CASE SCHOOL OF LAW HEALTH MATRIX:
Journal of Law-Medicine
Volume 15
,
Summer 2005, Number 2
ETHICAL CONCERNS RELATED
TO
TREATING
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 psychosocial support and
counseling, physicians and psychiatrists treating Alex proposed to begin, as
the first stage of medical treatment, the continuous administration of estrogen
and progesterone to suppress Alex’s menses. The treating professionals asserted
that this initial treatment was reversible, but that it would delay the development
of undesired female sex characteristics.2 At sixteen, if Alex desired continued
treatment, the plan before the court called for the administration of a
subcutaneous testosterone implant, which would “induce irreversible
masculinisation such as voice change, muscle growth, facial and body hair,
growth of the clitoris and behavioral effects ‘that would make [Alex] more
assertive/aggressive and have a stronger sexual urge.”3 Treating physicians
would also administer a hypothalamic blocker which would reduce Alex’s
“estrogen secretion to prepubertal levels” and thus delay a female puberty.
In reaching its decision, the court carefully considered the testimony
of the child, interested relatives, experts, treating physicians, school
officials, the caseworker, and guardian, all of whom were in relative agreement
that the treatment should proceed given the emotional discomfort and social
adjustment problems the child currently experienced.4 Despite the concurrence
of interested parties, the court’s decision to allow treatment, including
hormonal treatment at age thirteen that will retard puberty and irreversible
treatment at age sixteen to masculinize the child, and to facilitate the
child’s psychosocial desire to present himself at school as a male including by
allowing a name change,5 was not
without substantial controversy in Australia. 6
Critics of Alex’s treatment were unlikely bedfellows. Some critics of
treatment argued that such life-altering elective treatment on children should
be avoided until the child has full decisional capacity. 7 Still others
questioned the moral and medical legitimacy of sex- change treatment for gender
dysphoria generally.8 And some in the lesbian and gay community argued that sex
reassignment is necessary only because society is intolerant to
gender-blending.9 Those in the feminist and other communities voiced one of the
major arguments against the judgment. They argued that the decision was the
result of patriarchal thinking.10
In brief, gender
identity disorder, also called gender identity dysphoria (GID), is defined in
the medical and psychological community as the strong and persistent disturbing
belief for at least two years, that one is actually a member of the opposite
sex.11 The ethical dilemma of whether and how to treat children and adolescents
with GID is particularly difficult to sort through in the abstract. In Alex’s
case, to do no intervention, i.e., to allow the child’s reproductive and
associated physiological characteristics to emerge at puberty, had
consequences. Future treatment to reassign sex would have to be more extensive
if the undesired female characteristics had been allowed to emerge. And some
authorities suggest that earlier intervention yields a more satisfactory
anatomical and psychological outcome.12 Most crucially, Alex had demonstrated
self-harm and threatened suicide should his request be denied.13 Thus, doing
nothing not only was dangerous but amounted to doing something.
It is undoubtedly tough to be a transgendered minor.14 As the court was
well aware, Alex’s depression, suicide risk, and serious social problems at
school were so troubling as to require some form of intervention. These
psychosocial symptoms can also have lifetime consequences. The emergence of
unwanted sex characteristics was producing in Alex its own
psychic pain as well. Moreover, Alex’s attempts to present himself publicly as a
male when his physical appearance was female would likely lead to social
stigmatization, rejection, and harassment during his teen years.
While Alex needed something to be done, the other concern is that
treatment to facilitate sex change in an adolescent may be premature. Studies
suggest that gender identity is fluid in childhood and even, although less so,
into adolescence.15 GID in childhood very often does not persist into
adulthood, and adolescent manifestations of GID sometimes do not continue into
adulthood.16 In many instances, the adult outcome of childhood and adolescent
GID manifests as homosexuality without the gender dysphoria. Thus, for the
adolescent, even allowing reversible treatment and allowing the adolescent to
present in the opposite sex has future consequences if it solidifies a gender
presentation that might have otherwise been later abandoned.
The issues surrounding treatment of children prior to puberty is even
more difficult than that posed by treatment in adolescence. In children the
issue is not whether to facilitate change, since hormonal treatment is not
recommended prior to the onset of puberty, but instead whether GID can or
should be suppressed. Currently there is insufficient data to know whether
psychiatric treatment can reduce gender dysphoria and change the adult outcome.
Moreover, as for psychiatric treatment to alleviate GID, one has to question
whether the motivation is to prevent GID or the more common resulting
homosexuality given that either outcome may occur. Although once considered so,
homosexuality is no longer considered a psychiatric condition, and therefore
treatment to prevent it would be inappropriate.17 On the other hand, GID
remains a disputable psychiatric disorder.18 Thus, if parents
desire such treatment, ethical issues arise concerning the objective of
treatment and whether parents have authority to consent to such treatment.
Put simply, there is no single answer as to how to treat children and
adolescents with GID. Instead, professionals must exercise clinical judgment in
developing and proposing a care plan. Even when sound clinical judgment is
exercised, there are substantial risks in treating and in not treating these
minors. In light of this, how best can the legal system assist children and
adolescents to achieve a satisfactory short and long term outcome? What role
can the law play in lessening the social and psychological problems of these
youth?
The Australian decision offers a window into the life of a minor with
GID. It provides courts with a roadmap as to how to participate in a
thoughtful, cautious, individualized and collaborative treatment plan. However,
while Re Alex is instructive, the authors note that, unless there is
disagreement among parents, physicians, and the child, in the United States,
generally parties need not seek judicial approval to provide care to minors.19
Courts in the United States exercise a more circumspect role in medical
decision making generally.20
This Article examines the Australian decision, discusses prevailing
views on treating GID in children and adolescents, and describes the real-life
difficulties these young people suffer. This Article further comments, that in
light of recent negative decisions in the United States concerning the legal
rights of transgendered individuals, less judicial involvement in deciding
whether and how to treat minors with GID is probably best. These medical
decisions should occur outside the judicial system when all the parties concur,
especially when the treatment falls within established standards of care. When
the parties do not concur,
other strategies need be considered, and it is here that Re Alex gives
us guidance.
The Article concludes by acknowledging that treatment decisions are
difficult, but must be made. The authors encourage that, whether these
decisions are made in court or by parents, in consultation with clinicians, all
medical decisions must be individualized. Decisions should be based on the
child’s needs, rather than by narrow views regarding gender variation. While
the child’s future decision-making capacity and autonomy should be preserved if
the child is not sufficiently mature to make decisions, these goals should not
be an impediment to treating the child who needs treatment now. In every case,
the decision as to whether and how to treat, has future consequences. Lastly,
the authors present for consideration several other matters that need attention
relative to a minor’s sexual transition.
II. THE
AUSTRALIAN APPROACH:
INDIVIDUALIZED, JUDICIALLY APPROVED
INTERVENTION
A. A Unique Judicial Role
A case of this type is more
certain to come before a court in Australia than in the United States. Under Australia’s Family Law Act of 1975, the Family Court of
Australia has jurisdiction over matters concerning the welfare of children.21
Family law is largely decided at the federal level, thus the standards
announced by the court are, except for the state of Western Australia,
precedential throughout the country. In a landmark 1992 Australian case,
concerning the sterilization of a mentally disabled minor, the court held that
parents lack authority to consent on behalf of their children to certain
medical decisions and that prior judicial authorization is necessary.22 The
court did not base its ruling on
the right to procreate, as decisions in the United States have done.23 It more
broadly held: “Court authorisation [to medical treatment] is required, first,
because of the significant risk of making the wrong decision, either as to a
child’s present or future capacity to consent or about what are the best
interests of a child who cannot consent, and secondly, because the consequences
of a wrong decision are particularly grave.”24
Since then, examples of medical care requiring prior judicial approval
in Australia have included harvesting bone marrow for the benefit of another
family member,25 the refusal of life-saving medical care,26 and sex
reassignment in an intersex child.27 Thus, the State (because Alex was a ward
of the State) was compelled to seek prior judicial approval, even if all the
interested parties, including Alex (a minor lacking capacity to consent), were
in agreement.28
The court concluded that the proposed treatment in this instance
required prior judicial approval under its case law:
[T]he treatment plan in the present case
falls within the category of cases that require court authorization. There are
significant risks attendant to embarking on a process that will alter a child
or young person who presents as physically of one sex in the direction of the
opposite sex, even where the Court is not asked to authorise surgery. Also, it
cannot be said on the evidence that the treatment is to cure a disease or
correct some malfunction.29
The court’s approach in deciding what
treatment Alex should receive was broadly inclusive. The court sought
participation and testimony from individuals with an interest in Alex’s care
and of those with particular expertise to aid the court. The court appointed a
Child Representative to represent Alex’s interests, in addition to Alex’s legal guardian
whose input was more parental.30 It invited participation from family members,
including the aunt with whom Alex resided, and from his estranged mother.31 The
court also allowed the Human Rights and Equal Opportunity Commission to
intervene and make “submissions on the human rights principles applicable to
the case.”32
In addition to testimony from various treating professionals,33 the
court obtained testimony from experts who reviewed Alex’s records and commented
upon the proposed treatment.34 The court asked its own questions about the
treatment, and required follow-up responses from the witnesses.35
The judge met privately with Alex, at the minor’s request, and noted that the
court was holding certain discussions with Alex confidential. 36 It heard
testimony from Alex’s aunt, and principals from Alex’s primary school and his
new secondary school.37 It obtained a family report from a psychologist who had
treated Alex.38
Early in the proceedings, the court delivered interim orders allowing
Alex to enroll in high school with a male first name.39 The court also issued
an interim order authorizing “reversible hormonal treatment,” in light of the
testimony of a treating psychiatrist that “the urgency of treatment is such
that it should begin as soon as possible.”40
As the court acknowledged,
evidence
. .
. was adduced though [sic] a hearing
process that differed in a number of respects from the traditional form.
