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IN THE FAMILY COURT OF AUSTRALIA

(By Court Order the File Number is suppressed)

RE ALEX: HORMONAL TREATMENT FOR GENDER IDENTITY DYSPHORIA

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(INTERVENING)

1. ISSUES

1.1 On 15 January 2004, the Family Court granted leave to the Human Rights and Equal Opportunity Commission ("the Commission") to intervene in these proceedings, pursuant to s 92 of the Family Law Act 1975 (Cth) ("Family Law Act").

1.2 These proceedings commenced as an application by the Applicant (a Government Department) seeking a declaration under ss 67ZC(1) and (2) of the Family Law Act that the Secretary of the Applicant, as legal guardian of the child Alex, is authorised to consent to certain medical procedures on behalf of the child. These medical procedures include the administration of oestrogen and progestogen to the child on a continuous basis until the child turns 16; ongoing psychiatric assessment; and the further hearing of this matter 6 months before the child's 16th birthday to consider authorisation to the child being treated with an LHRH analogue and testosterone. The treatment is sought on the basis that two psychiatrists have diagnosed the child with 'gender dysphoria' or 'gender identity disorder'.

1.3 The following issues are addressed in these submissions:

(a) Can the child give informed consent to the medical procedures? It is submitted that if this question is answered affirmatively then this Court has no further role in this matter.

(b) If the Court's authorisation is required or sought for medical treatment, what considerations should the Court take into account in determining what is in the 'best interests of the child' for the purposes of s 67ZC(2) and in applying the criteria set out in s 68F of the Family Law Act?

1.4 The human rights of the child are relevant in determining both the question of competency to consent as well as the question of what is in the 'best interests of the child' for the purposes of s 67ZC(2) and in applying the criteria set out in s 68F of the Family Law Act. It is therefore appropriate to consider these issues having regard to the principles of international human rights law, as well as domestic law. The focus of the Commission's submissions is on the rights of children to express their wishes and make decisions within their competency, in the context of their right to live with a transgender identity.

2. COMPETENCY OF THE CHILD TO CONSENT TO MEDICAL TREATMENT

2.1 The law is clear that a child can give legally informed and effective consent to medical treatment in certain circumstances where they have a full understanding of the proposed procedure.1 This is subject to specific legislation in some jurisdictions which presumes that minors over a particular age are able to make medical decisions for themselves.2

2.2 The law as stated in Secretary, Department of Health and Community Services v J.W.B. and S.M.B. ("Re Marion") (1992) 175 CLR 218 and Gillick v. West Norfolk Area Health Authority and Department of Health and Social Security [1986] A.C 112 ("Gillick's Case") is consistent with international law on the rights of the child.3 The Convention on the Rights of the Child ("CRC") provides that a child shall be provided the opportunity to be heard in any legal proceedings affecting the child, and their views given due weight in accordance with their age and maturity (Article 12).4 The CRC therefore promotes the right of children to make an informed decision; attempts to ensure that appropriate information is provided to enable this decision to be made; and requires that state parties respect these views and the reasons for their formation.

2.3 Accordingly, the first decision that must be made by the Court in this matter is whether the child has achieved "a sufficient understanding and intelligence to enable him or her to understand fully what is proposed."5

2.4 As a matter of law (as well as a matter of fact) there is no fixed age at which a child can be said to be able to give legally effective consent to medical treatment and it will need to be determined on the facts of each case.6 The age at which a child will be able to give effective consent will be influenced, inter alia, by the individual attributes of the child as well as the complexity of the treatment issues involved.7 A child may be competent to make some of their own medical decisions, but not competent to make decisions about more complex procedures. For a child to be deemed competent, it is submitted that they must have the ability to understand the nature of the treatment, the risks and benefits, if any, and any alternatives to that treatment.8 In Re A,9 Mushin J was satisfied on the evidence in relation to the 14 year old for whom irreversible sex reassignment surgery was sought that:

"A understands the problem and, in general terms, the way in which it is proposed that such problem be resolved and further, the child has expressed a desire that such resolution take place. However, I am not satisfied that A has sufficient capacity and maturity to fully appreciate all aspects of the matter and to assess objectively the various options available to him."

