FAMILY COURT OF AUSTRALIA

re: jordan	[2015] FamCA 175	

FAMILY LAW – CHILDREN – MEDICAL PROCEDURES – Where the applicants are the parents of a 16 year old child diagnosed with Gender Dysphoria – Where the child was born female and identifies as being male – Where the experts agree the child is not Gillick competent – Where an order is sought authorising the applicants to consent to the child undergoing Stage 2 treatment – Where Stage 2 treatment carries significant risks and has irreversible effects – Where it is undisputed by the parents and medical experts that it is in the best interests of the child to undergo Stage 2 treatment – Application granted.	

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Family Law Rules 2004 (Cth)

Gillick v West Norfolk A.H.A [1986] AC 112
Re: Jamie (2013) FLC 93-547
Secretary, Department of Health and Community Services v JWB and SMB (“Marion’s Case”) (1992) 175 CLR 218	

APPLICANTS:	The Father and
The Mother	

INTERVENER:	Relevant State Government Department	

FILE NUMBER: By Court Order File Number is suppressed

DATE DELIVERED:	12 March 2015	

JUDGMENT OF:	Kent J	

HEARING DATE:	12 March 2015	

REPRESENTATION
By Court Order the names of counsel and solicitors have been suppressed

Orders
IT IS ORDERED THAT:

1.	Leave is given for the Court to be closed today for the hearing and determination of these proceedings.
2.	Pursuant to s 100B(1) of the Family Law Act 1975 (Cth), leave is given for the affidavit of the child, JORDAN born on … 1998 (“the child”), to be filed and read today. 
3.	Pursuant to S 100B(2) of the Family Law Act 1975 (Cth), leave is given for the child to be present in Court today for the hearing and determination of these proceedings.
4.	Leave is given for the relevant State Government Department to intervene in these proceedings.	
IT IS FURTHER ORDERED THAT:
5.	Pursuant to s 67ZC of the Family Law Act 1975 (Cth) the Court authorises the Applicants, the Father and the Mother, to consent to treatment on behalf of the child under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Professor X and his psychiatrist Dr T, for the administration of Intramuscular Primoteston (testosterone enanthate) in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve male puberty.
6.	The full name of the child, the child’s family members and their occupations, the hospital, the child’s medical practitioners, the child’s school, this Court’s file number, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify the child shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the Registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary Order of a Judge, it being noted that each party shall be handed one full copy of these Orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names. 
7.	No person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Jordan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia 	