[T]he procedural modifications to the hearing process enhanced the depth and
richness of the evidence, and thereby better served
the aim of an outcome which will be in Alex’s best interests.41
Specifically, the court explained that much of the evidence was taken
“in affidavit form,” the hearing itself was “inquisitorial rather than
adversarial”; it was conducted in a private conference room rather than in a
court room; it followed a “discussion format” that allowed for “a dialogue in
respect of each other’s evidence”; and it took place over a period of time so
that witnesses could consider and respond to the testimony of others.42 The
court characterized the hearing as “an orderly discussion between witnesses and
legal representatives .
. . and myself.”43
B. The Factual Circumstances
The case
involved a 13 year-old anatomical female diagnosed with gender identity
disorder who self-identified as a male.44 Alex’s troubled family and social history
are worth noting. Alex’s father, with whom he enjoyed a loving relationship,
one which he characterized as “like best friends,” died when Alex was five or
six years old.45 His death was “clearly devastating,” according to the court.46
Alex’s psychiatrist noted, “Alex reported being able to feel at times his
father was alive and able to communicate with him, [although] ‘[t]here is no
evidence of delusions’ and ‘[t]his phenomenon seemed consistent with his own
process of bereavement and socially not unacceptable way of managing the loss
of [his] father.”47
Alex regarded his mother as “affectionless and harsh.”48 After his
father’s death, Alex’s mother remarried and Alex’s stepfather sponsored their
entry to Australia.49 Alex arrived in Australia speaking little English.50
Relationships in the new family were unsatisfactory. At ten years of age Alex’s
mother told child protection workers “that she did not want Alex in her life
and did not want to see him again.”51 Alex was eventually removed from the home
and placed in substitute residential care.52 Although contacted by the
court, Alex’s mother did not participate in the instant proceedings. In 2001
Alex’s mother and step-father had written the court “renouncing their
relationship with Alex.”53
Although at the time of the hearing Alex resided with a maternal aunt,
he remained a ward of the State.54 Alex’s placement with the aunt had been
interrupted at one point, when, due to aggressive and suicidal behavior, Alex
was temporarily placed in foster care. This “breakdown” called attention to
Alex’s need for an assessment of his gender crises.55 A caseworker brought the
case for treatment on Alex’s behalf.56 As his caseworker described his earlier
placement,
[w]e had to put him in a placement. . . because he was actually threatening to
kill himself and saying he would rather be dead and didn’t want to live this
way, that he wasn’t a girl and didn’t want to be a girl. I felt very seriously
that he actually meant it.57
Alex’s male gender identity was reportedly persistent and longstanding.
58 For example, Alex reported to a psychiatrist that “[he] grew up in [his]
first years of life believing that [he] was a boy”59 and that “[he] has always
thought of [himself] as a boy.”60
Alex also attempted to present himself as a male to others even though
it caused social problems. He told others he was a boy and he used the boys’
restroom, even after being advised to use the girls’ restroom. When he was told
to use the girls’ restroom he “started wearing nappies to school and reported. . . that
[he] would not drink any liquids all day so that [he] did not need to use the
toilet during school time.”61
Alex’s tenacity eventually won out. Alex was so persistent that
his primary school finally accommodated him by allowing him to “use
the enclosed toilet for people with disabilities.”62 The principal of his grade school
stated that the staff and teachers eventually “accepted that [Alex] was
different,” explaining, “[s]o it was a matter of counseling the staff to say, ‘Well,
we need to accept this,’ and staff did.”63
Alex was eventually diagnosed with depression and gender identity
disorder at the age of twelve. The court considered Alex’s mental health
history in depth —
clearly suicide was on the minds of the
court and witnesses. Even in primary school, Alex’s severe depression and
suicidal ideation was alarming. The principal explained that he “was in my
office and [he] was definitely quite distraught and wanting to kill [himself]
because nobody was taking this whole thing seriously about gender.”64 The
treating psychiatrist said, “[t]here was no evidence of delusional disorder or
thought disorder’ and [his] orientation and cognition were intact.”65
Nevertheless, Alex “acknowledged having perceptual disturbances, that he would
hear his own voice or the voice of his father, and . . . said [that] ‘somebody can read my mind and the
thoughts in my mind.”66
In the application to approve treatment, Alex’s treating psychiatrist
wrote the following: “[T]he urgency of treatment is such that it should begin
as soon as possible. [Alex] says that if treatment is delayed and she [sic] has
to go to high school with the presence of periods and increasingly feminised
body, [he] will be extremely distressed and disadvantaged by that.”67
Alex’s psychiatrists also explored his sexual orientation, asking
whether his “wish for treatment emanates from his attraction to girls.”68
Alex’s caseworker, Ms. R., perhaps the one adult most like a parent figure, was
not entirely convinced that sexual orientation might indeed be at issue. She
testified:
[E]arly on I
actually raised the idea with him that he may simply have a same sex attraction
and that this is where his gender issues arise from. He quite vehemently denied
that it was anything to do with that. I’m still not totally convinced in every
single way possible that that isn’t part of the issue for him. We could
actually be looking at two separate issues rather than just one that’s all
indicative of the same thing. So I’ve always advocated that we take the
timely sort of approach and not rush into anything and have made sure that he
understands that there’s a whole range of people in the community and just
because he sees a man and a woman and a couple of children and that seems to be
the bulk of what he would be exposed to in his own life, that that does not
mean that that’s all there is in the world.
I take him to places . . . where he sees a far greater diversity of people and genders
and images and try and get him to see that may be a far more effeminate looking
male might walk past and a very much more masculinised looking woman might be
nearby and that this is a whole range of things and it’s quite acceptable to be
anywhere within that range and that as he gets older he has more power within
himself and more options about what he chooses for himself and that what he’s
dealing with right now doesn’t have to continue to be his reality. 69
The court considered the possibility that Alex’s gender identity might not yet
be fixed. The court acknowledged that, “with adolescent development Alex may
reconsider his gender identity as a male and that if such a change in
self-image transpires, he may come to view himself as a lesbian. It is not,
however, the current assessment of his state of mind and sense of self.” 70 Although the court acknowledged that Alex’s gender
identity and sexual orientation might change in time, it concluded:
In
light of the adamant nature of Alex’s gender identification and the on-going
concern as to how traumatised he would be if the proposed treatment were not to
otherwise go ahead, I would not delay treatment merely because of the
theoretical risk that Alex is constructing his self image as “really” male when
in fact he is “really” a female lesbian and will come to see himself that way
over time.
It is true that if Alex does shift in his self-perceptions after testosterone
has begun being administered he will have certain irreversible masculine
characteristics. I am satisfied, however, that in the course of the
proposed treatment, which includes ongoing psychological and psychiatric
assistance, there will be attention to whether there emerges a change in his
self-perceptions which impacts upon the treatment plan I am asked to
authorise.71
Thus, the
court had before it, a thirteen year-old female (as measured by gross anatomy
and reproductive physiology) with a persistent and longstanding male gender
identity, who presented a serious suicide risk, who had a depression rooted, at
least in part, in gender identity issues. Alex himself had a strong desire for
treatment, his legal guardian and his aunt supported treatment, and all the
professionals consulted concurred that treatment was appropriate.
The timing of the application in Alex’s case was fortuitous. At
the time of the application, the diagnosis had been established for nearly two
years by several treating psychiatrists. Alex had also begun to menstruate, and
clinical guidelines in treating GID “recommend that young people have had some
experience of themselves in the post-pubertal state of their biological sex
before starting any physical intervention.”72 The two years in which Alex had
been living as a boy also satisfied one of the criteria in establishing
suitability for surgical transition established by the Harry Benjamin
International Gender Dysphoria Association (HBIGDA). This is the professional
organization primarily concerned with the understanding and treatment of GID.73
In addition, this particular time presented a convenient opportunity to make an
easier transition, because Alex was about to switch from primary to secondary
school.74
C. Informed Consent
The court
considered Alex’s capacity to consent to the treatment. It assessed Alex’s maturity,
understanding of his condition, and intellectual capacity. Alex was described
as “mature” and “intelligent.”75 A
treating psychiatrist stated that he “fully understands at this stage the
mechanism of the action for the proposed hormone treatment, and side effects
and the benefits.” Nevertheless, the psychiatrist stated, “I believe that it is
not appropriate at age 13 [that he] should be wholly responsible for the
decision to undergo hormone treatment.”76 The court agreed, noting that with
regard to sex change treatment, “[i]t is highly questionable whether a 13 year
old could ever be regarded as having the capacity . . . and this situation may well continue until the young
person reaches maturity.”77 The court explained that while Alex lacked legal
capacity, his wishes were considered in light of his maturity:
In my view, the evidence does
not establish that Alex has the capacity to decide for himself whether to
consent to the proposed treatment. It is one thing for a child or young person
to have a general understanding of what is proposed and its effect but it is
quite another to conclude that he/she has sufficient maturity to fully
understand the grave nature and effects of the proposed treatment.
However, in the present case,
I have uncontroverted evidence not only that the proposed procedure is entirely
consistent with Alex’s wishes but also that the expert evidence as to the best
interests of Alex accords with those wishes.78
Thus, while the court considered Alex’s desires, it did not conclude that Alex
was sufficiently mature to make such a life-altering
decision without the additional safeguard of court approval.79
D. The Treatment Plan
In authorizing a
treatment plan, the court considered the justifications for and against
treatment and weighed the risks associated with both treatment
and nontreatment. The court accepted that Alex’s acute psychological distress
justified treatment now. It also acknowledged that his gender identity and
sexual orientation might change with maturity, but considered that experts in
Alex’s case discounted that possibility:
The evidence speaks with one voice as to
the distress that Alex is genuinely suffering in a body which feels alien to
him and disgusts him, particularly due to menstruation. It is also consistent
as to his unwavering and profound wish to present as the male he feels himself
to be. The possibility that Alex is an emerging lesbian has been considered but
not accepted by the two expert psychiatric witnesses who have assessed him.80
The court
considered lesser or alternative interventions, noting that, “[t]he prognosis
for behavioral intervention to change Alex’s self-image and behaviour is
poor.”81 The court weighed the risks, and here paid special attention to Alex’s
own appreciation of the consequences:
I have canvassed above the physical
consequences arising from each stage of treatment and I am satisfied that Alex
has the capacity and indeed does in fact know the side effects that may arise
and further that he wishes the proposed treatment with knowledge of such risks.