2.5 The general position in Australia in relation to competent minors refusing medical treatment is unclear. While the right of minors to consent to medical treatment has been judicially recognised, their right to refuse treatment has not been the subject of similar discussion. The position in England following the cases of Re R10 and Re W11 is that a "Gillick competent" child is unable to refuse treatment, if such refusal has the effect of overriding consent given by the guardian or the court. It is submitted that this view should not be adopted in Australia. It is submitted that the better view - and the view that is most consistent with Re Marion and the principles of international law outlined above - is that a court has no power to override either the informed consent or informed refusal of a competent child to medical treatment, or, if it does have such a power, it should not as a matter of discretion exercise that power except, perhaps, in extreme circumstances12

2.6 Accordingly, it is possible that, on the facts of a particular case, a Court may find that a child is competent to refuse treatment but lacks competency to consent to treatment (or vice versa). This may occur where the treatment issues involved in having the treatment are more complex than the treatment issues involved in refusing it (or vice versa). It is submitted that, on principle, there is no reason why a distinction of this sort cannot be drawn on the facts of a particular case.

2.7 In short, no presumptions should be drawn as to the issue of whether any individual child of any particular age can give informed consent to receive or refuse medical treatment and in each case the issue will depend on the complexity of the treatment issues involved13 and "on the rate of development of each individual."14

2.8 It is submitted that if this Court finds that the child has achieved "a sufficient understanding and intelligence" to enable the child "to understand fully what is proposed".15 then this Court has no further role in this matter.

3. THE BEST INTERESTS OF THE CHILD

3.1 The international human rights principles which bear upon the issues before the Court and to which the Court ought have regard in determining the 'best interests of the child' are set out in the CRC and the International Covenant on Civil and Political Rights ("ICCPR"):16

(a) best interests of the child principle - article 3(1) of the CRC;17

(b) responsibilities, rights and duties of legal guardians to provide appropriate guidance for the child in the exercise by the child of their rights - article 5 of the CRC;18

(c) right of the child to maximum development - article 6(2) of the CRC;19

(d) right of the child to preserve their identity - article 8(1) of the CRC;20

(e) right of the child to be heard - article 12 of the CRC;21

(f) guarantees of equality before the law and non-discrimination in Articles 2(1) and 26 of the ICCPR;22 and

(g) the recognition of the inherent dignity and worth of the human person which underpins each of the above rights.23

3.2 It is a long-established principle that a statute is to be interpreted and applied, so far as its language admits, in a manner which is consistent with established rules of international law and which accords with Australia's treaty obligations.24 That approach is not limited in its application to ambiguous statutory provisions25 Rather, wherever the language of a statute is susceptible of a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail.26

3.3 Conversely, if the Parliament intends to legislate inconsistently with Australia's international obligations, it should express that intention clearly. Such a requirement does not infringe upon the principle of Parliamentary supremacy. Rather, it contributes to greater integrity in the legislative process by ensuring that Parliament squarely confronts situations where proposed legislation breaches binding international obligations, being obligations which the Executive has solemnly entered into on behalf of Australia.

3.4 Section 67ZC of the Family Law Act implements, in part, Australia's obligations under the CRC,27 which has as an underlying consideration 'the best interests of the child'.28 Where a provision of an international human rights instrument is transposed into a statute, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty.29 The same presumption applies where Parliament has transposed only part of an international instrument, or where the relevant domestic statute follows quite closely the language of the international treaty.30

3.5 Further, in construing the provisions of an international human rights instrument, Australian courts should and do give weight to the views of specialist international courts and bodies such as the International Court of Justice, the European Court of Human Rights31 and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties.32

3.6 It is to be noted that there is a similarity in the wording of Articles 2.1 and/or 26 of the ICCPR (on which some reliance is placed in these submissions) and Article 14 of the European Convention on Human Rights.33

Right of a child to live with a transgender identity

3.7 Lesbians, gay men and transgender people34 have fundamental human rights, including freedom of expression,35 freedom of association,36 freedom from arbitrary interference in privacy and family life,37 guarantees of equality before the law and the entitlement to the equal protection of the law without any discrimination.38 These rights are increasingly recognised and protected in treaties and constitutional guarantees,39 in the jurisprudence of the European Court of Human Rights,40 and in communications of the United Nations Human Rights Committee.41