FILE NUMBER: By Court Order the File Number is suppressed

The Father and the Mother 	
Applicants

And

Relevant State Government Department 	
Intervener

EX TEMPORE REASONS FOR JUDGMENT
1.	The child the subject of this application, Jordan, is currently 16 years and 
seven months of age, having been born in 1998.  Jordan is, in a physiological sense, female.  However, he identifies as a male and has been diagnosed with Gender Dysphoria.  
2.	Jordan’s parents jointly brought this application, pursuant to this Court’s welfare jurisdiction as contained in s 67ZC of the Family Law Act 1975 (Cth) (“the Act”).  The applicant parents seek orders authorising them to consent to what is known as Stage 2 treatment on Jordan’s behalf, being the administration of testosterone to induce male puberty.
3.	Jordan’s parents have been married since 1991.  Jordan is thus a child of the marriage within the meaning of the Act, and the jurisdictional threshold to make an order under s 67ZC is satisfied.  
4.	Usually, parents can authorise and consent to medical treatment for their child.  Here, there is no dispute as between the parents as to the appropriateness of the proposed medical treatment for Jordan.  However, some types of medical treatment or medical procedures fall outside the scope of parental responsibility and require authorisation by this Court, pursuant to its welfare jurisdiction as contained in s 67ZC of the Act.
5.	I should also observe that sometimes children who have not yet obtained the age of 18 years have the capacity themselves to consent to, or authorise, medical treatment.  In this case, as will be further discussed, the expert medical evidence is, in summary, to the effect that whilst Jordan has some understanding and insight and certainly his own views and wishes about what should occur, his treating expert medical witnesses are not satisfied, given the complexities of the issues involved, that Jordan has a complete or full understanding of what is proposed by way of treatment and its potential consequences.
6.	On that basis, both of the treating medical experts I have referred to express views to the effect that Jordan does not yet have what is referred to as Gillick competency, being a reference to a decision in England, adopted in Australia, as to the level of competency required for a minor to be able to consent, themselves, to their own treatment.  
7.	In Re: Jamie, the Full Court of this Court unanimously held that for a 
non-Gillick competent child Stage 2 treatment for Gender Dysphoria, being the administration of either oestrogen or testosterone to bring about the onset of male or female puberty, is treatment falling within the narrow band of “special cases” requiring this Court’s authorisation, as it will have irreversible consequences.  Thus, the Court will only grant authorisation if the proposed Stage 2 treatment is in Jordan’s best interests.  
8.	The parents’ application is supported not only by their own affidavits, but by the expert evidence of Jordan’s treating experts.  Professor X is a consultant physician in paediatrics and a consultant endocrinologist, and has provided an affidavit and report.  Dr T is a child psychologist and Dr M is a child and adolescent psychiatrist, and likewise, those experts have provided reports.  Each of those experts provide to the Court their respective curriculum vitaes and I am satisfied that each have specialised knowledge based on the person’s training, study or experience within the meaning of s 79 of the Evidence Act 1995 (Cth).  I am also satisfied that each has given careful and thoughtful consideration to the opinions they have expressed, and I accept their opinions.
9.	In addition to the material referred to, I have given leave, under s 100B of the Act, for an affidavit to be filed by Jordan.  I have also granted leave for Jordan to be present during the hearing of the application.  In my judgment, Jordan has a right to be heard in the proceedings, and receipt of his affidavit is one method of the Court achieving that.  I am also mindful of Jordan’s age and obvious level of maturity evidenced in the material in support of the application.  I also note that in Re: Jamie the Full Court held that weight should be given to a child’s view in Jordan’s circumstances, given his age and level of maturity and as it seems to me, receipt of an affidavit from Jordan allows his views properly to be considered.
10.	I should record that the application has been served, in accordance with the Family Law Rules 2004 (Cth), upon the prescribed child welfare authority.  An appearance has been made by Mr S, solicitor, on behalf of the relevant State Government Department (“the Department”).  The Department, effectively, is amicus curiae, in that the Department does not seek to contradict the application.  I mention only that the affidavit of Ms R, filed on behalf of the Department, makes some reference to the appointment of an Independent Children’s Lawyer to independently represent Jordan’s interests in the proceedings.  I am satisfied that, in the circumstances of this case, such an appointment would be superfluous in terms of the Court being able to adequately exercise its welfare jurisdiction, under s 67ZC of the Act, in Jordan’s best interests.  Having regard to the statutory role of an Independent Children’s Lawyer, as expressed in s 68LA, it seems to me that there would be no work left to do for an Independent Children’s Lawyer, in terms of the gathering of the expert evidence that has been gathered and obtaining the evidence to put before the Court any views expressed by Jordan.  In this case, there is unanimity amongst the medical experts, and between Jordan and his parents, as to the proposed treatment, and the affidavit material from the experts, and Jordan’s parents, and Jordan himself, contain consistent accounts of Jordan’s strong and considered views.  