The social implications of the proposed treatment are that Alex will face
challenges in his chosen identity in respect of peer relationships, possible
bullying and ostracism, but I am satisfied that impressive steps have been
taken to anticipate such risks.
On the other side of the balance, if
treatment is not permitted there is consistent concern that Alex will revert to
unhappiness, behavioural difficulties at home and self-harming behaviour.
Socially, he will be significantly ill at ease with body and self-image during
his period of adolescent development until he is competent to make his own
treatment decision. Transition into a male public identity will be more
difficult than if it occurs at the commencement of secondary school.82
The
medical treatment the court approved would progress in two stages. The court
noted that, “Alex’s mental health and endocrinological treatment would be
monitored by a team approach” and that the orders of the court were intended to
allow “treatment opportunities” rather than “imposing a requirement of taking
such treatment.”83 The court authorized the reversible hormone treatment
commenced under its earlier interim orders to continue. The goal of the
reversible treatment was to suppress Alex’s menses.84
The court further authorized, subject to consensus and an evaluation of
his needs at that time, the institution of irreversible hormonal treatment at
the age of sixteen.85 That treatment would facilitate “masculinisation such as
voice change, muscle growth, facial and body hair, growth of the clitoris and
behavioural effects ‘that would make [Alex] more assertive/aggressive and have
a stronger sex urge.”86
The court also considered the social and educational risks in making the
transition. It issued orders to facilitate a social transition as well. The
court further authorized a name change and issued an order that Alex be allowed
to enroll in school under his new name.87 In weighing Alex’s best interests, it
also carefully considered evidence concerning how the school would assist and
protect Alex’s privacy and prevent stigmatization and bullying.88
The applicant did not seek any order to amend Alex’s designated sex on
his birth certificate, but the court criticized current laws that focus on
surgical reassignment as the sine qua non for changing the birth certificate:
I consider it is a matter of regret that a
number of Australian jurisdictions require surgery as a prerequisite to the
alteration of a transsexual person’s birth certificate in order for the record
to align a person’s sex with his/her chosen gender identity. This is of little help to someone
who is unable to undertake such surgery. The reasons may differ but for example
in the present case, a young person such as Alex, on the evidence, would not be
eligible for surgical intervention until at least the age of 18 years.89
The court
noted that requiring surgery as the test for birth certificate amendment could
cause hardship, embarrassment, and stigmatization to those who could not or
would not undergo surgery. As the court stated, “[a] requirement of surgery
seems to me to be a cruel and unnecessary restriction upon a person’s right to
be legally recognized in a sex which reflects the chosen gender identity and
would appear to have little justifications on grounds of principle.”90
Remarkably, the court also considered Alex’s financial future,
especially his ability to eventually pay for future treatment, including surgery.
In determining that Alex should remain a ward of the state while in the care of
his aunt, the court noted that medical and educational expenses would be
provided and that the state also usually offered transitional financial
assistance when the child reached majority. Moreover, in the case of disabled
children, the state might also provide some continued assistance after the age
of eighteen. Finally, because the aunt was being paid by the state for
providing care to Alex, and she was saving all such money for Alex in a joint
account, there would be money to pay for future treatment.91 This led the court
to conclude that Alex should remain a ward of the state.92
III. TREATING
GID IN CHILDREN AND ADOLESCENTS
The
following sections briefly explore the complexity of diagnosis and treatment of
GID in children and in adolescents. Treatment at each stage of life raises
unique ethical and medical dilemmas. In preadolescent children, the issue is
whether to offer therapy aimed directly at reducing gender nonconformity, in
hopes of preventing adult GID. Three
problems of such treatment are: (1) the lack of data supporting the efficacy of
such treatment; (2) the inappropriateness of preventing homosexuality as an end
goal of treatment; and (3) fundamental skepticism that gender identity
dysphoria should be classified as a disorder at all. As to this third problem,
many believe that GID, like homosexuality, should be seen as just another human
sexual variation rather than a psychosexual problem in need of treatment and
should therefore be removed as a DSM diagnosis.93 In adolescents, the ethical
problems involve whether to treat certain youth with persistent GID with
reversible and partially reversible hormonal treatment before adulthood when
psychosocial treatment alone does not alleviate their distress. The problems
here again are threefold: (1) the lack of solid data concerning who should be
treated; (2) whether such treatment is appropriate before adulthood; and (3)
whether the treatment might eventually prove disadvantageous.94
A. GID and
Treatment Options in Pre-Adolescents
GID in
adults is considered rare; however, accurate prevalence estimates vary
broadly.95 GID, which encompasses a spectrum of gender
discordances,96 is generally marked by “a strong and persistent cross-gender
identification and a persistent discomfort with their sex or a sense of
inappropriateness in the gender role of that sex.”97 The individual recognizes his or
her biological sex (sexual identity) but considers it inconsistent with gender
identity (how the individual prefers to see self within society). 98
The prevalence of childhood GID is not known with any certainty, and estimates
come principally from small studies and clinical experience. 99 Researchers
assume that it is more common in children than in adults, based on the
observation that the childhood diagnosis does not usually persist until
adulthood.100 In both adults and children, GID occurs more
frequently in males than females; the effect of social and cultural factors to explain
the differences is not clear.101 There is some support for the view that boys
are identified more often because “parents, teachers, and peers are less
tolerant of cross-gender behavior in boys... [and] girls may need to display
more cross-gender behavior than boys before a referral is initiated.102 Lev has
written:
Boys are punished (i.e., treated) for
gender-deviant behavior, whereas 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 typical and atypical gender identification and behaviors existing along a
spectrum. For instance, “[i]n the more extreme cases [diagnosis] will not be a
very difficult task. However, children may take a position anywhere between
‘typical for boys’ or ‘typical for girls’ on various dimensions.”107 A
diagnostician must distinguish between merely atypical gender manifestations
that remain within the “normal range.”108 Compounding the difficulties of
diagnosis even further, some children with GID keep their cross gender feelings
secret and are not diagnosed until adolescence.109
Treatment of childhood GID has evoked considerable controversy. First, the
diagnosis can be elusive because gender nonconformity does not always
constitute GID, and for some children, it appears self-limiting. The various
treatment options have not been tested, so there is the concern of subjecting
children to financially costly treatment that might be pointless, or worse,
harmful. Finally, depending on what outcome is desired, the treatment goal may
itself raise ethical issues.
In childhood, empirical studies demonstrate gender identity is not static and
children diagnosed with GID may not be so as adults.110 In fact, in the
majority of children, GID “remits by adolescence, if not earlier.”111 Follow-up
studies of boys who have GID indicate that “a desistance of GID with a
co-occurring homosexual orientation is the most common” outcome,112 while GID
may persist into adulthood for others, and for still others may desist “with a
co-occurring heterosexual sexual
orientation.”113 Less is known about the outcome in girls because “insufficient
numbers of girls with GID have been followed prospectively to draw conclusions
about long-term outcome.”114
There is some professional thought that intervention with young children
can alleviate GID, although this treatment option is not without critics.”115
Certainly some proponents of early intervention justify it based upon a
religious or moral conservatism.”116 In response to the Re Alex decision,
religious factions were among the more vocal in expressing objection to the
court’s decision to allow treatment facilitating transition.117 But others,
such as Zucker, acknowledge the complexity of early treatment decisions and
assert that treating GID remains an ethical choice in certain cases:
Any contemporary child clinician
responsible for the therapeutic care of children and adolescents with GID will
quickly be introduced to complex social and ethical issues pertaining to the
politics of sex and gender in a post-modern Western culture and have to think
them through carefully.. .
. If parents request treatment for their
child with GID to divert the probability of a later homosexual orientation,
what is the appropriate clinical response? Perhaps the most acute ethical issue concerns the
relations between GID and a later homosexual orientation. As noted earlier,
follow-up studies of boys with GID, largely untreated, indicate that
homosexuality is the most common long-term psychosexual outcome. Some parents
of children with GID request treatment, partly with an eye towards preventing
subsequent homosexuality in their child, whether this is because of personal
values, concerns about stigmatization, or for other reasons.118
Zucker points out that it “has [not] been shown that any form of
treatment for GID during childhood affects later sexual orientation” and
“[f]rom an ethical standpoint. .
. the clinician has an obligation to inform parents about the state of
the empiric database.”119 Zucker also cautions that the clinician must explain
the “distinctness” of sexual orientation and gender identity in their
“[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 during therapy
sessions and extinction of cross-gender behavior, gradual shaping of
gender-typical behavior, and desensitizing fear of failure.”124
However, the efficacy of treatment is currently uncertain as Zucker
acknowledges:
For children who have GID, clinical
experience suggests that psychosocial treatments can be effective in reducing
the gender dysphoria .
. . . In considering these various therapeutic
approaches, one important sobering fact should be contemplated. With the
exception of a series of intrasubject behavior therapy case reports from the
1970s, no randomized controlled treatment trial can be found in the literature.
