Treating transsexual children is a complex medical balancing act. So why is it still in the hands of the Family Court? Melinda Ham investigates.
Bernadette* was born with a penis but a steadfast conviction that she was a girl. At about the age of 12, she began to dress and live as a girl. She received puberty blockers at 13 and, after securing the necessary court orders, hormones to bring on female pubertal development at 16.
At 18, Bernadette had genital reassignment surgery. Today, at 20 years of age, she is a manager of a women’s products company and living happily and independently in Melbourne.
While this may sound like a happily-ever-after story, it’s been a painful and arduous journey over two decades for Bernadette and her family. What’s made it harder is that certain legal precedents mean Australia is the only developed country where permission to use puberty blockers and cross-gender hormones must be obtained through court orders.
Legal and medical experts alike are now arguing that this jurisdiction should be taken out of the hands of the courts; it is a medical issue, not a legal one, they say.
Bernadette’s family say they literally had no choice but to go through the courts because she was convinced she was a girl.
“When Bernadette was about three or four years old, the head of her preschool phoned us and said, ‘I think your child has gender identity disorder’,” says her father, Frank. “I thought she (well she was referred to as a ‘he’ then) was one of those kids that liked dress-ups and playing in the kitchen corner with pots. She liked cars and garages, too.”
Then, in primary school, Bernadette was bullied by other kids – sometimes brutally – and faced problems with teachers. After being referred by their GP to psychiatrists in the mid-1990s, the family was initially told to ignore Bernadette’s female behaviour, to dress her as a boy and to give her boys’ toys or gender-neutral toys.
Then, just before Christmas 2000, Frank had an epiphany. “My wife and I were standing at the checkout at K-Mart with all these boys’ toys and I said, ‘This is bullshit. What Bernadette wants is a Barbie house – so what if it’s pink and effeminate?’” he says.
“I realised then that at the end of the day, you can put a cat on a leash and feed it dog food, but it’s never going to bark, and that’s how it was with my daughter.”
There have been no longitudinal studies to identify the number of children with transsexualism in Australia, but it is a very rare condition, says Professor Louise Newman, director of the Centre for Developmental Psychiatry and Psychology at Monash University in Melbourne.
Only six transsexual young people have so far been granted permission to have treatment by the Family Court and about six other cases are waiting to be heard. The transsexual family support group True Colours says it has about 35 families as members that come from every state.
Current best practice guidelines for transsexualism were established about six years ago by doctors Henriette Delemarre-van de Waal and Peggy Cohen-Kettenis,1 who run the Gender Clinic at the VU University Medical Center in the Netherlands – the first and largest clinic of its kind in the world treating transsexual children and adolescents.
Their stages of diagnosis and treatment are consequently called the ‘Dutch Protocol’ and have been adopted as the Standards of Care by the World Professional Association for Transgender Health, the peak global body on this issue, and the Australian and New Zealand Professional Association for Transgender Health (ANZPATH).
GPs play “a crucial role” in the diagnosis of children, Professor Newman says, and although they are unlikely to see many cases of transsexualism, it’s important to develop the skill set for a frank discussion with family and child focusing on gender rather than sexuality.
“Usually it’s very clear,” Professor Newman says. “In childhood and adolescence there is often gender confusion – many children don’t tick all the usual gender boxes. In this case, though, there is no confusion or question; the child has persistent cross-gender identification that their body doesn’t match their brain. The issue is how to help the child.”
Having this cross-gender identification can lead to secrecy, depression, anxiety, being a victim of schoolyard bullying and feeling stigmatised and a social pariah, and can affect a child’s academic performance. They may contemplate self-harm or suicide.
Following a tentative diagnosis of transsexualism, patients should be referred to a paediatric psychiatrist for assessment using DSM-IV. If they comply with this diagnosis, the psychiatrist would give the child and parents supportive counselling about how to deal with the issue. Professor Newman calls these “survival skills”, including who to tell in the family, how to approach the school and what to do if they are bullied by other children.