3.8 Such fundamental human rights are denied when lesbians, gay men and transgender people are not given equal protection without discrimination by the law, or are unable to express their identity through means such as identifying themselves to friends or neighbours, socialising together in public social venues, or openly cohabiting with a partner.42

3.9 Article 8(1) of the CRC also provides children with the right to preserve their "identity". The concept of "identity" is not defined in the CRC, although three elements of identity are listed by way of example - nationality, name and family relations. Sexual identity and gender identity are arguably within the scope of Article 8(1).43

The Meaning of 'Transgender Identity'

3.10 There appears to be no single authoritative definition of 'transgender identity'. In the Anti-Discrimination Act 1977 (NSW), s 38A, 'transgender person' is relevantly defined as a person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex.

3.11 This definition is broadly consistent with the definitions in the anti-discrimination legislation of most of the other states and territories.44 It is to be noted that this definition is 'inclusive' in the sense that it is not restricted to persons who have undergone or wish to undergo medical or surgical treatment to reassign their gender. It is submitted that an 'inclusive' definition of this kind is to be preferred to a definition that draws a distinction between transgender persons who have undergone medical or surgical treatment and those who have not.45

3.12 On the basis of the above, it is submitted that:

(a) A child has a right to live with a transgender identity, free from discrimination, under international human rights law;

(b) It is in the child's 'best interests' to have that right respected;

(c) A child's right to live with a transgender identity should not be limited by a narrow definition of 'transgender identity' that relies on medical or surgical intervention. There is a right to choose how that identity is expressed;

(d) It follows that respecting a child's right to live with a transgender identity does not, of itself, decide the issue, one way or the other, of whether the authorisation of a medical procedure is in the child's best interests. The latter is a separate yet contextually related question to be decided by the Court, based on its assessment of the child's best interests, and taking into account the right of a child to express their wishes and to be heard (see paragraphs 3.13 to 3.23, below).

Right of a child to express their wishes and right to be heard

3.13 A child has the right to express their views freely and to have their views given due weight in accordance with their age and maturity, and to be provided the opportunity to be heard in any judicial proceedings affecting them, in accordance with the law.46

3.14 The CRC acknowledges the obligation of parents or other persons legally responsible for a child to take into account the adolescent's views, in accordance with their age and maturity (Article 5), as they develop towards independent adulthood and self-determination. The Committee on the Rights of the Child has stated that:

"The right to express views freely and have them duly taken into account is also fundamental in realising adolescents' right to health and development. In order for adolescents to be able to safely and properly exercise this right, public authorities, parents and other adults working with or for children need to create an environment based on trust, information sharing, the capacity to listen and sound guidance that is conducive for adolescents' participating equally in the decision making processes."47

3.15 It is submitted that a child's views as to whether they should have any medical treatment are essential, useful and important.48 Overriding a child's autonomy in respect of a medical procedure may be detrimental to the child, for the consent, cooperation and participation of the patient/client are critical to the effectiveness of any medical treatment.49

3.16 Section 68F(2)(a) of the Family Law Act requires the court to take into account any wishes of a child in respect of procedures in relation to the child's welfare, however the child's wishes are to be given only such weight as the court considers appropriate, and there is no obligation on the court to seek the child's views.50

3.17 A child's views have a twofold relevance:

(a) they can assist the court in deciding the issue of the child's capacity to give informed consent itself (see paragraphs 2.1 to 2.8 above); and

(b) they convey to the court the wishes of the child in respect of their own life. The views of a child who is not "Gillick competent" may be of considerable assistance in difficult cases to both family and decision-makers; the fact that the child's views are respected and taken into account may be of great benefit to the child in its relationship with family and decision-makers.51

What are the child's wishes?

3.18 The common theme that emerges from the medical evidence is that the child wishes to live as a boy:

3.19 The medical evidence also suggests that the child wants to stop menstruating and to "maintain a masculine appearance":

3.20 This has led the relevant medical witnesses to broadly agree with the conclusion of Dr W that the child "wishes to make a physical transition with medical help to become a male" - affidavit of Dr W.

3.21 Ultimately, the determination of the precise content of the child's wishes is one for the Court itself, on its assessment of the facts.52

3.22 It is submitted that the Court should give due weight to the child's wishes (as it construes them) in its assessment of the child's 'best interests'.