Thus, the treating clinician must rely largely on the ‘clinical wisdom’ that
has accumulated in the case report literature and the conceptual underpinnings
that inform the various approaches to intervention.125
There is no
consensus concerning treatment of childhood GID aimed at preventing either
adult GTD or homosexuality. For instance, “[some therapists treat the children
to prevent homosexuality [while] [m]any [therapists and others] consider this
to be unethical, because homosexuality is not a psychiatric disorder.”126 Moreover,
with so little scientific support of the efficacy of treatment, some question
whether treatment to cure GID can be justified under any circumstance:
Despite the many treatment approaches,
controlled studies do not exist. It is therefore still unclear whether (an
extreme) GID in childhood can truly be cured. Whether homosexuality or
transsexualism can be prevented by psychological interventions before puberty
also remains to be demonstrated. Nothing is known about the relative
effectiveness of various treatment methods. . . . Pending
controlled studies, psychotherapy directly aimed at curing GID has no place in
the treatment arsenal. 127
Some commentators
argue that it is society’s treatment of those with nonconforming gender or
orientation that is pathological and children expressing nonconformity do not
have a disorder. Therefore, they argue, in children with GID, it is better to
try to reduce social stigma and treat symptoms such as depression, rather than
treating GID. Law professor Elvia R. Arriola criticizes early intervention in
GID geared to guiding children toward heterosexuality, arguing instead that
society should commit itself “to undoing the belief systems that keep people in
what Warren Blumenfeld calls ‘gender envelopes,’ which inhibit our personal
growth and our potential for living happy and creative lives.”128 Because
studies show that many children who are diagnosed with GID eventually prefer homosexual
activities, she argues that treating these children with a goal to have them
become heterosexually oriented adults perpetuates the view that homosexuality
is a mental disorder. She argues that society should accept atypical gender
presentations; that they are not pathological. Moreover, she argues that since
homosexuality is not a recognized disorder, it is unethical to treat GID, since
it is often merely a precursor to homosexuality. She argues that “the current
availability of a mental health diagnosis of GID . . . replaces the forms of reparative therapies129
supposedly set aside when homosexuality was removed from the official list of
mental disorders in 1973 and therefore the basis of GID is blatantly homophobic
”130
The Harry Benjamin Standards of
Care acknowledges the possibility of intervening to affect outcome but stops
short of endorsing treatment aimed at “curing” GID, stating “[t]he younger the
child the less certain and perhaps more malleable the outcome.”131 In treating
children, its Standards of Care advise attending more to psychosocial issues
surrounding the diagnosis, rather than offering a clear prescription for
treating it.132 No one disputes that,
at the very least, the psychological distress, stigma, interpersonal
difficulties, and depression associated with GID should be treated.
Cohen-Kettenis and Pfäfflin write: “[E]ven therapists of opposing backgrounds
will agree that certain forms of suffering should be alleviated under all
circumstances. Such distress may come from social ostracism, non-GID
psychiatric or family problems, or intense unhappiness about one’s sex
characteristics and being a boy or a girl.”133 Co-existing problems might even
be of greater concern than those associated with gender.134
One final problem with diagnosing a child or adolescent with GID as
stipulated in the DSM is that the individual becomes labeled as having a mental
disease. The stigma alone can have deleterious effects.
B. GID in Adolescents
Gender becomes less fluid in adolescence; nevertheless the eventual outcome for
adolescents with GID still cannot be predicted with certainty. Studies reveal
that “there is a considerable narrowing of [gender] plasticity with age, with
regard to long-term gender identity differentiation.”135 The apparent fluidity
of gender identity in childhood, even into adolescence (albeit to a lesser
degree), coupled with inadequate empirical studies to predict outcome and
establish reliable treatment necessarily justifies a relatively cautious
approach in treating adolescents as well as children.136 Another crucial
factor, not mentioned before, needs be taken into account. It is now not
uncommon for many diagnosed with GID when adolescents to elect to live as
transsexuals without surgery as adults.137 Thus, treatment plans for adolescents
need not assume surgery will be the desired end result.
As with children, the ethical issues of whether and how to treat
adolescents is made difficult by the lack of solid research. But in
adolescents, the issue is not how to “prevent GID” but how much to facilitate
the gender transition. Zucker describes the difficulties of deciding when to
treat adolescents: “Although early hormonal treatment is controversial, it may
be the treatment of choice after the clinician is confident that other options
have been exhausted.”138 Importantly, clinicians must explore sexual
orientation with their adolescent patients and help them to determine whether
GID treatment is truly desirable.139
The HBIGDA Standards of Care allow in some cases more proactive medical
interventions for adolescents, including both reversible and partially
reversible (nonsurgical) interventions. The Standards of Care caution: “Before
any physical intervention is considered, extensive exploration of
psychological, family and social issues should be undertaken.” Furthermore, it
cautions that gender identity remains changeable and unsettled, “[i]dentity
beliefs in adolescents may become firmly held and strongly expressed, giving a
false impression of irreversibility; more fluidity may return at a later
stage.”140
Treatment in adolescents is divided into three stages: reversible,
puberty-delaying treatment; irreversible hormonal treatment; and surgical
interventions. As to surgery, HBIGDA states that this should be delayed until
the age of majority.141
Reversible treatment, according to HBIGDA is designed to delay
puberty. The standard of care permits “puberty-delaying hormones as soon as pubertal
changes have begun.”142 HBIGDA explains the justification for reversible
treatment:
Two goals justify this intervention: a) to
gain time to further explore the gender identity and other developmental issues
in psychotherapy; and b) to make passing easier if the adolescent continues to
pursue sex and gender change. 143
For some
adolescents who are trying to make a transition, early treatment may help
facilitate their psychological and social adjustment. Offering reversible
puberty-delaying treatment may help to alleviate the adolescent’s discomfort at
the prospect of developing unwanted sex characteristics.144 It makes it easier
to socially pass in the identified gender.145 It delays pubertal changes and so
makes a later transition surgically and psychologically easier.146 Moreover, it
can help to confirm the diagnosis; delaying puberty “gain[s} time to further
explore the gender identity and other developmental issues” while keeping the
maturing adolescent’s options open.147
HBIGDA Standards of Care also accept that “partially reversible
interventions” may be instituted in 16 year-olds with certain safeguards.148 HBIGDA does not
recommend surgical (irreversible) interventions until adulthood, and then only
after the two-year real-life experience (RLE)149 has been completed:
Irreversible Interventions.
Any surgical intervention should not be carried out prior to
adulthood, or prior to a real-life experience of at least two years in the
gender role of the sex with which the adolescent identifies. The threshold of
18 should be seen as an eligibility criterion and not an indication in itself
for active intervention.150
However, a recent
assessment of reported studies on surgical outcomes by a health technology
assessment group in New Zealand concluded that while studies to date were quite
limited, there was some indication that earlier surgery had a better outcome:
The quality of the evidence is poor and based on a small
number of studies with weak study designs and significant methodological
limitations.
The reviewed studies may indicate
that early, rather than delayed, sex reassignment surgery is of greater benefit
to transsexual
people who have gone through rigorous assessment procedures and have been
accepted for surgery.151
Thus it
may be that a “too cautious” approach can have its own negative consequences to
the outcome.152
Currently, whether and how to treat children and adolescents displaying
gender identity disorders involves making an individualized clinical
judgment.153 The HBIGDA Standards of Care offers guidance to physicians, rather
than any clear criteria for treating any particular individual. Moreover, the
Standards of Care acknowledge the “limitations of knowledge” in treating
children and adolescents and the need for further research.154 The recent New
Zealand review of studies, however, may lend some support for early surgery.
C. Alex’s Treatment Conforms to Standard Care
In Alex’s
case, the treatment proposed fell within the HBIGDA Standards of Care. First,
the treatment proposed began with fully reversible hormone blocking treatment.
Second, it would allow Alex to receive partially reversible hormonal medication
at the age of sixteen, allowing him time to mature and to determine whether he wanted to continue the course
of treatment. Third, the treatment was not objectionable to Alex or his
guardian. Fourth, the plan did not neglect Alex’s psychosocial needs and helped
him to make a successful transition. Finally, the court did not authorize
surgical treatment prior to Alex reaching the age of majority.155
Although the care afforded Alex conforms to standard care, the case is
nevertheless important and noteworthy. Alex’s case offers a rare and
comprehensive view into the life of a transsexual minor.156 A few
generalizations are evident. Developmentally, the gender and sexual orientation
of children and even young adolescents remains in flux and treatment must
therefore be well considered and cautious. There is urgency to the need to
treat them, however, because psychological distress, depression, and suicide
are real risks. The legal status of children and adolescents and their lack of
maturation may prevent them from consenting to treatment but their wishes must
be valued and respected. Society can be intolerant to gender incongruity and
adults must take responsibility for removing stigma and ostracism. The
condition is mysterious, rare, and complicated, so experts must be consulted
for diagnosis and treatment. Treatment in every case must be individualized and
responsive. For all these reasons, these youth are in for a difficult and
protracted struggle that will require them to have the support of adults and
social institutions.
The judge’s approach to Alex was extraordinary, exemplary,
compassionate, cautious, and well-informed. He was not bogged down with
rhetoric of gender construction. Alex’s dignity, best interest, current needs
and future potentiality were the court’s only concerns.
The role this judge assumed was equally extraordinary. In Judge
Nicholson, Alex found a father with whom to share the burden of this monumental
personal decision. It was as though the judge sat with Alex at the kitchen
table and asked the questions a good parent might ask of the child and of the
medical experts, in deciding what course to follow.
IV. THE COURT’S
ROLE IN THE UNITED STATES
Although no
published cases have considered the appropriateness of hormonal interventions,
there have been surprising glimmers of such understanding in judicial decisions
in the United States considering “real life” treatment of adolescent GID.157
The lack of cases may be because few
centers treat adolescents with hormones, or because such decisions need not go
to court in the United 158 Nevertheless, the several courts confronting issues
related to enforcing dress codes, which have had the effect of thwarting
psychiatrically approved treatment plans of gender variant youth, have
supported the adolescent in suits against educational and residential
institutions.159 These cases have been brought based upon state laws
prohibiting discrimination on the basis of disability.160 In each, judges have
recognized that GID
is not a lifestyle or behavior choice but the response to an inner compulsion
dictating one’s gender behaviors.
In Doe v. Yunits,161 a school district dress code prevented Pat
Doe, a biologic male fifteen year-old eighth grade student, from wearing female
clothing or accessories to school. Doe challenged the dress code, claiming that
it constituted discrimination on the basis of disability under the
Massachusetts Constitution,162 among other claims. The court denied the public
school’s motion to dismiss, concluding that GID did constitute a handicap as
defined by Massachusetts’s law.163 The school also moved for dismissal of the
claim that it had constructively expelled her by refusing to allow her to wear
female clothing. The court refused to dismiss Doe’s claim that constructive
expulsion constituted a due process violation, reasoning that refusing to allow
Doe to wear female clothing was no different than forbidding a diabetic to take
insulin during the school day or demanding that a five foot student not return
to school until she were six feet.164 The court noted that expert testimony
supported Doe’s allegation that “requiring Doe to wear boy’s clothing to school
would be... injurious to her psychiatric health.165
In Doe v. Bell,166 Jean Doe, a seventeen year-old diagnosed with
GID, had resided in foster care in New York State since the age of nine.