11.	Jordan was born genetically and anatomically as a female.  However, he has identified exclusively as a male for some time, and his parents have recently changed his name on their Medicare card and his birth certificate to Jordan, albeit that the birth certificate still records Jordan as female.
12.	There is unanimous expert evidence that Jordan fulfils the DSM-5 Diagnostic Criteria for Gender Dysphoria (in Adolescents or Adults).  I note the expert evidence that there is no endocrine or genetic abnormality which may be causing Jordan’s Gender Dysphoria.  
13.	According to his parents, Jordan has been perceived as a tomboy since he was a child.  Jordan’s mother deposes that:
… from a young age, [Jordan] wanted his hair cut short and would not wear dresses and other flowery clothes.
Further, when his mother bought Jordan stereotypical girls toys, he:
… was not interested in playing with dolls, except when there were girls visiting the house.  In playing with girls, [Jordan] would pretend that his doll was a boy.
14.	During his interviews with child psychiatrist, Dr M, Jordan spoke of his first memory at the age of four, when he recalls a parent at preschool calling him a boy, and remembers that this “felt great”.  In Year 4, Jordan became increasingly reluctant to wear skirts or other female clothing, and preferred wearing male clothes or unisex school uniforms.  At that time, Jordan reported to Dr T that he continued to view himself a “girl who was a tomboy, who just liked doing boy things”.  Jordan recalls that from Year 6 he started to think that:
I had the mentality of a boy.  It didn’t worry me.  I thought that was what a tomboy was … a girl with the mentality of a boy, of a dude … a girl with the mentality of the opposite sex.
15.	In Year 7 Jordan became increasingly conflicted about whether he was a girl or a boy.  However, it was not until year 8, being the commencement of high school and the onset of puberty (including breast growth and menses) that Jordan’s sense of Gender Dysphoria rapidly developed.  Over the next two years, Jordan described to Dr T his escalating realisation that “I was not like other girls.”  Jordan began wearing two bras in an attempt to bind his growing breasts, and described “hating” his periods.  Further, during this period Jordan described feeling moody, dysphoric and nihilistic about the future.
16.	As Jordan moved through female puberty and continued to develop female characteristics he described feeling increasingly depressed and having suicidal thoughts, believing that he could not continue to live trapped in a female body.  He reported being unable to look in mirrors, binding his breasts and stopped eating, which caused him to lose weight and reduce the size of his breasts, which helped him. 
17.	In May 2013, when Jordan was in Year 10, he came across a transgender blog while surfing the Internet.  At paragraph 20 of his affidavit, Dr T deposes:
[Jordan] clearly described ‘relief’ at realising that he was not the only one going through this process;  “there were others that felt the same way as me.”  He strongly identified with the transgendered interests and behaviours of other individuals on transgendered blog site/s, and “I began to realise that I might be normal … Others were going through a similar thing to me too.”
Dr T goes on to say:
He stated to me that he realised that “I had the mentality of a dude … not the mentality of a girl.”
18.	Jordan reported to Dr T that at this time he began to realise that his tomboy behaviours of his childhood were actually transgendered in nature.  Shortly thereafter, Jordan reported to his mother what he was feeling, and then told his father and older brother, all of whom were very supportive.  From that time, Jordan requested that his family address him as Jordan, and he has been living as a male at home ever since.
19.	That same year, Jordan also began living as a male at school and started wearing the male uniform.  Jordan and his mother approached the school principal, who was very supportive, and arranged for Jordan to have keys to the unisex toilet and referred Jordan to a general practitioner.  Shortly thereafter, in mid-2013, Jordan began attending upon Ms W, a mental health therapist who has expertise in supporting transgendered young people.  Jordan reported to Dr T that he found Ms W to be very supportive, however his low moods persisted, perpetuated by his Gender Dysphoria and “abhorrence about his female body habitus and his periods.”
20.	In November 2013 Jordan first attended upon Dr T who conducted an Initial Mental State examination and assessed that Jordan fulfilled the diagnostic criteria for Gender Dysphoria.  Dr T referred Jordan to Professor X, a paediatric endocrinologist, who first met with Jordan on 12 February 2014.  Professor X assessed that there is no endocrine or genetic abnormality which may be causing Jordan’s Gender Dysphoria.  On 12 February 2014, Professor X commenced Jordan on Stage 1 reversible hormone treatment, with IM Depot Lupron to suppress Jordan’s female pubertal development.
21.	Jordan has received the Stage 1 treatment at three-monthly intervals and, so far, there have not been any problems with the treatment.  As a result of the Stage 1 treatment, Jordan’s female pubertal development and menstruation have ceased, although he continues to bind his breasts.  At page 21 of his report, Dr M summarises Jordan’s feelings and mental status since he started the Stage 1 treatment as follows:
