Disorder (GID)).
  In any discussion of transsexuality there is a sensitive issue of how nouns and pronouns are used. Most people with a transsexual condition identify themselves as unequivocally members of the sex in which they aspire to live. Thus, Alex sees himself and identifies as a male. And to Alex sex and gender are equivalent so that male means boy or man. To most medical personnel and scientists, however, sex and gender are separate so that it is understood that a female can live and identify as a boy or man and a male can live and identify as a girl or woman. Milton Diamond, Sex and Gender Are Different: Sexual Identity and Gender Identity Are Dfferent, in CLINICAL CHILD PSYCHOL. & PSYCHIATRY 320 (7th ed. 2002). Part of the issue revolves around how an individual’s sex is considered. Over the years this has evolved

239

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chosocial 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 allow-
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so that different categories can be evaluated in arriving at this determination. See generally ALICE DREGER, HERMAPHRODITES AND THE MEDICAL INVENTION OF SEX (1998). Most commonly a person’s sex is evaluated based on chromosomes, gonads, hormonal titers, internal genitalia, external genital appearance, and social lifestyle. With increasing sophistication and knowledge, however, more factors are being identified so that a final resolution on a person’s “sex” can also involve different gene constellations as well as brain sex. Over time an individual’s primary sex characteristic came to be regarded as the person’s gonads. We now understand that an individual’s gonads may not correspond even with other features of gross anatomy or genitalia. There is thus no universally agreed upon standard for how to assess “sex.”
  These discrepancies have implications over and above any grammatical matter. A resolution of these conflicting assay methods has legal and practical effects. Understanding such difference can account for a person being considered a male in one state, a female in another, and an intersexed person in a third. Persons with an intersexed or transsexual condition consider, not their gonads, but their brains and core sense of self, as the primary consideration in the determination of sex. Currently this is best evaluated by the individual’s own admission rather than by any currently available scientifically objective measure. See Rachel Wallbank, Re Kevin in Perspective, 9 DEAKIN L. REv. 461, 468-73 (2004).
2 ReAlex, 180 Fam. L. R. at 110.
3 Id. at Ill.
4 Id.at 125-27, 207, 211-14.

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ing 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
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5 Id. at 125-32.
6 See, e.g., Sex and Drugs and Media Roll — The Family Court’s Decision in Re Alex, 37 AUSTRL. CHILD. RTS. NEWS, May 2004, at 21, 2 1-27 (discussing reactions to the opinion) [hereinafter Sex and Drugs]; The 7:30 Report: Row Erupts Over Teenage Sex Change Court Ruling (Australian Broadcasting Corporation, television broadcast, Apr. 14, 2004), available at http:I/www.abc.net.au/7.30/content/2004/
s1087440.htm (last visited Feb. 22, 2005); FM Controversy over Teenage Sex Change Court Ruling (Australian Broadcasting Corporation, radio broadcast, Apr. 14 2004), available at http://www.abc.net.au/pm/content/2004/sl 087372.htm (last visited Feb. 22, 2005). Even Prime Minister John Howard expressed his opinion that perhaps the court did not have the jurisdiction to make such a decision. See State May Stop Teen Sex Change, NEws24.coM, Apr. 15, 2004, at
http://www.news24.com/News24/World/News/0,6 119,2-10-1462_iS 12599,00.html (last visited May 26, 2005).
7 Sex and Drugs, supra note 6, at 23.
8 Id. at24.
9 See id. at 22 (explaining how the deciding Judge discounted theoretical concerns that “Alex is constructing his self image as ‘really’ male when in fact he is ‘really’ a female lesbian.”); See also David Skidmore, Gender Reassignment Surgery Does Not Help in Our Gender-Divided Society, ON LINE OPINION (Apr. 23, 2004), at http://www.onlineopinion.com.au/view.asp?article=2 160 (“I find it difficult to uncritically endorse gender reassignment surgery because of the implications it has for those of us struggling to be accepted for who we are — openly gay and proud to be so.”); But see Karen Gurney, It’s Important to Recognize That Sex and Gender Must be Treated Differently, ON Lu’ OPINION (May 4, 2004), at
http://www.onlineopinion.com.au/view.asp?article=2 184 (rebutting Skidmore’s reasoning).
10 Sheila Jeffreys, Associate Professor of Political Science at the University
of Melbourne, commented:

[those involved in this decision] should be seen as products of their time and the ideological biases of male dominance. Indeed, their “truth” should be regarded as political opinion. They rely on the notion that there can be a “female” mind in a male’s body and vice versa. Their solution is to use chemicals, amputations, castrations and sterilisations to make the bodies of [gender identity dysphoria] patients fit with their interpretation of what’s happening in the patient’s mind.