She had a persistent and intense “need to wear women’ s clothing and act as a
woman.” The court considered the testimony of her psychiatrist and an expert on
the treatment and its rationale:
[
T]he treatment plan for Jean Doe called
for Doe to dress according to her identity as a woman, including “wearing
girls’ clothing, accessories, and makeup, and sometimes other items to make
[herself] look .
. . more feminine, such as breast
enhancers.” Dr. Spritz explained the reason for such treatment:
“[t]he goal is to facilitate acceptance of the gender identity of a
transgendered person by allowing her to dress in a manner consistent with her
internal identity .
. . . Research has found that forcing
youths with GID to dress in conflict with their identity, though it may be in
harmony with their biological attributes, causes significant anxiety,
psychological harm, and antisocial behavior.” Her opinion was seconded by
Gerald P. Mallon, Phd., a Professor at the Hunter College School of Social Work
and founder of the Green Chimneys, Children Services Program for, inter alia,
transgendered youth, who expressed the opinion that “[t]he proper course of
treatment for transgendered boys is to allow them to wear feminine clothing in
an integrated environment.”167
Jean had earlier been
placed in “two group homes for gay, lesbian, bisexual, and transgendered youth”
but had been discharged from each for misconduct. 168 As the court described
her: “Jean Doe does have a history of being insubordinate, undisciplined, and
on occasion has been involved in violent altercations during her sojourn
through many foster homes, group homes and institutions.”169 Jean was then
placed in an all male facility, Atlantic Transitional. Atlantic Transitional restricted
her clothing options. For example, its director “issued a memorandum to the
staff explaining that Jean Doe was not permitted ‘to wear ‘female attire’ in
the facility. He can wear it only if he is walking directly out of the
facility. If he returns to the facility, he must be escorted to his room so he
can remove the female attire.’”170 Following a motion for a preliminary
injunction, Atlantic Transitional modified its policy to allow female attire,
but not skirts and dresses, providing that ‘“[r]esidents who wish to wear
female attire may do so as long as the above guidelines are respected. Female
attire that does not
conform to the policy may only be worn by a resident when leaving facility
premises.”171
At issue was whether, under New York State Human Rights Law, the
Administration for Children’s Services (ACS) and Atlantic Transitional Foster
Facility discriminated against Doe by enforcing a dress code that prohibited
Doe from wearing dresses and skirts. The court first considered whether Jean
was a disabled person under the protections of the law. The court noted that
New York law defines disability broadly, to include any “medically diagnosable
impairment” that is “demonstrable by medically accepted techniques” even if
that impairment does not “substantially limit that individual’s normal
activities.”172 It therefore held that Doe suffered a disability under New York
Law.173 The court also held that Atlantic Transitional failed to reasonably
accommodate her disability by not exempting her from the dress code. It
explained:
The evidence before the Court
establishes that, because of her disability, Jean Doe experiences significant
emotional distress if denied the right to wear such feminine clothing. Indeed,
the treatment she has received for her GID calls for her to wear feminine
clothing, including dresses and skirts. Granting her an exemption from the
dress policy avoids this psychological distress. Moreover, it allows Ms. Doe
the equal opportunity to use and enjoy the facilities at Atlantic Transitional — a right that would be denied to her if forced to
endure psychological distress as a result of the ACS’s dress policy.174
The court also
rejected Atlantic Transitional’s argument that permitting Doe to wear feminine
attire “would jeopardize the safety of the residents and staff’ and “threaten
the safety and security of the institution.”175 The court discounted “[t]he
premise of respondents’ argument that cross-dressing by a resident can lead to
unsafe sexual behavior and other inappropriate conduct,” pointing out that the
facility already “allowed [Jean] to wear fake breasts, make-up, women’s
blouses, scarves, nails, hair weaves and other female clothing.”176 It
concluded: “There is simply no rational basis for treating dresses and skirts differently than the other
feminine accoutrements which Jean Doe may now wear.”177
Atlantic Transitional, an all-male facility, argued that Jean Doe was merely
getting her “just desserts” because her own misconduct had led to her expulsion
from the gay, lesbian, bisexual, and transgendered youth facility and placement
in the all-male facility. Therefore, she should not be entitled to complain
about Atlantic Transitional’s rules. However, the court rejected its argument:
ACS’s obligation to act in a
nondiscriminatory fashion is not satisfied merely by providing a small number
of facilities at which children with GID are assured nondiscriminatory
treatment. At each and every facility run and operated by ACS, it must comply
with the Human Right Law’s mandate to provide reasonable accommodations to
persons with disabilities. That Doe engaged in misconduct . . . gives no license to discriminate against her by denying
her a reasonable accommodation.
Neither of these cases
involved a discussion of medical interventions, but in each case the court
supported and protected an adolescent implementing a psychiatrically approved
“real life” plan. These cases challenged social institutions to tolerate and
support gender variant youth, rather than demanding conformity.
These and other cases where courts have stepped up to support
sexual minority youth178 must be offset by the ever-present reality that not all judges are so
enlightened, perhaps especially so in the United 179 One need only consider the
narrow and unscientific concept
of gender espoused in Kantaras v. Kantaras,180 Littleton v. Prange,181 In re
Ladrach, 182 or In re Estate of Gardiner,183 to understand that not all judges can transcend their own
construction of gender and act as courageously as Judge Nicholson did when
asked to serve the needs of the child. The hostility of schools, courts, social
service agencies, and even parents to sexual minority youth is well
known.184 Thus, it is probably just as well that medical treatment decisions
concerning childhood and adolescent GID are not routinely put before the court.
However, when and if such a case comes to a United States judge, Re Alex offers
guidance on how to approach treatment issues and to serve the child’s best interests.185
We have attempted to
present some of the issues involved in Re Alex, a case that came before the
main Family Court of Australia, and relate it to how similar issues might be
dealt with in United States courts. When all parties agree (individual,
parents, guardian, therapists) such decisions are typically made outside the
legal system in the United States, and we concur that treatment decisions in
such cases best remain a decision of parents, children, and doctors, guided by
the child’s best interests and with due respect to the child’s maturity.
Of note, Wallbank, the barrister who successfully argued the landmark
Australian case Re Kevin, which established the right of a post-
operated transsexual to marry in the new sex,186 criticized the conclusion in Re
Alex that these decisions must be brought to the Australian courts.
She has recently argued that once the diagnosis of GID is established, it
should be accepted for minors as it is for adults with the result that remedial
treatment is supported even without resort to the courts.187 Wallbank has
observed that involving the courts only delays treatment and adds considerably
to the total cost.188
We agree with Walibank that these decisions should be made privately
when possible. However, when there is disagreement among the parties, there is
a role for family courts to see that all efforts are directed toward satisfying
the best interests of the minor. The ultimate decisions, whether made by court
or not, deserves consultation with clinicians and others drawn from the ranks
of experts qualified in transsexual matters. When a court is drawn into these
decisions, Judge Nicholson’s inquisitorial rather than adversarial approach is
certainly desirable. Courts considering these cases must take care, as did
Judge Nicholson, to preserve the privacy of the minor. Most transsexuals do not
seek publicity in their lives and public knowledge of gender transition can have
long-term effects in schooling, employment, insurance,189 medical treatment, and
in other regards.190
Judge Nicholson’s opinion is notable
because he made sure that Alex’s interests were paramount and his interests
were well represented. Finally, Judge Nicholson was also mindful of the child’s
environment and was able to fashion his orders to facilitate Alex’ s
transition.
In addition, in cases where there is disagreement, a court must examine
the premises on which parents or others object to or seek particular treatment.
While parents traditionally have substantial authority to consent to medical
treatment, parents should not be regarded as having the authority to either
force a child to submit to unsound, unproven, or unethical treatment that may
cause harm, or to deny children treatment that is in the child’s best interest.
When parental decisions do not serve the child’s interests the state has a
right and obligation to intervene.191
Like others, Wallbank also argued that the DSM IV, the Harry Benjamin
International Gender Dysphoria Association, and their various professional adherents
in the fields of psychiatry and psychology, are, though well intentioned, wrong
in their association of the conditions Gender DysphorialGender Identity
Disorder (on any form of mental disorder or confusion) with transsexualism at
any age and that, in continuing to do so, retards the development of proper
treatment regimes for children and adolescents.192 We
agree that in a more informed and tolerant society, variations in gender should
not be regarded as mental disorders and doing so causes unnecessary
stigmatization. We should examine ways to bring these cases in the human rights
context rather than as disability discrimination cases on the basis of a mental
disorder. Nevertheless, practically speaking, the classification of gender
identity dysphoria as a disorder has allowed courts to intervene to protect
minors, to prevent discrimination, and to promote more tolerant treatment of
gender variant youth.
In several other significant regards we are in full agreement with Chief
Justice Nicholson. We think it is unreasonable to require surgery for a legal
change in sexual status. As the court reasoned, we too believe the requirement
for surgery is inconsistent with human rights:
“The requirement is more disadvantageous and burdensome for people seeking
legal recognition of their transition from female to male than male to female. . .the requirement of surgery
is a form of indirect discrimination.”193 And we are in agreement regarding the
requirements for changing of one’s birth certificate. It can be detrimental to
self-image and overall social and geographic mobility for a minor to provide a
birth certificate antithetical to his or her self-image or bodily presentation.
We think there is no need for waiting either for the age of majority or for
requiring surgery.