Since commencing treatment and being involved with the … Hospital Jordan reports that he is no longer depressed, he is no longer suicidal, he is once again feeling happy, he is enjoying life, he is enjoying school, he is studying and achieving well academically, and has been seeing a Psychologist on a monthly basis which has been helping him work through and sort things out in his own mind.  He is now living exclusively as a boy, at school he wears the boy uniform, he has a private toilet, most of his friends are boys and most people refer to him and speak of him as a boy.  His interests are drawing, kayaking, martial arts, gaming and at times watching TV.
22.	The proposed treatment is called Intramuscular Primoteston TM (testosterone enanthate), more commonly referred to as male pubertal induction which is essentially a cross-hormone treatment with testosterone.  The result of this treatment is that it will induce male puberty.  The treatment will be administered by intramuscular testosterone injections of 25mg/m2 every two weeks, increasing at six monthly intervals to a maximum of 100mg/m2 every two weeks.  At the same time Professor X will continue to administer the Depot Lucrin treatments which will supress the onset of female puberty and also closely supervise the proposed cross-hormone treatment by arranging for baseline and ongoing endocrine and biochemical tests.  Further, Jordan and his family will continue to be offered mental health support, and I note that such support extends to the offer from the Department, as referred to in Ms R’s affidavit.  
23.	The proposed treatment for Jordan is classed as Stage 2 treatment in medical and legal terms, which means that the treatment will induce irreversible consequences for Jordan.  There is evidence that the treatment will bring about irreversible physical changes in Jordan, including deepening of his voice, increased muscle mass and decreased fat mass, increased facial hair and acne, the potential for male pattern baldness and increased libido, clitoromegaly (which is abnormal enlargement of the clitoris), temporary or permanent decreased fertility and, usually, cessation of menses.  
24.	I note that in the opinions of both Professor X and Dr T surgical intervention, mastectomy or breast reduction and gender reassignment, should only be considered after Jordan is 18 years of age.  
25.	I record that Jordan has stated to his parents and to his treating medical practitioners and now, to the Court via his affidavit, that he agrees to and wishes to undergo the proposed hormone treatment.  Each of Dr T and Professor X depose that whilst Jordan has fully participated in the decision to commence Stage 2 treatment and understands its nature and effects, they do not consider him to be presently Gillick competent.
26.	In particular, Dr T deposes that, whilst Jordan understands the nature and effect of commencing Stage 2 treatment, Gillick competency requires:
… understanding fully the nature and effects of decisions about the matter.  In this case, it would include the nature and effects not only of commencing hormone treatment, but also of irreversible, lifelong hormone therapy.  
27.	On the evidence before me, including the specific passages of the Clinical Practice Guidelines to which Dr T has referred, there are a number of serious medical conditions that can be exacerbated by cross-sex hormone therapy, including breast or uterine cancer, erythrocytosis (which is elevated red blood cell counts, which can lead to increased stroke and myocardial infarction risk), liver dysfunction and hypertension.
28.	In light of these concerns Dr T and Professor X do not believe Jordan could understand the grave possible medical consequences of lifelong hormone treatment.  Dr T opines that, given the grave consequences, he is not persuaded that:
… most minors would be in the position to fully understand the implications of irreversible hormone treatment over the entire lifespan.
29.	Based on the evidence of Dr T and Professor X, which I accept, I find that Jordan is not Gillick competent in that he has not “achieve[d] a sufficient understanding and intelligence to enable him … to understand fully what is proposed.”
30.	In Re: Jamie the Full Court of this Court unanimously held that Stage 2 treatment for Gender Dysphoria, being the administration of testosterone to bring about the onset of male puberty is treatment falling within the narrow band of “special cases” requiring this Court’s authorisation as it will have irreversible consequences.
31.	Thus the Court will only grant authorisation if the proposed Stage 2 treatment is determined to be in Jordan’s best interests. 
Is authorisation in Jordan’s best interests?  
32.	The question for this Court in the exercise of the welfare jurisdiction referred to is whether authorisation is in Jordan’s best interests within the meaning of the Act.  A number of central features appear in the medical and other evidence before me, which I accept, as to why authorisation of the proposed Stage 2 treatment is in Jordan’s best interests. 
33.	In particular, the evidence reveals the following.  First, in the opinion of Jordan’s highly qualified treating medical practitioners, being a paediatric psychiatrist and a paediatric endocrinologist, the proposed treatment is in Jordan’s best interests as it would bring about positive psychological and social consequences for Jordan and significantly decrease Jordan’s mental stress and further reduce the risk of further mental health problems.
