In a landmark judgment, the Chief Justice of the Family Court of Australia has given permission for a 13-year-old girl to begin a sex-change process. The biologically normal girl, referred to in the judgment as “Alex” or “he”, has been diagnosed with a gender-identity disorder and has experienced major depression, self-harming behaviour and suicidal thoughts.1*

Gender-identity disorders, sometimes referred to as “gender dysphoria” (“dysphoria” indicating distress)5 or “transsexualism”, are rare and complex conditions in children and adolescents. According to a Royal College of Psychiatrists report,6 they are often associated with emotional and behavioural difficulties and involve psychological, biological, family and social issues. In the course of psychosexual development, the young person “experiences their phenotypic sex as incongruous with his or her own sense of gender identity”, and adolescents with this condition often experience intense distress. The majority of affected children eventually develop a homosexual orientation, but the outcome is not easily predicted. Only a small proportion become transsexuals or transvestites.6

In the present case, Alex has had a strong, longstanding desire to live as a male and become male in appearance and has gone to distressing lengths to conceal his female body. For example, to avoid having to use the female toilets, he started wearing nappies to school and would not drink liquids.1 Alex’s past life has been troubled. His father, with whom he was very close, died suddenly when Alex was young, and his mother rejected him. He now lives with an aunt.

Gender reassignment is a staged process. The proposed treatment for Alex involves, firstly, the continuous administration of a combination of oestrogen and progestogen that is a form of the contraceptive pill. The goal of this stage is solely to suppress menstruation, and the effects are “completely reversible”.1 The second stage of treatment for Alex involves hormone therapy with a luteinising-hormone-releasing-hormone analogue (to suppress the pituitary–ovarian axis) and testosterone; this can begin in 3 years’ time, at age 16, if Alex still wants to be a boy. Some changes with this stage of the treatment are irreversible. Changes include masculinisation of the voice, muscle growth, increase in facial and body hair, growth of the clitoris and behavioural effects.1 Surgery would complete the sex-change process; however, surgical intervention was not sought or contemplated in the court application.

The Chief Justice authorised the stages of the proposed treatment as a “single package of reversible and irreversible treatment”, but the only aspect that will take immediate effect is administration of the contraceptive pill.1 Although Alex and his doctors have authorisation to commence the irreversible hormone therapy, surgical intervention is not part of that “package”. Alex would not be eligible for surgical intervention until he is at least 18 years old.1 From the age of 18, however, he will be legally entitled to make his own decisions.

Under the Family Law Act 1975 (Cwlth), the Family Court is required to “regard the best interests of the child as paramount”.1 The Chief Justice in this case based his decision on the High Court’s decision in Marion’s case.7 Matters to be considered include the particular condition of the child; the nature of the proposed treatment; reasons for the proposed treatment; alternative courses of treatment; desirability and effect of the proposed treatment compared with alternatives; physical, psychological and social implications of authorising or not authorising the proposed treatment; the nature and degree of any risk associated with authorising or not authorising the proposed treatment; and the views of the child’s guardian(s) and of the child.1

The Court was making the decision not because Alex lacked sufficient maturity and understanding or because he was a ward of the state. The permission of the Family Court was required because the proposed treatment was not considered a treatment for a “malfunction” or a “disease”.1 The “irreversible” element of the intervention, with accompanying “significant risk”, means that it falls into the legal category of “special medical procedures” — cases requiring court authorisation.1,8

The Court’s decision to allow the sex-change process has sparked public debate and provoked strong reactions in the media.

Bioethicist Nicholas Tonti-Filippini has condemned the decision as “unbelievable” and called on the government to intervene. He argues that “all the evidence suggests that gender dysphoria is a form of mental illness and should be treated as a mental illness, not by trying to adjust her biologically to match the delusion”.9,10 Another critic claims that allowing the 13-year-old to begin the sex-change process is colluding with the fantasy rather than treating the condition — “like allowing a child who imagines he is a horse to undergo transformative surgery”.11 Some challenge the diagnosis and the proposed treatment by arguing that we should view Alex as a victim of emotional and psychological abuse: “We have a terrible feeling that Alex may have received too much intervention of the wrong kind, too soon.”12 Others have stated, “It’s her troubled mind we must work on, not her healthy body”,13 and “She is much, much too young to make this decision”.10 Some also worry that Alex will come to regret his decision.14,15

The competence of a 13-year-old to make this kind of decision and the implications of making competence determinations have also been debated. One newspaper editorial has called the Court’s decision “troubling”, because “it is a fair bet that what Alex wants now above all else may not be her heart’s desire in five, let alone 10 years’ time”.16 Another editorial claims that adolescent unhappiness cannot be measured from an adult’s perspective, and warns that “anyone who must deal with an adolescent’s misery needs to consider very carefully what the consequences of disregarding it may be”.17

Few commentators have come out in defence of the Court’s decision, but a spokesperson for the Australian and New Zealand College of Psychiatrists has said that the judgment was important “because it acknowledged the severity of Alex’s condition and allowed the appropriate treatment”.18 A representative of TransGender Victoria commended the decision, because adolescence is “the worst time” for people with gender-identity problems committing suicide.10

The overriding concern in this debate seems to be the possibility of harm. Some view the proposed medical treatment as inappropriate or premature and fear that Alex may later regret undergoing the treatment. Others think that the treatment offers relief and that withholding it would cause great harm. The competence of a young person to make this kind of decision, the goals of the intervention, and whether the end justifies the means also figure in the debate.

This case demonstrates the importance of weighing the benefits and harms involved in authorising or not authorising treatment. It highlights the value in respecting the developing autonomy of a young person, even though considerations about self-determination may not be the ultimate determinant of what should be done. In relation to the public debate, I believe that critics need better arguments to denounce the appropriateness of the proposed treatment. Critics have failed to recognise the benefit to Alex of having his wish to live as a boy taken seriously. Finally, the benefit that comes from the relief of distress may make us wonder whether the goals of the intervention really matter.