The legal status of minors and adults poses challenging problems for
courts worldwide. With public awareness of an increasing number of persons undergoing transsexual
change this need will similarly increase. In 2002, the European Court of Human
Rights, considering a case brought before it from the United Kingdom upheld the
rights of post-operative transsexuals “to be recognized as members of their
post-operative sex and to receive all rights associated with their acquired
sex.”194 We think, along with similar decisions in other countries,195 the
United States too should recognize the human rights in- volved and accord full
rights to those citizens with a transsexual con- dition. Moreover, because the
transition, either in adulthood, but especially in childhood and adolescence,
can be protracted and surgery is increasingly not necessarily the endpoint, it
is far better, rather than accepting outdated concepts, to welcome the latest
scientific under- standings of identity development and to recognize a wide
range of gender variation as a reality of the human condition. 196
________
NOTES:
*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 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.
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 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).
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. 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.
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).
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.
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.
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-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.
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.
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.
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.
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.
80 ReAlex,
180 Fam. L. R. at 125.
81 Id.
82
Id. at 126.
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.
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.
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 prevalence 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 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.
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.
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)).
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.
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.
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.
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:
Psychological and Social Interventions.
The task of the child-specialist
mental health professional is to provide assessment and treatment that broadly
conforms to the following guidelines:
1. The professional should recognize and
accept the gender identity problem. Acceptance and removal of secrecy can bring
considerable relief.
2. The assessment should explore the nature and characteristics of the child’s
or adolescent’s gender identity. A complete psychodiagnostic and psychiatric
assessment should be performed. A complete assessment should include a family
evaluation, because other emotional and behavioral problems are very common,
and unresolved issues in the child’s environment are often present.
3. Therapy should focus on ameliorating any comorbid problems in the child’s
life, and on reducing distress the child experiences from his or her gender
identity problem and other difficulties. The child and family should be
supported in making difficult decisions regarding the extent to which to allow
the child to assume a gender role consistent with his or her gender identity.
This includes issues of whether to inform others of the child’s
situation, and how others in the child’s life should respond; for example,
whether the child should attend school using a name and clothing opposite to
his or her sex of assignment. They should also be supported in tolerating
uncertainty and anxiety in relation to the child’s gender expression and how
best to manage it. Professional network meetings can be very useful in finding
appropriate solutions to these problems.
Id.
133 COHEN-KETrENIS &
PFAFFLIN, supra note 99, at 121. See
also Zucker, Gender Identity Disorder, supra note 99, at 748
(finding similar sources of distress).
134 See Ritch C. Savin-Williams & Kenneth
M. Cohen, Homoerotic Development During Childhood and Adolescence, 13 CHILD &
ADOLESCENT PSYCHIATIC CLINICS OF N.
AM. 529, 529-51(2004) (discussing treating individuals with homosexual
orientation and commenting “[e]ffective clinicians recognize that homosexuality
does not lead to pathology (society’s reaction to it does)”).
135 Zucker, Gender Identity, supra note 101, at 557.
136 Zucker, Gender Identity Disorders, supra note 99, at 749-50.
137 Milton Diamond, What’s In a Name? Some Terms Used In the
Discussion of Sex and Gender, 102
TRANSGENDER TAPESTRY J. 19 (2003).
138 Zucker, Gender Identity, supra note 101, at 565.
139Id.
140 HBIGDA SOC, supra note 95.
141Id.
142 Id. For puberty delay it advises, “[b]iologic males should
be treated with LHRH agonists (which stop LH secretion and therefore
testosterone secretion), or with progestins or antiandrogens (which block
testosterone secretion or neutralize testosterone action). Biologic females
should be treated with LHRH agonists or with sufficient progestins (which stop
the production of estrogens and progesterone) to stop menstruation.” Id.
143 The SOC criteria for eligibility for reversible
treatment state:
In order to provide puberty delaying
hormones to an adolescent, the following criteria must be met:
1. throughout childhood the adolescent has demonstrated an intense pattern of
cross-sex and cross-gender identity and aversion to expected gender role
behaviors;
2. sex and gender discomfort has significantly increased with the onset of
puberty;
3. the family consents and participates in the therapy.
Id.
144 See generally COHEN-KETTENIS &
PFAFFLIN, supra note 99,
at 144-46.
Clinical judgment is essential in determining which adolescents should have treatment.
Id. In order to be informed and to test the diagnosis, most clinicians
recommend allowing the adolescent to experience at least some pubertal change. Id. at 145.
145 Id. For anatomic males, medication can suppress “facial hair
growth and voice deepening, which make it more difficult to pass in the female
social role.” Zucker, Gender Identity,
supra note 101, at 565.
146 See COHEN-KETTENIS &
PFAFFLIN, supra note 99,
at 140-41; Zucker, Gender Identity,
supra note 101, at 565.
147 COHEN-KETTENIS & PFAFFUN, supra note 99, at 145.
148 The Standards of Care state:
Partially Reversible Interventions. Adolescents may be eligible to begin
masculinizing or feminizing hormone therapy, as early as age 16, preferably
with parental consent. In many countries 16-year olds are legal adults for
medical decision-making, and do not require parental consent.
Mental health professional involvement is an eligibility requirement for
triadic therapy during adolescence. For the implementation of the real-life
experience or hormone therapy, the mental health professional should be involved
with the patient and family for a minimum of six months. While the number of
sessions during this six-month period rests upon the clinicians judgment, the
intent is that hormones and the real-life experience be thoughtfully and
recurrently considered over time. In those patients who have already begun the
real-life experience prior to being seen, the professional should work closely
with them and their families with the thoughtful recurrent consideration of
what is happening over time.
HBIGDA SOC, supra
note 95.
149 This is often called the “real-life test” (RLT) since
therapists require it be managed satisfactorily before they will consider
recommending surgery. The RLE requires that the individual live completely and
full-time as a member of the desired gender. There is some flexibility in the
duration required depending upon the individual and therapist.
150 HBIGDA SOC. supra note 95.
151 PETER DAY, NEW ZEALAND HEALTH TECHNOLOGY ASSESSMENT,
TECH BRIEF SERIES: TRANS-GENDER REASSIGNMENT SURGERY ii (Feb. 2002), available at http://nzhta.chmeds.ac.nz/.
It comments, “[f]inally, the study by Smith et al. (2001) showed that
adolescent transsexuals (both M to F and F to M) post-operatively resolved
their gender dysphoria, body dissatisfaction and psychological functioning
better than those (now older) who as adolescents were not approved for
treatment.” Id. at 13. See also
COHEN-KETTENIS & PFAFFLIN,
supra note 99, at 179 (characterizing age 18 as “arbitrary”
rather than as “intrinsically good for SR applicants”).
152 Cosmetic elective surgery obtained by minors is not uncommon in the
United States in instances other than transsexual considerations. According to
the American Society of Plastic Surgeons the number of cosmetic surgeries
performed on people under the age of 18 exceeded 74,000 in 2003, a fourteen
percent increase from 2000. In 2003 some 3,700 breast augmentation surgeries
were performed on teenage girls and almost as many teenage boys had their
breasts reduced. A study of patients from twelve to twenty-two years of age
from Erasmus University in Rotterdam in the Netherlands asked about their body
image and reasons for their surgeries. These respondents reported that after
the survey they were no longer concerned about their appearance and felt more
self-confident. In contrast, a control group of young people who were
dissatisfied with their appearance but who did not have surgery did not develop
a better self-image or gain self-confidence with time. Mary Duenwald, The Consumer; How Young Is Too Young to have a Nose Job
and Breast Implants, N.Y. TIMES, Sept.
28, 2004, at F5, available at http://www.nytimes.com/2004/09/28/health/28cons.html.
Males and females, thus, are denied surgery only if it is associated with a
desire to change their sex, not if it is to enhance gender stereotypes.
153 Zucker, Gender Identity, supra note 101, at 564-66.
154 HBIGDA SOC, supra note 95.
155 But
see Duenwald,
supra note 153, (quoting comments of Dr. Steven J.
Pearlman, President of the American Academy of Facial, Plastic and
Reconstructive Surgery, “[b]y the age of 6, kids can participate in the
decision to have surgery and understand why it is being done.”).
156
A good glimpse into some aspects of
the life of transgender youth was conducted in 2001. MAiNE GENDER REs. &
SUPPORT SERV., TRANSGENDER YOUTH SURVEY
(2001) (on file with the authors) (conducted to gain information for mental
health professionals, school officials and other professionals that deal with
youth).
157
Under Australian law, in order to treat
Alex, prior judicial approval was required because Alex lacked capacity to give
legal consent and the “scope of parental power to consent” to certain medical
procedures is limited. “[C]ourt authorization is required firstly because of
the significant risk of making the wrong decision and secondly because the
consequences of a wrong decision are particularly grave.” Re Alex (2004)
180 Fam. L. R.. 89, 120, available at http://www.familycourt.gov.au/
judge/2004/html/realex.html (citing In the Marriage of GWW & CMW (1997) 21
Fam. L. R. 612 (bone marrow donation)). The court concluded that Alex’s
proposed treatment fell within that limitation on consent.
There is generally no such categorical requirement in the United States.
Most medical decision cases arise where there is a conflict among parties. See, e.g., Rosebush
v. Oakland County Prosecutor, 491 N.W.2d 633, 637 (Mich. Ct. App. 1 992) (“We
hold that the decision-making process should generally occur in the clinical
setting without resort to the courts, but that courts should be available to
assist in decision making when an impasse is reached.”); In re Doe, 418
S.E.2d 3 (Ga. 1992) (holding that hospital had standing to seek guidance where
mother and father disagreed on “do not resuscitate” orders for their daughter).