Most cases are referred to Melbourne to the two main experts in this field, Associate Professor Campbell Paul at the Royal Children’s Hospital and Professor Newman at Monash University. Currently, these institutions are waiting for funding to set up the country’s first multi-disciplinary Gender Clinic for Children and Young People.
The next step would be to refer them to a paediatric endocrinologist for the first phase of treatment: suppressing puberty using gonadotropin-releasing hormone analogues (GnRHa), administered concurrently with the onset of puberty, at Tanner Stage 2. At the same time, according to the Dutch Protocol, the child must be “psychologically stable and live in a supportive environment”.
The purpose of using GnRHa – known as a ‘puberty blocker’ – is to give an adolescent time to make a measured decision on any future treatment, and to obtain improved results in the physical appearance of those who later choose to continue with sex reassignment.
But in Australia, while puberty blockers are readily prescribed and administered for cases of physically identifiable intersex conditions and precocious puberty, a precedent was set in 2004 meaning that transsexual children can only obtain them with a Family Court order – even where the young person concerned, their parents and doctors all agree that such medical treatment is necessary for their wellbeing.
Known as the Re Alex case, the precedent involved an adolescent who was born female but believed he was a boy and was a ward of the state. Former Chief Justice of the Family Court, Alastair Nicholson, ruled that administering puberty blockers was a “special medical procedure” and came within the court’s jurisdiction because it was beyond the ambit of normal legal parental power.
After Re Alex, permission must now also be granted by the Family Court for the second stage of treatment, cross-gender hormone therapy that needs to be administered before Tanner Stage 4, so an adolescent patient can develop physical shape, voice pitch and hair distribution appropriate to their affirmed sex. Again, cross-gender hormone therapy is available to intersex children without court permission.
Rachael Wallbank is a specialist family lawyer who has acted for parents in several transsexual children’s cases. As she is a woman of transsexual background herself, she has special insight into the experience of transsexual kids.
“The consequence of not having puberty blockers is terrible for these young people – to be condemned life-long to the constant inner turmoil and social ostracism of experiencing oneself as being of one sex, while having a body that tells you and the world that you are the other sex,” she says.
Wallbank argues that the ruling in Re Alex needs to be reversed as it is based on outdated and limited expert evidence, and too broad an interpretation of the court’s jurisdiction.
Professor Newman also agrees that this issue should be decided by medical practitioners.
“It should be up to a specialist clinical opinion, but it is still very complex on a case-by-case basis,” she says.
The court’s jurisdiction in the case of transsexual children’s medical treatment is currently being challenged in the Re Jamie case, which is awaiting judgment of the Full Court of the Family Court of Australia.
Dr Fintan Harte, vice president of ANZPATH and director of the Southern Health Gender Clinic, Melbourne, sees many adult transsexuals who never had the option of treatment as adolescents.
“I don’t think it makes sense to drag this issue through the courts,” he says.
“Things have moved on and a doctor’s first maxim is ‘First do no harm’. That doesn’t mean doing nothing and depriving these children of intervention.”
*Pseudonyms are used throughout
One European study2 indicates that children who take puberty blockers can develop a lower bone mineral density than children who go through puberty at a normal age, but the differences are not substantial.
Otherwise Phase 1 Treatment is totally reversible. Phase 2 Treatment is also substantially surgically reversible if the patient decides not to have genital reassignment surgery in adulthood.
1. Henriette A Delemarre-van de Waal and Peggy T Cohen-Kettenis “Clinical Management of gender identity disorder in adolescents: a protocol on psychological and paediatric endocrinology aspects” Eur J Endocrinol November 1, 2006 155 S131-S137
2. Vanderschueren D, Vandenput L, Boonen S, Lindberg MK, Bouillon R, Ohlsson C. “Androgens and bone”. Endocr Rev 2004; 25:389–425.
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