Sheila Jeffreys, Allowing Alex’s Sex Change Shows Up a Gender-biased Family

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  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
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Court, ON-LI1.4E OPINION (Apr. 23, 2004), at http://www.onlineopinion.com.au/
view.asp?article=2 162 (last visited Feb. 25, 2005); Shelia Jeffreys, Sex Change Urged by Gender Bias, FEMSPEAK (Apr. 19, 2004), at http://www.femspeak.netlfeaturesl/
transrpt.html (last visited Feb. 25, 2005).
11 The DSM describes separate categories for adults and children and adolescents. The assigned diagnostic code depends on the individual’s current age: if the disorder occurs in childhood, the code 302.6 is used; for an adolescent or adult,
302.85 is used. AM. PSYCHIATRIC Ass’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV-TR) 261 (4th ed. 2000) [hereinafter DSM-IV-TR]. See infra note 97 for a complete definition of Gender Identity Disorder.
12 See infra note 152 and accompanying text.
13 The risk of suicide by Alex had been mentioned by the experts consulted and considered a real possibility by those who knew him. See infra notes 64-67 and accompanying text.
14 See, e.g., Murdered Transgendered Teen’s Name to be Changed, COURTTV.COM, at http://www.courttv.comlnews/2004/0702/transgender_ap.html (last updated July 2, 2004) (reporting the murder of a transgendered youth and her mother’s decision to have the teen’s name changed posthumously). It has been reported that in each of the years 2000 and 2001 there were nineteen trans individuals killed in the United States and the year 2002 was marked with two dozen antitransgender murders. See MONICA F. HELMS, NAT’L TRANSGENDER ADVOCACY COALITION, Transgender Death Statistics, at http://www.ntac.org/resources/stats.asp (last modified July 13, 2003) (providing death statistics for transgendered individuals). Gwendolyn Ann Smith, Remembering Our Dead, at http://www.gender.org/remember/ (last visited Feb. 25, 2005) (providing a memorial for deceased transgendered individuals).

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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
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15 See infra notes 134-37 and accompanying text.
16 See infra notes 99-101, 110-14 and accompanying text.
17 In 1973 homosexuality per se was removed from the DSM-II classification
of mental disorders and replaced in DSM-III by the category Ego-dystonic Homosexuality. See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM II) 39 (2nd ed. 1968) [hereinafter DSM II]; DSM III, supra note 1, at 281. This represented a compromise between the view that preferential homosexuality is invariably a mental disorder and the view that it is merely a normal sexual variant. While the 1973 DSM-II controversy was highly public, there remained a related but less public controversy over the DSM-III category of Egodystonic Homosexuality. This latter category was removed from the DSM-IV (1994). See DSM IV, supra note 1, at 2 1-22 (Ego-dystonic homosexuality is not categorized on the Gender Identity List).
18 There are currently, in the United States, Australia and elsewhere, differing opinions as to the suitability of considering Gender Identity Dysphoria a psychiatric disorder any more than homosexuality. See Rachel Wallbank, Re Alex “Through a Looking Glass,” AUSTL. CHILD. RTS. NEWS, May 2004, at 28. See also Nancy H.

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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

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Bartlett et al., Is Gender Identity Disorder in Children a Mental Disorder?, 43 SEX ROLES 753, 776 (2000) (summarizing data and studies and concluding “comparisons presented in this paper fail to support a conclusion that GID in children, as it appears in DSM-IV, meets the criteria of mental disorder”); Kenneth J. Zucker, A Factual Correction to Bartlett, Vasey, and Bukowski ‘s (2000) “Is Gender Identity Disorder in Children a Mental Disorder? “, 46 SEX ROLES 263 (2002) (stating that Bartlett et al. misread the data from the author’s report and providing a correction of data reported by Bartlett et al). This “correction” was responded to by the authors and seems to strengthen the original article. Nancy H. Bartlett et al., Cross Sex Wishes and Gender Identity Disorder: A Reply to Zucker, 49 SEX ROLES 191 (2003). Zucker and Bartlett and her co-authors are Canadians.
19 With this decision, minors are required to resort to the Family Court in Australia for resolving future transsexual issues in Australia. Prior to the decision, one might assume that if all parties were in agreement, and the minor was not a ward of the state, treatment decisions were made without legal involvement.
20 See infra note 158.