Best Interests Generally

3.23 In determining this matter, the Court should also have regard to the psychological and social implications for the child of authorising or not authorising the proposed procedure, as well as the nature and degree of any risk, psychologically or physically, to the child of authorising or not authorising the proposed procedure.53

Dated: 4 March 2004

1. Secretary, Department of Health and Community Services v J.W.B. and S.M.B. ("Re Marion") (1992) 175 CLR 218, especially at pp. 237-238, 315-317; Gillick v. West Norfolk Area Health Authority and Department of Health and Social Security [1986] A.C 112 especially at pp.169, 186.
2. Minors Property and Contracts Act 1970 (NSW); Consent to Medical Treatment and Palliative Care Act 1995 (SA).
3. See Article 12 of the Convention on the Rights of the Child ("CRC"). The CRC was adopted by the United Nations General Assembly on 20 November 1989. Australia ratified the CRC on 17 December 1990 and it came into effect for Australia on 16 January 1991. The CRC applies to all people below the age of eighteen years within the Australian jurisdiction.
4. Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Article 12(2): For this purpose, the child shall in particular be provided the opportunity to he heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
5. Gillick's case, at pp.183-184, as followed in Re Marion at p. 237.
6. Re Marion, at pp. 237-238.
7. See Re Marion, at pp.237-238 (see especially footnote 74) and at pp. 295-296; Graeme Austin, "Righting a child's right to refuse medical treatment: Section 11 of the New Zealand Bill of Rights Act and the Gillick competent child", Otago Law Review (1992) Vol 7 No 4 at pp. 592-593 and the authorities and references cited.
8. See Leanne Bunney, "The Capacity of Competent Minors to Consent to and Refuse Medical Treatment", (1997) 5 JLM 81 at pp. 59-60.
9. [1993] FLC 92-402 at 80,115.
10. [1991] 3 WLR 592.
11. [1992] 3 WLR 758.
12. See Austin, op.cit, pp. 586, 589-591, Re R [1991] 3 WLR 592, at p. 28, Re Marion, at pp. 237-238.
13. See Re Marion, at pp. 237-238 (see especially footnote 74 therein) and at pp. 295-296; Austin, op.cit, at pp. 592-593 and the authorities and references cited.
14. Re Marion, at p. 239.
15. Gillicks Case, at pp.183-184, as followed in Re Marion at p.237.
16. ICCPR (opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993), and CRC (opened for signature 20 November 1989, 1577 United Nations Treaty Series 3; entered into force 2 September 1990; ratified by Australia 17 December 1990; declared an international instrument for the purposes of s 47(1) of the Human Rights and Equal Opportunity Act 1986 (Cth) on 22 December 1992; gazetted 3 January 1993) (see s 3 HREOC Act). Australia is a party to the First Optional Protocol to the ICCPR (opened for signature 16 December 1966, 999 United Nations Treaty Series 302 (entered into force 23 March 1976, acceded to by Australia 25 December 1991)), which provides for complaints of violations of the ICCPR to be made to the United Nations Human Rights Committee (see articles 2 and 5 of the First Optional Protocol to the ICCPR).
17. Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
18. Article 5: States parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
19. Article 6(2): States parties shall ensure to the maximum extent possible the survival and development of the child.
20. Article 8(1): States parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
21. Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. Article 12(2): For this purpose, the child shall in particular be provided the opportunity to he heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
22. Article 2(1): Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
23. See the Preamble to the Charter of the United Nations which states that the peoples of the United Nations have determined: ".to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"; the Preamble to the Universal Declaration of Human Rights ("UDHR") which provides that: "[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" and Article 1 of the UDHR which states that: "[a]ll human beings are born free and equal in dignity and rights."; and the Preambles to both the ICCPR and the International Covenant on Economic, Social and Cultural Rights ("ICESCR") which state that: ".in accordance with the principles proclaimed in the Charter of the United Nations , recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".
24. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation In Australia (5th ed. 2001) at [5.14].
25. See eg Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms [2000] 2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions, the concept of 'ambiguity' in this context is construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
26. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ; Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.