34.	Next, Jordan has lived as a male for over 12 months during which time he has undergone the Stage 1 treatment to suppress female puberty and both his parents and his medical practitioners have observed the positive effects on his mood, academic performance and social interaction as a result of this.  
35.	Next, if Jordan is not treated with testosterone he is likely to continue to experience ongoing Gender Dysphoria, which can lead to associated mental health issues including depression, anxiety, social isolation, suicidal thought and self-harming behaviours.
36.	Next, Jordan views his treatment as a continuum.  His Stage 1 treatment has suppressed his female puberty but he wishes to proceed to cross-hormone treatment for masculinisation as soon as he is able.  If Jordan does not receive Stage 2 treatment he will continue to live as a “genetic female” with suppressed female puberty which would cause him considerable mental distress.  
37.	Next, if Jordan does not receive the testosterone treatment he may attempt to illicitly source testosterone products.  That is by the Internet or other means, and self-administer them without appropriate medical supervision, which would pose a severe risk to Jordan’s health.
38.	Next, although it is possible to defer his testosterone treatment until he is 18 years of age the medical experts involved do not believe a delay of treatment would serve any purpose.  Rather, due to the ongoing nature of Jordan’s Gender Dysphoria, which is unlikely to desist, any delay in the proposed treatment would significantly exacerbate his symptoms of social isolation, anxiety, and increase the risks of depression which is currently in remission.
39.	The proposed testosterone treatment is:
… recommended because it is the only treatment for female to male Gender Dysphoria that meets best practice guidelines,
according to both Dr T and Professor X.  
40.	Next, the proposed treatment is clearly aligned with Jordan’s consistent and express desire to be a boy, which desire has been apparent since childhood and has only intensified.
41.	Finally, Jordan’s parents plainly love Jordan and are caring of him and I take into account that they have given thoughtful consideration to the proposed treatment as being in Jordan’s best interests in ultimately reaching their agreement with the proposed treatment.  It is significant that both Dr T and Professor X state that there is no alternate treatment available for Jordan.  The proposed Stage 2 treatment is consistent with internationally recognised guidelines and has been utilised in other hospitals throughout Australia to treat Gender Dysphoria.  A copy of those guidelines is annexed to the affidavits of 
Dr T and Professor X.
42.	Further, the proposed treatment is consistent with that which has been the subject of a number of cases in this Court concerning the treatment of Gender Dysphoria, formerly described as Gender Identity Disorder.  
43.	I have earlier outlined the very significant risks associated with the proposed treatment, all of which Jordan would be exposed to.  Whilst these risks cannot be eliminated they can be closely monitored.  Jordan has access to highly qualified specialists with particular expertise in their areas of medical practice, including Professor X who will closely supervise the treatment and Dr T who will provide ongoing mental health support to Jordan and his family.
44.	Further, as earlier noted, the treatment will have irreversible effects on Jordan’s physical appearance.  However, based on the expert medical evidence, male pubertal induction is in Jordan’s best interests, particularly as it is the only treatment for Jordan’s Gender Dysphoria and is in line with Jordan’s expressed wishes.  Further, in concluding that the proposed treatment is necessary for Jordan’s welfare Dr T states at [71] and [72] of his report:
71.	[Jordan] has consistently described significant mental health problems which are directly associated with his Gender Dysphoria.  It is my view that the proposed hormone treatment will reduce the risk of a recurrence in these mental health issues, although ongoing psychological support during the proposed hormone treatment has also been recommended.
72.	From a mental health and psychiatric viewpoint, I believe that irreversible hormone treatment with testosterone is necessary for [Jordan’s] welfare and I strongly support the making of an application to the Family Court for authorisation for that hormone treatment to be given.
In summary, it can thus be seen that, whilst there are significant risks associated with the proposed procedure, there are overwhelming balancing considerations as to these risks.  
45.	The benefits that the procedure and treatment would bring to Jordan’s life and the avoidance of drastic detriments identified in the alternatives is determinative that the treatment will meet Jordan’s best interests.  For these reasons I am satisfied that it is consistent with Jordan’s best interests that these benefits should be taken advantage of and that the proposed treatment ought be authorised in Jordan’s best interests.  
46.	For these reasons I make orders in terms of the orders set out in the Initiating Application filed on 24 February 2015 with only the minor variation to paragraph 2 to delete reference to the name of the family report writer.
47.	It remains only for the Court to observe that Jordan has shown remarkable courage and fortitude in a person as young as he is.  He no doubt will face challenges ahead of him but that feature and the fact that he has such loving and devoted parents gives considerable cause for optimism as to him rising to those challenges.  
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 12 March 2015.

Associate:  

Date:  12 March 2015