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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
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21 Family Law Act, 1975, s. 41 (Austl.). The state of Western Australia maintains its own Family Court. See Family Court of Australia, The Courts Involved, at http://www.familycourt.gov.au/presence/connect/www/home/guide/before/basics/ step_before_basics_courts (last updated Mar. 29, 2004). See generally Alastair Nicholson, Setting the Scene: Australian Family Law and the Family Court — A Perspective From the Bench, 40 FAM. CT. REv. 279 (2002) (providing information on the Family Law Act of Australia and the jurisdiction of the Family Court); Alastair Nicholson & Margaret Harrison, Specialist But Not Un4fied: The Family Court of Australia, 37 FAM. L.Q. 441 (2003).
22 Sec’y, Dep’t of Health & Cmty. Servs. v. J.W.B. & S.M.B. [Marion’s Case] (1992) 175 CLR 218 (holding that (1) when an application is made to the Family Court, it has jurisdiction to authorize a sterilization in appropriate circumstances; and (2) the Family Court cannot increase the authority of the guardian so that he or she can consent to the sterilization of the child).

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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

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23Id. at 246-50 (providing a discussion of cases from the United States that based their rulings on the fundamental right to procreate and explaining the court’s own reasons for refusing to give parents the right to authorize sterilization procedures for their children).
24 Id. at 250. See also In re A (1993) 16 Fam. L. R. 715 (summarizing Marion’s case and giving permission for gender reassignment surgery on a fourteen year old genetic female with Congenital Adrenal Hyperplasia who identified as a male, unable, due to minority status to give informed consent).
25 In the Marriage of GWW & CMW (1997)21 Fam. L. R. 612.
26 Re Michael [No. 2] (1994) 19 Fam. L. R. 27.
27 In reA (1993) 16 Fam. L.R. 715.
28 See infra note 158.
29 Re Alex (2004)180 Fani. L. R.. 89, 124, available at http://www.familycourt.gov.au/ judge/2004/html/realex.html.

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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
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30 Id. at93, 96-97.
31 Id. 110.
32 Id. at 93. Established in 1986, one of its responsibilities is to provide
independent advice to the courts. The HUMAN RIGHTS & EQUAL OPPORTUNITY COMM’N, INFO SHEET, at http://www.humanrights.gov.au/info_sheet.html (last visited Feb. 23, 2005).
33 The treating professionals included Professor P, an associate professor of psychiatry; Professor W, an associate professor of pediatrics and a pediatric endocrinologist; Dr. N, a child and adolescent psychiatrist specializing in gender issues. By court order the identity of the experts was sealed.
34 “ Re Alex, 180 Fam. L. R. at 97.
35Id.
36 Id. at 98.
37 Id. at 93, 97.
38 Id. at 97.
39 Id. at 99.
40 Id.

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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

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41 Id. at 97-98.
42 Id. at 98.
43Id.
44The court referred to the minor as Alex a male pseudonym, in the gender identity of the child’s choice. Id. at 92.
45Id. at 100.
46 Id.
47Id.
48Id. at 99.
49Id. at 100.

50 Id.
51 Id. at 101. The mother reported that Alex threatened to kill his step-

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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
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siblings and that there was “no love between her and Alex and his step-father had said
that he has no relationship with Alex and did not see Alex as important.” Id. at 101.
52 Id.
53Id. at 102.
54 Id. at 101.
55Id. at 102-03.
56 Id. at 96.
57Id. at 102.
58 See, e.g., id. at 103-04.
59Id. at 105.
60 id.
61 Id. at 104-05.
62 Id. at 103.

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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

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63 Id.
64 Id. at 103.
65 Id. at 102.
66 Id.
67 Id. at 99.
68 Id. at 108 (explaining that sexual orientation (how one views a sexual partner) is distinct from sexual and gender identity (how one views self)). See Diamond, supra note 1, at 320.