Some courts and state laws have required prior judicial approval for
certain specific medical treatments of children and incompetents or where
parent and child interests may be in conflict. “[C]ategorical conflicts have
been found to exist in types of cases where the risk of conflict is so high
that court intervention is deemed necessary.” Jennifer L. Rosato, Using Bioethics Discourse to Determine When Parents
Should Make Health Care Decisions for Their Children: Is Deference Justfied?, 73 TEMPLE L. REV. 1, 43 (2000) (discussing categories
of medical decisions where courts do not accord parents deference, including
“extraordinary medical treatment” such as sterilization); see also Charles
H. Baron, Medicine and Human Rights:
Emerging Substantive Standards and Procedural Protections for Medical Decision
Making Within the American Family, 17 FAM. L.Q. 1, 7-9 (1983) (describing scenarios where parent
and child interests conflict and prior judicial approval is required). Due
process concerns also justify seeking prior judicial approval before certain
treatments. Rosato, supra. at 45. See,
e.g., In re A.M.P., 708 N.E.2d 1235
(Ill. App. Ct. 1999) (approving electroshock therapy to be administered to
psychotic teen at parent’s behest and on recommendation of the psychiatrist).
Sterilization of children and incompetents is one notable exception
where, by statute or common law, prior judicial approval is required when it is
allowed at all. See, e.g., Little, NCM v. Little, 576 S.W.2d
493, 497-98 (Tex. App. 1979). See
generally ROGER B. DWORKIN, LIMITS:
THE ROLE OF THE LAW IN BIOETHICAL DECISION MAKING 54-60 (1996) (approving the
increasingly adopted judicial case-by-case approach in involuntary
sterilization cases); Roberta Cepko, Involuntary
Sterilization of Mentally Disabled Women, 8 BERKELEY WOMEN’S L.J. 122 (1993) (describing statutory and case law
approaches to sterilization of mentally disabled); and Elizabeth
Scott, Sterilization of Mentally
Retarded Persons: Reproductive Rights and Family Privacy, 1986 DUKE L.J. 806, 818 (noting “most laws ... embody strict procedural and substantive requirements
that create a strong presumption against sterilization”). Some
jurisdictions require prior judicial approval for non-therapeutic
medical procedures. See, e.g., Grimes v. Kennedy Krieger Inst. Inc., 782
A.2d 807 (Md. App. 2001) (holding that parents may not consent to minor’s
participation in nontherapeutic research involving greater than minimal risk
without judicial approval); Hart v. Brown, 289 A.2d 386, 391 (Conn. Super. Ct.
1972) (allowing kidney donation between identical twins, and establishing
judicial role, explaining “natural parents of a minor should have the right to
give their consent to an isograft kidney transplantation procedure when their
motivation and reasoning are favorably reviewed by a community representation
which includes a court of equity”).
158
See COHEN-KETTENIS & PFAFFLIN, supra note 99, at 168 (observing that
“[t]here are very few specialized treatment centers for GID in children and
adolescents”).
159
See Doe v. Bell, 754 N.Y.S.2d 846 (N.Y. App. Div. 2003)
(holding that a foster care facility unlawfully discriminated against a
seventeen year-old biological male resident, who identifies as a female, by
keeping him from wearing skirts pursuant to the facility’s dress code); Doe v.
Yunits, No. 00-lO6OA, 2001 WL 664947 (Mass. Super. Feb. 26, 2001).
160
Unlike homosexuality, transsexualism
may be regarded as a disorder or disability under state anti-discrimination
laws. The medicalization of nonconforming gender identity is, at best,
controversial. See supra note 93 and accompanying text. See also Jennifer
L. Nye, The Gender Box, 13 BERKELEY WOMEN’S L.J. 226, 236-37 (1998)
(discussing and critiquing the medicalization of transsexuality). She notes “a
movement has arisen within the transgender community to depathologize
transsexuality and to declassify Gender Identity Disorder as a mental
disorder.” Id. at 237. Nevertheless, and at least for now, regarding it
as a disorder has provided some courts a vehicle by which to protect, support,
and advance the rights of transsexuals. For example, a number of courts have
held that health insurers and government providers must cover treatment. See,
e.g., Davidson v. Aetna Life & Cas. Ins. Co., 420 N.Y.S.2d 450, 453
(N.Y. Sup. Ct. 1979) (holding that male to female sex reassignment is not
excluded as cosmetic surgery under a health insurance policy); Pinneke v.
Preisser, 623 F.2d 546, 549 (8th Cir. 1980) (holding that the only surgery
available for transsexuals cannot be denied under Medicaid); J.D. v. Lackner,
145 Cal. Rptr. 570, 572 (Cal. Ct. App. 1978) (holding that radical sex
conversion surgery was not cosmetic and must be covered by Medi-Cal); Doe v.
State Dep’t of Pub. Welfare, 257 N.W.2d 816, 820 (Minn. 1977) (holding that
transsexual surgery cannot be totally excluded from state medical assistance
benefits); M.K. v. Div. of Med. Assistance & Health Servs., No. DMA
2345-91, 1992 WL 280789 (N.J. Adm. May 7, 1992) (holding that phalloplasty is
medically necessary because it is the only available treatment for
transsexualism and therefore, should be covered by Medicaid). See generally Jerry
Dasti, Note, Advocating a Broader Understanding of the Necessity of
SexReassignment Surgery Under Medicaid, 77 N.Y.U. L. REv. 1738, 1743 (2002)
(arguing for a broader construction of medically necessary that provides
coverage for transsexual
treatment but removing the pathology stigma); Hazel Glenn Beh, Sex, Sexual Pleasure and Reproduction: Health Insurers Don ‘t Want You to Do Those Nasty Things, 13 Wis.
WOMEN’S L.J. 119, 152-59 (1998) (describing treatment coverage in
private insurance, Medicaid and prison health care contexts).
161 No. 00-1060A, 2001 WL 664947 (Mass. Super. Feb. 26,
2001). An earlier preliminary injunction allowed Pat Doe to attend South Junior
High in female attire. The school had accommodated the student by allowing home
schooling. The court commented, “[T]his court trusts that exposing children to
diversity at an early age serves the important social goals of increasing their
ability to tolerate such differences and teaching them respect for everyone’s
unique personal experience in that “Brave New World” out there.” Doe v. Yunits,
No. 00-1060A, 2000 WL 33162199 at *8 (Mass. Super. Oct. 11, 2000). The Seventh
Circuit Court of Appeals, in Nabozny vs. Podlesny, stated in 1996 that gay,
lesbian, bisexual and transgender youth are entitled to receive equal
protection from harassment in the school, from other youth and from the faculty
and administration. The school and the principal personally, can be held liable
if they fail in this obligation. Nabozny v. Podlesny 92 F.3d 446 (7th Cir.
1996).
162 No. 00-1060A, 2001 WL 664947 at *4 (Mass. Super. Feb.
26, 2001) (citing Mass. Const. art. CXIV).
163 The court noted that prior to a 1992 amendment to the
Federal Rehabilitation Act Section 504 specifically excluding “gender identity
disorders not resulting from physical impairments,” federal courts regarded GID
as a disability. Id. at *3 (citing 29 U.S.C. § 705(20)(F)(i)).
164 Id. at * 6.
165 Id. at *6.
166 N.Y.S.2d 846 (N.Y. App. Div. 2003).
167 id. at 848-49.
168
Id at 849.
169
Id.
170
Id.
171 Id. at 850.
172 Id.
at 851 (quoting Hazeldine v. Beverage
Media, Ltd., 954 F. Supp. 697,
706 (S.D.N.Y. 1997)).
173 Id.
at 850.
174 Idat
853.
175 Id. at 854.
176 Id.
at 855.
177 Id.
178
There are other cases in which the
rights of sexual minority youth have
been vindicated and safeguarded in court under equal protection, Title IX, or
state anti-discrimination laws. See, e.g., Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) (holding
homosexual youth could maintain an equal protection claim against school
officials and denying qualified immunity); Flores v. Morgan Hill Unified Sch.
Dist., 324 F.3d 1140 (9th Cir. 2002) (protecting sexual minority youth under
the Equal Protection Clause); Montgomery v. Indep. Sch. Dist. No. 709, 109 F.
Supp. 2d 1081 (D. Minn. 2000) (denying school district’s motions for summary
judgment as to state, federal statutory, and constitutional claims of
discrimination based on student on student taunting and abusive conduct over
the course often years).
Courts have also protected sexual minority youth from misguided, abusive
or cruel parents. In re Shane T, 453 N.Y.S.2d 590 (N.Y. Fam. Ct. 1982),
is also worth noting. There, the court agreed with the Commissioner of Social
Services that a fourteen year-old boy whose father referred to him as “fag,”
“faggot,” and “queer” and whose mother who was ineffective in preventing the
verbal taunts had suffered “substantial pain” and was abused. Id. at 591-92.
The court there also showed sympathy and tenderness to the child, calling
him a “sensitive, handsome little boy.” Id. at 593. The father argued
that this was “a form of legitimate parental discipline designed to cure the
child of certain unspecified ‘girlie’ behavior. He stated that it would be
embarrassing to him if Shane were ‘queer.” Id.
The court responded,
It is very sad and even shocking that, at this late date in our constitutional development,
many parents continue to view their home as a kingdom where they reign as king
and queen and their children are relegated to the role of indentured servants . . ..
The behavior of this respondent father is
as serious a form of abuse as if he had plunged a knife into the stomach of
this child. In fact, it’s probably worse since the agony and heartache suffered
by Shane has already assailed him for several years and constitutes a grave and
imminent threat to his future psychological development.
Id. at 594. See also In re Lori M., 496 N.Y.S.2d 940 (N.Y. Fam.
Ct. 1985).
179 For example, one commentator wrote, “[w]hile countries
all over the world are moving towards full recognition of the post-operative
status of transsexuals, the United States remains in a stalemate, with some
states granting full recognition and others adhering to the strict rigidity of
biological and chromosomal sex.” Leslie
I. Lax, Is the United States Falling Behind? The Legal Recognition of Post-
Transsexuals ‘
Acquired Sex in the United States and
Abroad, 7 QUINNIPIAC HEALTH L.J. 123,
150 (2003) (reviewing legal recognition ofpost-operative transsexuals in the
United States and elsewhere).
180
Kantaras v. Kantaras, 884 So. 2d 155,
161 (Fla. Dist. Ct.. App. 2004) (holding marriage void ab initio. In countering
a lower court decision, “[w]e agree with the Kansas, Ohio, and Texas courts in
their understanding of the common meaning of male and female, as those terms
are used statutorily, to refer to immutable traits determined at birth.”).