27. B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360.
28. Article 3(1) of the CRC provides that 'the best interests of the child shall be a primary consideration'.
29. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-31 per Brennan CJ.
30. De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 675 per Kirby J.
31. For example Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; John Fairfax Publications v Doe (1995) 37 NSWLR 81 at 90 per Gleeson CJ; Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 253-255 per HcHugh J; R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 at 213-214 per Kirby J.
32. See as examples of references to the jurisprudence of human rights treaty bodies Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J.
33. Article 14 of the ECHR provides that: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
34. While issues of sexuality and gender identity are not identical, the jurisprudence in the area has often used the terminology interchangeably. The jurisprudence on sexuality is of some guidance in the consideration of transgender issues.
35. Article 19 Universal Declaration of Human Rights ("UDHR"); article 19 ICCPR.
36. Article 20(1) UDHR; article 22 ICCPR.
37. Article 12 UDHR; article 17 ICCPR.
38. Article 26 ICCPR.
39. Sexual orientation is an enumerated ground in the anti-discrimination provisions of the 1997 Treaty of Amsterdam and in the Charter of Fundamental Rights of the European Union, 2000 O.J (C364) 1, Article 21(1). The Constitution of South Africa 1996 expressly includes sexual orientation under its equality guarantee in article 9(3). In Egan v Canada [1995] 2 SCR 513, the Supreme Court of Canada held sexual orientation to be an analogous ground under the equality provision, sec 15(1), of the Canadian Charter of Rights and Freedoms.
40. Mouta v Portugal (2001) 31 EHRR 47; [2001] 1 FCR 653 (finding a breach of articles 8 and 14 of the European Convention on the Protection of Human Rights and Fundamental Freedoms ("European Convention") in combination, where a gay man, by virtue of his sexual orientation was denied custody of his child); Goodwin v United Kingdom (2002) 35 EHRR 18; [2002] 2 FCR 577 (finding a breach of articles 8 and 14, in combination, and of article 12, where a male to female transsexual was unable to change her legal status, including her birth certificate, or to marry a partner of the same sex as her birth sex); I v United Kingdom [2002] 2 FLR 518 (finding a breach of articles 8 and 14, in combination, and of article 12, where a male to female transsexual was unable to change her legal status or marry).
41. See Young v Australia, Communication No 941/2000 (18 September 2003) (finding a violation of article 26 of the ICCPR by Australia in denying a pension on the basis of sex or sexual orientation); Toonen v Australia, Communication No 488/1992 (31 March 1992).
42. See Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister of Immigration and Multicultural Affairs (2003) 203 ALR 112 at para 44 per McHugh and Kirby JJ and para 81 per Gummow and Hayne JJ. See also, In Attorney-General (Cth) v "Kevin and Jennifer" [2003] Fam CA 94, where the Full Court of the Family Court held that it was open to the trial judge to find that "Kevin" (a female to male transgender person), was a man at the time of the marriage for the purposes of the Marriage Act 1961 (Cth). At [379] the Court said: "The weight of international legal developments points strongly in a similar direction. There is widespread statutory recognition of transsexual persons as "man" or "woman" (as the case may be) for the purposes of criminal and social service law. The laws of a number of Australian states permit the alteration of birth certificates to recognise the position of transsexual persons. The acceptance of such a position provides consistency, in Australia at least, with case law outside the area of marriage."
43. See Douglas Hodgson, "The International Protection of the Child's Right to a Legal Identity and the Problem of Statelessness", International Journal of Law and the Family 7 (1993) 255-270 at p. 265.