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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,

________

69 ReAlex, l8OFam.L.R.at 109.
70 Id. Typically transsexuals do not consider themselves as homosexuals
when they are involved with a member of their same sex. They view this relationship as heterosexual since they see themselves in terms of their preferred gender. Should Alex in the future see himself as a woman, in that case, she (and society) would consider a relationship with a female as a lesbian one.

252                  HEALTH MATRIX

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

________

71 Id.
72 Id. at 111 (quoting the Royal College of Psychiatrists’ Guidance 1998 Gender Identity Disorders in Children and Adolescents — Guidance for Management). This recommendation is controversial. It is made with the belief that the child should experience some of the features of puberty and sexual maturation before deciding to abandon the birth sex. Other professionals, however, stress that allowing pubertal changes to occur would seriously hamper and compromise anatomic and psychological transition. See infra notes 151-52 and accompanying text.
73See The Harry Benjamin Int’l Gender Dysphoria Ass’n, at http://www.hbigda.org/ (last visited Feb. 23, 2005).
74Re Alex, 180 Fam. L. R. at 100.
75Id. at 118.

253                  TREATING GENDER NONCONFORMITY

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
________

76 Id.
77Id. at 120. The age of majority in Australia is 18. Id. at 112-13.
78 Id. at 119.
79The conclusion that he lacked capacity would likely have been the same under the “mature minor” doctrine followed in some United States’ jurisdictions. In Cardwell v Bechtell, 724 S.W.2d 739, 744-46 (Tenn. 1987), a so-called “rule of sevens” was enunciated. If younger than seven years of age the child is presumed to be decisionally incapacitated and that presumption cannot be overcome. From seven to fourteen years of age, the presumption of incapacity can be overridden depending upon the child’s ability to understand the medical problem and consequences of optional procedures and has the ability to express a choice based on stable values. A presumption of decisional capacity is granted after the age of fourteen years.

254                  HEALTH MATRIX

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

________

80 ReAlex, 180 Fam. L. R. at 125.
81 Id.
82 Id. at 126.

255                  TREATING GENDER NONCONFORMITY

  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 iden-

________

83 Id. at 112.
84 The treatment was continuous administration of an oral contraceptive.
When taken without monthly interruption, menses are suppressed. Experts testified
that the treatment would not affect future “ovarian function and fertility.” Id. at 110.
85 Id. at 110-11, 125, 131. Treatment at sixteen could include continuation of
the female hormone-blocking agents (analogue therapy) and subcutaneous testosterone implants. Id. at 111. There was disagreement whether the analogue therapy should be instituted first. According to the experts an analogue therapy period was described as “hormonally neutral” and thus “gives these adolescents time to think about the issues.” It therefore constituted a more cautious approach. Id. at 94, 111. Ultimately, the court left that decision to Alex and his treating physicians at that time.
86 Id. at 111.
87 Id.at95, 113.
88 Id. at 113-14.

256                  HEALTH MATRIX

tity. 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

________

89 Id. at 130.
90 Id. at 131.
91 Id. at 113.
92 The expense of all treatment aspects is considerable and effects how many, both within and outside the trans community, view the medicallpsychiatric designation of GID. As a medical condition gender identity disorder can be covered under certain insurance plans but maintains a stigma. As a non-psychiatric gender variation there is less stigma but a potentially large expense to be personally borne. In some cases this is a double-edged sword since coverage for sex-reassignment surgery (SRS) is often denied to those with a “mental condition.” See infra note 190.