181
In Littleton v. Prange, the issue was
whether a postoperative male to female transsexual could pursue a wrongful
death claim on behalf of her deceased husband. The court held she could not,
finding the marriage invalid as a same-sex marriage:
Her female anatomy, however, is all
man-made. The body that Christie inhabits is a male body in all aspects other
than what the physicians have supplied.
We recognize that there are many fine metaphysical arguments lurking about here
involving desire and being, the essence of life and the power of mind over
physics. But courts are wise not to wander too far into the misty fields of
sociological philosophy. Matters of the heart do not always fit neatly within
the narrowly defined perimeters of statutes, or even existing social mores.
Such matters though are beyond this courts consideration. Our mandate is, as
the court recognized in Ladrach, to interpret the statutes of the state
and prior judicial decisions. This mandate is deceptively simplistic in this
case: Texas statutes do not allow same-sex marriages, and prior judicial
decisions are few.
9 S.W.3d 223, 231
(Tex. App. 1999) (citing In re Ladrach, 513 N.E.2d 828 (Ohio Prob. Ct.
1987)).
182
513 N.E.2d 828, 831-32 (Ohio Prob. Ct.
1987) (court held that a post- surgical male to female transsexual could not be
married to a male, based on her sex as determined at birth).
183 42 P.3d
120 (Kan. 2002). The Kansas Supreme Court denied J’Noel Gardiner, a
post-operative male to female transsexual the intestate spousal share of her
husband’s estate even though her Wisconsin birth certificate had been lawfully
amended to recognize her new status. Id. at 137. Remarkably, it relied
on Black’s Law Dictionary and the Webster’s Dictionary for a definition of male
and female, disregarding the complexity of sex differentiation in the
intersexed or transsexual individual in regard to, sexual orientation and
gender identity:
The words “sex,” “male,” and “female” are
words in common usage and understood by the general population. Black’s Law
Dictionary, 1375 (6th ed. 1999) defines “sex” as “[t]he sum of the
peculiarities of structure and function that distinguish a male from a female
organism; the character of being male or female.” Webster’s New Twentieth
Century Dictionary (2nd ed. 1 970) states the initial definition of sex as
“either of the two divisions of organisms distinguished as male or female;
males or females (especially men or women) collectively.” “Male” is defined as
“designating or of the sex that fertilizes the ovum and begets offspring:
opposed tofemale.” “Fe- male” is defined as “designating or of the sex
that produces ova and bears offspring: opposed to male.” [Emphasis
added.] According to Black’s Law Dictionary, 972 (6th ed. I 999) a marriage “is
the legal status, condition, or relation of one man and one woman united in law
for life, or until divorced, for the discharge to each other and the community
of the duties legally in- cumbent on those whose association is founded on the
distinction of sex.”
Id. at 135. Judge Robert Gernon, writing for the
Court ofAppeals of Kansas, on the other hand, adopted a multi-factor test to
determine sex that included “factors in addition to chromosome makeup,
including: gonadal sex, internal morphologic sex, external morphologic sex,
hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual
identity.” In re Estate of Gardiner, 22 P.3d 1086, 1110 (Kan. App.
2001). Moreover, Judge Gemon suggested that our definition of sex should
continue to be informed by science, commenting, “[t]he listed criteria we adopt
as significant in resolving the case before us should not preclude the
consideration of other criteria as science advances.” ld.
184
See, e.g., Arriola, supra note 128; Miye A. Goishi, Unlocking
the Closet Door: Protecting Children From Involuntary Civil Commitment Because
of Their Sexual Orientation, 48 HAsTINGS L.J. 1137 (1997); Ruth Robson, Our
Children: Kids of Queer Parents & Kids Who Are Queer: Looking at Sexual
Minority Rights From a Dfferent Perspective, 64 ALB. L. Rev. 915 (2001)
(describing specific incidences of hostility from parents, the courts, social
services, and schools toward sexual minority youth).
185
Such a case recently came before a
court in the United States. See Boy
Torn Over His Gender, STEUBENVILLE HERALD-STAR, Sept. 13, 2004, available
at
http://hsconnect.com/news/story/0911202004_new03news091104.asp (last
visited Feb. 25, 2005)
(describing the custody battle over a nine year old boy whose mother believed
he had GID and whose father did not want him to attend transgender support
group meetings or go to school dressed as a girl); Shelby Zarotney, Custody Battle Involves Gender of Child, HEALTHYPLACE.COM, Sept. 19, 2004, at
http://www.healthyplace.com/Communities/gender/Site/story_gender_identity_disorder.htm
(last visited Feb. 24, 2005) (reporting a dispute
filed in Jefferson County Court of Common Pleas, between parents over
how to
treat nine year old with GID). The court ruled that the boy could not
attend
transgender support groups or enroll in school as a female as the
mother
desired. See Ruling Made in Case of
Gender Identity, STEUBENVILLE HERALD-STAR, Sept. 26, 2004, available at http://hsconnect.com/
news/story/0926202004new04news092504.asp (last visited Feb. 24, 2005).
186 Re
Kevin: Validity of Marriage of Transsexual (2001) 28 Fam. L. R. 158.
187 Rachael
Wallbank, Re Alex “Through a Looking
Glass “,
AUSTL. CHILD. RT5. NEWS, May 2004, at 28.
188 Id.
at 35.
189 One
individual diagnosed with GID lamented “I’ve been diagnosed [with GID because]
I requested this particular surgery. But it’s no longer possible for me to get
private heath insurance. I cannot get life insurance. Nor can I get disability
insurance. Because every insurance application asks, “Have you ever been
diagnosed with a mental illness?” I have to answer, “Yes.” And as soon as I do,
I render myself uninsurable.” “[W]e [the National Gay and Lesbian Task Force]
believe no one —
whether gay, lesbian, bisexual,
transgender or intersex (hermaphrodite) — should
have to accept being pathologized as mentally ill in order to attain wholeness,
complete- ness and civil equality.” Jack Drescher, An Interview with
GenderPAC’s Riki Witchins, 6 J. GAY & LESBIAN PSYCHOTHERAPY 67, 72
(2002).
190
See Jillian Todd Weiss, The Gender Caste System:
Identity, Privacy, and Heteronormativity, 10 L. & SEXUALITY 123, 133-35
(2001) (describing how public knowledge of transgender status can have long
range effects in medical care and other regards).
191
See Hazel Glenn Beh & Milton Diamond, An Emerging
Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment Surgery
on Infants with Ambiguous Genitalia?, MICH. J. GENDER & L. 1, 39 n.l83
(2000) (noting that “the state may intervene where parental decision making
seemingly fails to adequately protect the interests of the child.”); Patrick
Henigan, Note, Is Parental Authority Absolute? Public High Schools Which
Provide Gay and Lesbian Youth Services Do Not Violate the Constitutional
Childrearing Right of Parents, 62 BROOK. L. REV. 1261, 1270 (1996) (noting that the “state is able to interfere with
parental control whenever there is a compelling reason to protect children, and
parental authority is diminished in an effort to recognize the constitutional
rights of children.”).
192
Wallbank, supra note 188, at 35-36.
193
Re Alex (2004) 180 Fam. L. R.. 89, 131,available
at http://www.familycourt.gov.au/judge/2004/html/realex.html. The
reliance on surgery, and via its use to remove a penis and consider that a sign
of maleness, disregards conditions such as the complete androgen insensitivity
syndrome (CAIS), 5- alpha-reductase deficiency, and 17beta-hydroxysteroid
dehydrogenase deficiency where males are born without a penis. It similarly can
wrongly categorize conditions like congenital adrenal hyperplasia (CAR) where
females are born with phalluses. It denies the reality that one’s brain sex is
more crucial in determining sexual and gender identity than are genitals. See
Milton Diamond & Linda Watson, Androgen Insensitivity Syndrome and
Klinefelter ‘s Syndrome Sex and Gender Considerations, 13 CHILD &
ADOLESCENT PSYCHIATRIC CLINICS N. AM. 623 (2004) (discussing the psychological
and social features of AIS); Vivian Sobel & Julianne Imperato-McGinely, Gender
Identity in XY Intersexuality, 13 CHILD & ADOLESCENT PSYCHIATRIC
CLINICs N. AM. 609 (2004) (exploring the issues of gender identity associated
in types of XY intersexuality); Melissa Hines, Psychosexual Development in
Individuals Who Have Female Pseudohermaphroditism, 13 CHILD & ADOLESCENT
PSYCHIATRIC CLINICS N.
AM. 641(2004) (discussing psychological alterations in cases of female
pseudohermaphrodism); William G. Reiner, Psychosexual Development in Genetic
Males Assigned Female. The Cloacal Exstrophy Experience, 13 CHILD &
ADOLESCENT PSYCHIATRIC CLINICS N. AM. 657 (2004) (discussing the impact of interventions on children
with anomalous genitalia).
194
Leslie I. Lax, Is the United States
Falling Behind? Recognition of PostOperative Transsexuals ‘Acquired Sex in the
United States and Abroad, 7 QUINNIPIAC HEALTH L.J. 123 (2003) (discussing
Goodwin v. United Kingdom, 35 Eur. Ct. H.R. at 18 (2002-VT) (recognizing
legal rights of male to female transsexual)). On 1 July 2004 Britain enacted the Gender Recognition Act. The law essentially accords
individuals diagnosed with GID the right to a new birth certificate and all
rights of their desired gender. Significantly the law does not stipulate that a
transsexual must have undergone a sex-change operation; they must only provide
evidence that they plan to live permanently in their new gender. Gender
Recognition Act, 2004, c. 7 (Eng.), available at
http://www.legislation.hmso.gov.uk/acts/acts2004/40007--a.htm#l (last visited
Feb. 24, 2005).
195
See Lax, supra note 195, at 130-50 (examining cases outside
the United States).
196 See Weiss, supra
note 191 at 177-80 (arguing that post-surgery status should be irrelevant).