Sunday, 21 March 2010

Family Court: parents do not have right to authorise treatment of transsexualism

The Family Court recently rejected a claim by parents of a transsexual girl now aged 18, as to whether parents have the right to authorise treatment for transsexualism, the court saying that it should be the decision maker.

Orders had previously been made in the case, called Re Bernadette for the girl to receive treatment. The hearing was in November 2007, but judgment was not delivered until the girl turned 18.

The girl had been assigned as a boy at birth, but by the age of 3 commenced showing female behaviour, preferences and traits. Identifying herself as female, by age 12 she started living as a female and was referred to as Bernadette.

The parents were critical of the earlier decision of Re Alex, in which the court had authorised treatment for gender identity disorder for a boy. The parents said that there was no need for court involvement and that they as the child's parents should be able to ensure that doctor's treat the child without the involvement of the court.

Justice Collier stated:

The condition of Bernadette has been described as gender identity dysphoria or adolescent transsexualism. Simply put, Bernadette although born a male believes herself to be female and has affirmed her female sex. She has lived as a female since 2004.

One of the major questions in this case is whether or not transsexualism is a malfunction or a disease or a natural variation to be found in human beings where brain sex and genitalia are different. The argument of the applicants is that such a situation does not occur as a result of disease or malfunction, and accordingly should not be treated as such.

In this case I am not satisfied that the medical evidence was clear cut so as to enable me to say precisely what was the cause of transsexualism or gender dysphoria.

Clearly in the joint report of Professors T and W a report was attached which went to this issue. The question was put “Do you agree that the most likely or feasible explanation for transsexualism is that it is the incongruence in a human being between sexual differentiation of the brain and the balance of the sexually differentiated body”. The response what was that the phenomenon was a very complex one, at the moment we do not have enough data to prove that is the most likely explanation....on a reading of the whole of the evidence I am not able to say conclusively what it is that is the cause or causation of transsexualism.
...However, in all the circumstances in this case I am unable to say that the medical evidence presented to me has demonstrated conclusively the cause of transsexualism so as to enable me to find that it is a normally occurring factor of human development. I am thus not satisfied that on that test, that transsexualism is a condition that falls within the range of matters that can be addressed and seen as falling within the parameters of normal parental responsibility to authorise treatment.

For the reasons I have endeavoured to set out, to try and make any form of order or declaration that would be seen as enabling any parent or guardian to authorise treatment of the type involved in this case could be to expose children, the subject of such authorisations, to unwarranted risks. It would not, I am satisfied, be in the best interests of every child to enable parents or guardians to give such consent. Accordingly, I am satisfied that in the best interests of children it is necessary for the court to retain the power to authorise treatment in respect of a particular child when treatment of this kind is contemplated. The court may in appropriate cases, being satisfied on evidence put before it, find that in that particular case it is appropriate to permit the parents or guardians in that particular case to authorise treatment. However, that remains a matter for determination on a case by case basis. (emphasis added)

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