257                  TREATING GENDER NONCONFORMITY

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 gen-

________

93 See Bartlett et al., supra note 18 at 776 (recommending that the GID category in children should not appear in future editions of the DSM); Madeline H. Wyndzen, A Personal & Scientfic Look at a Mental Illness Model of Transgenderism, DIVISION 44 NEWSL. (Society for the Psychological Study of Lesbian, Gay, and Bisexual Issues, a division of the American Psychological Association), Spring 2004, at 3, available at http://www.apa.org/divisions/div44/2004Spring.pdf. See GID Reform Advocates, at http://members.cox.net/gidreform/index.html (last visited Mar. 1, 2005) (dedicated to GID and DSM reform). See also ARLENE ISTAR LEV, TRANSGENDER EMERGENCE: THERAPEUTIC GUIDELINES FOR WORKING WITH GENDER VARIANT PEOPLE AND THEIR FAMILIEs 168-81 (2004) (critiquing past diagnoses of transgendered and transsexual people); Richard A. Isay, Remove Gender Identity Disorder in DSM, PSYCHIATRIC NEWS, Nov. 21, 1997, at 9.
94 Unfortunately there have been no large-scale controlled studies, either for children or adults, as to the effectiveness of any sort of treatment for GID compared With another. And there have been no controlled studies comparing the outcome of treatment with the outcome from no treatment. ARIF (the Aggressive Research Intelligence Facility of the University of Birmingham, England — an entity financed by the British National Health Service to evaluate medically relevant questions), in a statement updated to July 2004, reported that most studies, to date, have been biased pro or con surgery so no definitive conclusion can be made although “the research published generally states that the effects are beneficial.” AGGRESSIVE RESEARCH
INTELLIGENCE FACILITY, GENDER REASSIGNMENT SURGERY, at http://www.bham.ac.uk/arif/genderreassign.htm (last visited Feb. 23, 2005) (discussing the effects of gender reassignment surgery).
95 See THE HARRY BENJAMIN INT’L GENDER DYSPHORIA ASS’N, STANDARDS OF CARE FOR GENDER IDENTITY DISORDERS, SIXTH VERSION (Feb. 2001), at http://www.hbigda.org/socv6.html (last visited Feb. 25, 2005) [hereinafter HBIGDA SOd. The association summarizes the variations and explains why precise preva-

258                  HEALTH MATRIX

der 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

________

lence estimates have been elusive:

When the gender identity disorders first came to professional attention, clinical perspectives were largely focused on how to identif’ candidates for sex reassignment surgery. As the field matured, professionals recognized that some persons with bona fide gender identity disorders neither desired nor were candidates for sex reassignment surgery. The earliest estimates of prevalence for transsexualism in adults were 1 in 37,000 males and 1 in 107,000 females. The most recent prevalence information from the Netherlands for the transsexual end of the gender identity disorder spectrum is 1 in 11,900 males and 1 in 30,400 females. Four observations, not yet firmly supported by systematic study, increase the likelihood of an even higher prevalence: 1) unrecognized gender problems are occasionally diagnosed when patients are seen with anxiety, depression, bipolar disorder, conduct disorder, substance abuse, dissociative identity disorders, borderline personality disorder, other sexual disorders and intersexed conditions; 2) some nonpatient male transvestites, female impersonators, transgender people, and male and female homosexuals may have a form of gender identity disorder; 3) the intensity of some persons’ gender identity disorders fluctuates below and above a clinical threshold; 4) gender variance among female- bodied individuals tends to be relatively invisible to the culture, particularly to mental health professionals and scientists.

See also Lynn Conway, How Frequently Does Transsexualism Occur?, (2001), at http://ai.eecs.umich.edu/people/conway/TS/TSprevalence.html (last updated Dec. 17, 2002). Conway’s estimates are much higher than those of the HBIGDA.
96 See DSM-IV-TR, supra note 11, at 578.
97 Id. at 58 1-82. The diagnostic criteria of GID in the DSM IV-TR makes particular age related distinctions:
Diagnostic criteria for Gender Identity Disorder

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

she is, the other sex
   (2) in boys, preference for cross-dressing or simulating fe mal attire; in girls, insistence on wearing only stereo typica masculine clothing
   (3) strong and persistent preferences for cross-sex roles in
make-believe play or persistent fantasies of being the
other sex
   (4) intense desire to participate in the stereotypical games
and pastimes of the other sex
   (5) strong preference for playmates of the other sex. In ado lescent and adults, the disturbance is manifested by
symptoms such as a stated desire to be the other sex,
frequent passing as the other sex, desire to live or be

259                  TREATING GENDER NONCONFORMITY

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,
________

   treated as the other sex, or the conviction that he or she
   has the typical feelings and reactions of the other sex.
B. Persistent discomfort with his or her sex or sense of inappropriateness in the gender role of that sex.
   In children, the disturbance is manifested by any of the following: in boys, assertion that his penis or testes are disgusting or will disappear or assertion that it would be better not to have a penis, or aversion toward rough-and-tumble play and rejection of male stereotypical toys, games, and activities; in girls, rejection of urinating in a sitting position, assertion that she has or will grow a penis, or assertion that she does not want to grow breasts or menstruate, or marked aversion toward normative feminine clothing.
In adolescents and adults, the disturbance is manifested by symptoms such as preoccupation with getting rid of primary and secondary sex characteristics (e.g., request for hormones, surgery, or other procedures to physically alter sexual characteristics to simulate the other sex) or belief that he or she was born the wrong sex.
C. The disturbance is not concurrent with a physical intersex condition.
D. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Code based on current age:
302.6 Gender Identity Disorder in Children
302.85 Gender Identity Disorder in Adolescents or Adults
Specfy if (for sexually mature individuals):
Sexually Attracted to Males
Sexually Attracted to Females
Sexually Attracted to Both
Sexually Attracted to Neither