44. See Equal Opportunity Act 1995 (Vic), s 6 ('gender identity', defined in s 4 as: "(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such) - (i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or (ii) by living, or seeking to live, as a member of the other sex; or (b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)-(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or (ii) by living, or seeking to live, as a member of that sex"); Anti-Discrimination Act 1991 (Qld), s 7(m) ('gender identity', defined in the Schedule - Dictionary as: "Identifies or has identified as a member of opposite sex by living or seeking to live as a member of that sex"); Discrimination Act 1991 (ACT) s 7(c) ('transsexuality', defined in Dictionary as "a person of one sex who (a) assumes the bodily characteristics of the other sex, whether by means of medical intervention or otherwise; or (b) identifies himself or herself as a member of the other sex or lives, or seeks to live, as a member of that other sex"); Equal Opportunity Act 1984 (SA), s 29 ("sexuality" which includes 'transsexuality', defined in section 7 as: "'transexual' means a person of the one sex who assumes characteristics of the other sex"); Anti-Discrimination Act 1998 (Tas), s 16 ("sexual orientation" which includes 'transsexuality', defined in s 3 as: "'transsexual' means a person of one sex who (a) assumes the bodily characteristics of the other sex by medical or other means; or (b) identifies himself or herself as a member of the other sex; or (c) lives or seeks to live as a member of the other sex"); Equal Opportunity Act 1984 (WA) s 35AB ("gender history" defined in s 35AA as: "a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex. "opposite sex" means a sex of which the person was not a member at birth"); Anti-Discrimination Act 1998 (NT) s 19 ("sexuality", which is defined in s 4 to include transexuality).
45. An "inclusive" definition is also in keeping with the sentiment expressed by the Full Court of the Family Court in Attorney-General (Cth) v "Kevin and Jennifer" [2003] Fam CA 94 at [382]-384]: "This leaves the more difficult question of the position of pre-operative transsexual persons. As we have said, this case does not require us to determine this question. In all of the decided cases to which we have referred their position has been distinguished from post-operative transsexual persons and comments have been made to the effect that this is a matter for parliament to determine. If one accepts the argument of Ms Wallbank and the evidence given in this case, Kevin has always perceived himself to be a man. One then asks the rhetorical question as to why he must subject himself to radical and painful surgery to establish this fact." It is of note that on the facts of Attorney-General (Cth) v "Kevin and Jennifer" itself, the right of Kevin to marry as a "man" was granted despite his not having had full reassignment surgery. See also, Andrew Sharpe, 'Thinking Critically in Moments of Transgender Law Reform: Kevin and Jennifer v A-G for the Commonwealth" (2002) 11 Griffith Law Review 309.
46. Article 12, CRC.
47. Committee on the Rights of the Child, General Comment No.4 (2003), "Adolescent health and development in the context of the Convention on the Rights of the Child", para 8; see also para 4: "The Committee understands the concepts of 'health and development' more broadly than being strictly limited to the provisions defined in articles 6 (right to life, survival and development) and 24 (right to health)."
48. See Article 12 of the CRC; In the Matter of P. Y. and J. Y. (1993) 14 Human Rights Law Journal 280, at p.282; Toohey v. Metropolitan Police Commissioner [1965] A.C. 595, at p. 607; Re Grady (1981) N.J. 426 A.2d 467, at p. 482; Matter of Terwilliger (1982) Pa.Super., 450 A. 2d 1376, at p.1383.
49. See Christine M. Hanisco, "Acknowledging the Hypocrisy: Granting Minors the Right to Choose their Medical Treatment", New York Law School Journal of Human Rights Volume 16 No. 3 Summer 2000, pp. 899-932, at p.921: "Critical to successful medical treatment is the consent, cooperation, and participation of the patient. The medical community, as well as some legal scholars, have realized that minors should be allowed to participate in determining what course their medical treatment should take and that minors are in fact capable of doing so."
50. The most relevant Australian cases on this point are the sterilization cases heard in the Family Court, although they all involved children with severe communication difficulties, for example, Re Jane (1988) 94 F.L.R. I, Re a Teenager (1988) 94 F.L.R. 181, In re Elizabeth (1989) 13 Fam. L.R. 47, Re MM Unreported, Family Court of Australia, Warnick J., 26 November 1993, Re Marion [No.2] Unreported, Family Court of Australia, Nicholson C.J., Date of Judgment 1 May 1992 - Date judgment published 21 January 1994, (1992) F.L.C. 92-318, In re S (1989) 13 Fam. L.R. 660. However, it was only in Re Marion [No.2] that the child's views were sought out and taken into account by the Court.
51. See generally: Re Grady (1981) NJ 426 A.2d 467 and Matter of Terwilliger (1982) Pa.Super., 450 A.2d 1376, at p.1383.
52. In the ordinary course the appropriate way for the child to express their views to the Court is through the child's separate representative. Those views may also need to be obtained with or through the assistance and involvement of persons other than the separate representative: see Gillick's Case, especially at pp. 174, 189; Austin, op.cit, at pp. 593-594.
53. P and P [1995] FLC 92-615 at 82,151.

Last updated 20 April 2004.