98 When such an inconsistency exists the mantra becomes “change my body, not my mind.” See Diamond, supra note 1, at 325.
PEGGY T. COHEN-KETTEMS & FRIEDEMANN PFAFFLIN, TRANSGENDERISM AND INTERSEXUALITY IN CHILDHOOD AND ADOLESCENCE 64-66, 83 (2003). See also Kenneth 99J. Zucker, Gender Identity Disorder, in CHILD AND ADOLESCENT PSYCHIATRY 737, 738-39 (Michael Rutter & Eric Taylor eds., 4th ed. 2002) [hereinafter Gender Identity Disorder) (noting the deficiencies in various approaches to estimating the prevalence in children).
100 Zucker, Gender Identity Disorder, supra note 99, at 739. Adult transsexuals, invariably say their GID started early in childhood.

260                  HEALTH MATRIX

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 girl’s 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

________

101 See Kenneth J. Zucker, Gender Identity Development and Issues, 13 CHiLD
& ADOLESCENT PSYCHIATRIC CLINICS OF N. AM. 551, 554 (2004) [hereinafter Gender Identity], (Milton Diamond & Alayne Yates eds. 2004) [hereinafter Sex and Gender]; COHEN-KETTENIS & PFAFFLIN, supra note 99, at 66.
102 Zucker, Gender Identity, supra note 101, at 554.
103 LEv, supra note 93, at 176.
104 Zucker, Gender Identity, supra note 101, at 554. See also id. at 558-62 (summarizing biological and psychosocial theories); COHEN-KETTENIS & PFAFFLIN, supra note 99, at 70-76 (summarizing literature).
105 Zucker, Gender Identity, supra note 101, at 558-60; COHEN-KETTENIS & PFAFFLIN, supra note 99, at 76-83. See also Milton Diamond et al., Atypical Gender Development — A Review, INT’L J. TRANSSEXUALITY (forthcoming 2005). The court commented on the etiology of Alex’s condition, “[i]t has its most likely origins in Alex’s biological and psychological developmental features.” Re Alex (2004) 180 Fam. L. R.. 89, 125, available at http://www.familycourt.gov.au/judge/2004/html/
realex.html. ln many instances of sex related matters males typically show a stronger genetic component to their behavior than do females, e.g., in the display of homosexual behavior. See Fredrick Whitam et al., Homosexual Orientation in Twins: A Report On 61 Pairs and Three Triplet Sets, 22 ARCHIVES SEXUAL BEHAV. 187 (1993) (discussing the display of transsexuality among twins). Milton Diamond & Skyler Hawk, Transsexuality Among Twins, Presented Before the American Psychological Association (Honolulu Hawaii July 31, 2004).
106 COHEN-KETTENIS & PFAFFLIN, supra note 99, at 106.

261                  TREATING GENDER NONCONFORMITY

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 heterosex-

________

107 Id.
108 Id. See also Lev, supra note 93, at 177-8 1.
109 COHEN-KETTENIS & PFAFFLIN, supra note 99, at 106 (“Retrospective accounts of adolescents with GID make clear that cross-gender feelings, fantasies, and sometimes even behaviors have persisted [from early childhood] until after puberty without others being aware of it.”).
110 Children with GID “display an array of sex-typed behaviour signaling a
strong psychological identification with the opposite sex.” The behaviors may include:

1. identity statements;
2. dress-up play;
3. toy play;
4. roles in play fantasy;
5. peer relations;
6. motoric and speech characteristics;
7. statements about sexual anatomy; and
8. involvement in rough and tumble play.

Zucker, Gender Identity Disorder, supra note 98, at 737.
111 Id. at747.
112 Zucker, Gender Identity, supra note 101, at 556 (citing RICHARD GRbEN,
THE “SissyBoy SYNDROME” AND THE DEVELOPMENT OF HOMOSEXUALITY (1987)).

262                  HEALTH MATRIX

ual 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?

________

113 Zucker, Gender Identity, supra note 101, at 556. Zucker reports that
“[m]uch less is known about the long-term outcome of girls who have GID.” He notes in his own clinic the outcomes are variable among girls as well. Id.
114 Zucker, Gender Identity Disorder, supra note 98, at 746. HBIGDA Standards of Care explain, “[t]here is greater fluidity and variability in outcomes, especially in pre-pubertal children. Only a few gender variant youths become transsexual, although many eventually develop a homosexual orientation.” HBIGDA SOC, supra note 95.
115 See LEv, supra note 93, at 177-81. For a broad discussion of GID treatment in children, see id. at 317-29.
116 For example, George A. Rekers, a professor of psychiatry at the University of South Carolina is a proponent of intervention in childhood GID based in part on his Christian beliefs that both transsexuality and homosexuality are pathological. He explains his views in a Christian Leadership Ministries article, available at http://www.leaderu.com/jhs/rekers.html. See also COHEN-KETTENIS & PFAFFLIN, supra note 99, at 120.
117 One of the most vocal opponents to the decision was Roman Catholic ethicist Nicholas Tonti-Filipini who objected saying “[t]his medical treatment [is] completely unproven. . . . To do it to a 13-year-old who is still in formation, whose body is still forming, whose sense of identity is still forming, it’s just irresponsible.” BBC News, Sex Change for Australian Child, at http://news.bbc.co.uk/1/hi/world/
asia-pacific/3624891.stm (last updated Apr. 14, 2004). Tonti-Filipini is also quoted as saying on an Australian Broadcasting Corporation program “I think [this case] was set up by the Government Department. You can’t get six medical experts with such agreement unless somebody sets it up.” The 7:30 Report, supra note 6.

263                  TREATING GENDER NONCONFORMITY

  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 “[pJsychoeducational 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
________

118 Zucker, Gender Identity Disorder, supra note 99, at 748.
119 Zucker, Gender Identity, supra note 101, at 563.
120 Id.
121 Id.
122 Id. See also COHEN-KETrENIS & PFAFFLIN, supra note 99, at 120.
123 See Zucker, Gender Identity, supra note 100, at 563-64 (describing therapy with parents, “limit-setting” of cross gender behaviors, exploring contributing factors; encouraging same sex peer relations, among some techniques); COHEN-KETTENIS & PFAFFLIN, supra note 99, at 122-25 (describing treatments that focus on family dynamics and altering the environment and parental approaches to encourage gender typical behavior through positive experiences). Cohen-Kettenis & Pfäfflin’s approach focuses on factors “related to the child’s suffering or malfunctioning.” They do not advise prohibiting cross dressing. At the same time, they regard it as beneficial to enable children “to have social relationships with both boys and girls” and to encourage children with GID “to play with same-sex peers,” and to “develop broader, perhaps neutral, interests.” Id. at 124-25. They may advise parents to limit cross- dressing to the home “to protect the child from being harassed” or to “keep [] them in the reality of their daily world.” Id.

264                  HEALTH MATRIX

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

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124 COHEN-KETFEMS & PFAFFLIN, supra note 99, at 121 (citing work of George Rekers).
125 Zucker, Gender Identity, supra note 101, at 563. See also COHENKETTENIS & PFAFFLIN, supra note 98, at 129.
126 COHEN-KETFENIS & PFAFFLIN, supra note 99, at 128-29.
127 Id. at 129.

265                  TREATING GENDER NONCONFORMITY

  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
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128 Elvia R. Arriola, The Penalties for Puppy Love: Institutionalized Violence
Against Lesbian, I J. GENDER RACE & JUST. 429, 469-70 (1998). See also Lev, supra
note 93, at 175-77.
129 Reparative therapies are those practices aimed at changing an individual
from homosexual to heterosexual orientation. For an extensive consideration of the
pros and cons of “reparative therapy” see Symposium, 32 ARCHIVES SEXUAL BEHAv.
399 (2003) (issue devoted to studies related to efficacy of “reparative therapy”).
130 Arriola, supra note 128, at 457.
131 HBIGDA SOC, supra note 95.
132 The Standards of Care state: