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by Rachael Wallbank - February 2010
- Introduction and a
Discussion about Language
- Numbers/Prevalence
- Adolescent Sex
Affirmation Treatment
- The Deplorable Impact
of the Family Law Act and Re: Alex On Access to
Therapeutic Medical Treatment
- The
Contemporary Australian Scene
- References
Introduction and a Discussion about
Language
When Katherine Cummings and I began discussing
an article for this issue of Polare, Kate casually used
the term "young transgenders"- which resulted in a lively
discussion about language and terminology. Craig Andrews
and I currently mentor and represent True Colours
(www.truecolours.org.au),
a group of young Australians who experience
transsexualism, their parents, loved ones and supporters.
So while Kate has her own opinions on language and
terminology, our shared interest in language and the
human rights of young people with transsexualism meant
that she was happy for me to make a contribution to this
issue which includes a critique of what I contend to be
the vague and misleading term "transgender".
Conducting and appearing in the Re: Kevin cases (circa
2000-2003)1
had a number of impacts on me. Those cases introduced me
to expert evidence concerning the sexual differentiation
of the brain and hence the innate intersexual nature of
both sexual identity and transsexualism. The explanation
for transsexualism that posits that the predicament is an
intersexual condition derived from the brain and balance
of the individual's sexually differentiated features
conflicting as to sexual identification still has no real
competition and is now being supplemented and reinforced
by genetic and other research.
The old saying "You are what you think" turns out to
be true and there are certain things we think we are that
we cannot change our minds about - including our sexual
identity. This experience also resulted in a personal
re-evaluation as I have since identified as a person who
has experienced transsexualism as an "I" for intersex
rather than "T" for Transgender.
I know that this reality upsets some people,
particularly some in the political Intersex lobby, but
the fact is that it is the only credible explanation
medical science has to offer for transsexualism. The
psychological disorder model explanation has never been
credibly evidenced notwithstanding its support in the DSM
IV.
But what does this discussion about language and
terminology have to do with young people and, in
particular, young people who experience transsexualism
and their contemporary Australian experience? Well, as I
hope to explain, just about everything - from their
ability to have their affirmation of their innate sex
recognised as legitimate to their access to timely
treatment.
Why am I so critical of the widely accepted terms
"male to female transsexual" and "female to male
transsexual"? I fundamentally object to the assertion
that when someone experiencing transsexualism affirms his
or her innate sex, they change or transition their sex or
sexual identity. On the contrary, they affirm their
innate sex or sexual identity. With the benefit of the
finer potential of "non-trans" language I can say,
however, that such people in the act of such sex
affirmation will most often change their gender
expression or cultural expression of sex to bring it into
conformity with their affirmed or innate sex. Note the
need to distinguish biological from cultural matters
here. If I conflate the different terms "sex" and
"gender" I lose the ability to express fully the
difference between innate biologically derived sex or
sexual identity and the culturally and expected
expression of that identity; gender. I deal with this
issue in just about every case concerning transsexualism
I have conducted in an effort to wrestle expert and other
evidence into an understandable and unprejudiced
terminology that will be consistent and understandable to
judges.
It seems to me that out of both linguistic habit and
as a result of a misplaced aversion to the word "sex",
many people push the word "gender" too far; confusingly
giving "gender", "gender identity". "assigned gender" and
"innate gender" fundamentally different meanings
notwithstanding the same root word.
If we go back to dictionary basics, we find that the
primary definitions of "sex" indicate the biologically
determined sexual dichotomy referred to as "male" and
"female", while "gender" means a form of culturally
interpreted classification relating to, but different
from, sex. Properly construed, the "sex terms" are
"male", "female" and "intersex", "gender terms" are
"masculine", "feminine" and "neuter".
The need "trans-language" has to replace the "gender
terms" - "masculine/feminine" with the sex terms
"male/female" shows that in trying to stretch and distort
the word "gender" to do the linguistic work of both the
words "sex" and "gender", it actually robs both "sex" and
"gender" of their full traditional meanings and
linguistic potential to describe respectively and
distinctly the phenomena biological diversity and
diversity in gender expression. "MTF/ FTM" terminology
has nothing to do with gender or gender meaning words
such as "masculine", "feminine" and "neuter". "MTF/ FTM"
terminology was established in order to refer to a
"change of a person's sex through genital reassignment
surgery". Way back when, when scientists and clinicians
first employed the terms "male to female transsexual" and
"female to male transsexual" they were making a
quasi-biological statement based upon the now
acknowledged fallacy that genital formation, and
especially external genital formation, determines an
individual's sex.
The hypothesis espoused by Dr Money, exposed as false
by Professor Diamond and others in what came to be known
as the "Joan/John" case, was that a person's sexual
identity was malleable rather than innate and fixed.
Accordingly, if one surgically revised the genitalia of a
person from more or less one sex to the other and had the
person live in accord with his or her culture's gender
expectations of people who possessed the sex usually
associated the revised genitalia, the person's sexual
identity would eventually change to become that sex.
Countless numbers of infants born with intersexuality
formed genitalia have suffered terribly, and been obliged
to experience a form of transsexualism, as a result of
receiving medical treatment in infancy based on this
erroneous hypothesis.
So the term "FTM", for example, is founded upon the
proposition that a person so described was female and has
been more or less changed to male. The medical or
scientific basis relied upon for that proposition is that
"male" should be assigned to those with a clearly male
genital formation, "female" to those with a clearly
female genital formation and "intersex" to a sexually
mixed or unclear genital formation. No other biological
sex indicators are taken into account, and no
consideration is given to intersexual diversity other
than that genitally indicated.
In communicating how people who experience the
predicament of transsexualism actually experience Sex
Affirmation Treatment - as an affirmation of an
unchanged innate sex or sexual identity and not a change
of sex (and that therefore Sex Affirmation Treatment,
including in adolescence, is therapeutic and essential) -
I rely upon a huge amount of contemporary medical science
and expert evidence that confirms that, of all the
sexually differentiated parts of a human being, the only
one that can't be changed, and which dominates a person's
life, is the person's sexual identity or "brain-sex".
In this understanding of sex and sexual diversity,
while genitalia are recognised as playing an extremely
important role in a person's ability to live in accord
with their sex or sexual identity, they do not determine
a person's sex. The brain does.
Hence I say that "MTF / FTM" is prejudiced, inaccurate
and genitocentric2,
focussed on the genitals as being the only or primary
indicators of a person's sex - thus ignoring or devaluing
chromosomal, hormonal and neurological brain sex
insignia; because this is what is meant when a medical
scientist or clinician uses these terms.
This is another indicator of the need for conscious
consideration of the language used to refer to people who
experience transsexualism and to people who express
gender differently. I'm sure that in using "MTF/ FTM"
many have not been consciously seeking to reinforce the
genitocentric prejudice inherent in such terminology; but
that is the effect. Language is a powerful force for good
and ill.
I coined and encourage the use of the terms "Affirmed
Male/boy/son" and their female equivalents when referring
to young people who experience transsexualism and who
have affirmed their innate sex, in order to establish an
alternative to the equivalent terms used by medical
science and colloquially. Whereas some would say "Female
to Male Transsexual/Transgender Person" or just "Girl or
daughter" (solely based upon original genitalia) to
describe a young person who had affirmed the male sex, I
call that person an "Affirmed Male", "Affirmed Boy" or
simply "son".
The old genitocentric terms such as "FTM" actually
attack and subvert the proposition that transsexualism is
an example of natural biological diversity in sexual
formation and undermines the legitimacy of the sex
affirmed by the person with transsexualism.
As reported by Dr. Eric Vilain, paediatrician, Chief
of Medical Genetics at the University of California USA
in the ABC Radio National "The Health Report" broadcast
on 14 March 2005:
"Recent advances in the field of the genetics
of sexual development have shown the extreme
complexity of defining males and females from a
biological standpoint. There is no one biological
parameter that clearly defines sex. The second point
is that there are differences between male and female
brains very early in development. This suggests that
the sexualization of the brain happens very early
during embryonic life. The last point is that
significant minorities of individuals are left out of
simple civil rights because they don't fit established
categories of sex."
In their medico/legal article entitled "Ethical
Concerns Related To Treating Gender Nonconformity In
Childhood And Adolescence: Lessons From The Family Court
Of Australia", learned authors Milton Diamond, Ph.D.,
University of Hawaii, John A. Burns School of Medicine
and Hazel Beh, Ph.D., J.D., University of Hawaii, William
S. Richardson School of Law, indicate just how far
science has now outstripped our common cultural sense or
awareness of the determination of an individual's
sex:
"Most commonly a person's sex is evaluated
based on chromosomes, gonads, hormonal levels,
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.3"
The Re: Kevin cases required that I answer the
challenge of trying to communicate my client husband's
personal experience of being a male experiencing
transsexualism and the broader experience of that
phenomenon to the judges (and later the media) involved
in the face of the cultural and expert mystification of
that experience. Barrister Teresa Anderson and I came to
believe early in the case that our client husband and his
wife had very little chance of overcoming the powerful UK
Corbett4
case authority (which basically said that transsexualism
was a kind of mental illness and that the derived claimed
sexual identity was not a legitimate one) and being
declared to be a man for the purposes of the Common Law
of Australia and entitled to legally marry as such, if we
permitted our client to be referred to as a "Female to
Male Transsexual (Person)", "a transsexual" or "a
trans-man" or allowed his state of being to be confused
with those people who are fundamentally comfortable with
their sexually differentiated bodies (and their sexual
identity) but who use dress and minor bodily alterations
to express gender in a culturally surprising or diverse
way.
In answer to this challenge, and as "Kevin" had
undergone sufficient internal genital surgery to be
accepted at the time as having undergone Genital
Reassignment Surgery ("GRS"), I came up with "Man of
Transsexual Background" on the basis of the expectation
that, at worst, this ungainly term was educational and,
at best, the parties and the court would, over time and
with the impetus of evidence and argument, just call him
"a man" and let him get married as such. Fortunately,
this is what took place.
This appreciation of the power of language to overcome
expert and cultural prejudice led to the creation of a
new language, which I called Affirmative
Language5,
to describe the experience of diversity in sexual
formation. My first attempt to publish a short dictionary
of Affirmative Language was in my paper with the
ungainly title The Legal Environment Following Re:
Kevin: New Perceptions And Strategies For Effective Law
Reform In Respect Of The Legal Rights Of People Who
Experience Variation In Human Sexual Formation And
Expression6
delivered at the NSW Anti-Discrimination Board's March
2003 Neglected Communities Forum event. From the
start, people living with transsexualism, as well as
people who experienced other forms of diversity in sexual
formation, welcomed this new terminology that honoured
their reality and spoke of their experience with some
clarity. I am pleased to say that that the use of
Affirmative Language has continued to grow exponentially
since then. It was extensively used by the Australian
Human Rights Commission in its recently (and regrettably
titled) Sex Files7
report as well as by the Chief Justice of the Family
Court of Australia, Diana Bryant, in her 2009 Costello
Lecture entitled "It's My Body Isn't It? Children,
Medical Treatment and Human Rights".8
Issues of sexual formation and gender expression are
fundamentally different and have clearly different
medico-legal interests and needs; especially for the
young.
Adapting the World Health Organisation definition, I
define "transsexualism" as:
"The experience of knowing oneself as being
of the sex (the "affirmed sex")9
opposite to the sex to which one has been assigned,
accompanied by a pervasive and sustained discomfort
with one's anatomical sex causing distress and a need
to live and be accepted as a member of the affirmed
sex accompanied by a need to have surgery and hormonal
treatment to make one's body as congruent as medically
possible, having due regard to the practicality and
safety of available medical treatment, with ones
affirmed sex.
In other words, the person experiencing transsexualism
experiences him/herself as being of one sex, while
his/her body functions and classifies him/her as if
he/she is of the other sex, experiences critical
discomfort as a result and would undergo every reasonably
safe medical procedure financially within his or her
means in order to attain full personal physical function
and social interaction consistent with that experienced
sex.
While it may once have been effective and even
necessary for people who experience diversity in sexual
formation and those who experience diversity in gender
expression to express themselves culturally as one united
"community" (including forming a loose form of community
with the Gay, Lesbian and Bisexual community as in "GLBT"
and "GLBTI" ), in order to get a cultural voice and be
culturally heard, there was always a discomfort to these
ungainly associations and a considerable price to be paid
in terms of the mystification of the truth of the
disparate predicaments, needs and interests of these
diverse groups.
As I argued at last year's Gender Centre Debate, the
cultural evolution of transsexualism (and
pan/trans-gender expression for that matter) is at a
point of maturity when these phenomena need separate
voices as the need for cultural clarity has outgrown the
need for numbers. This issue deserves a paper of its
own.
It's time that the human right to express gender in a
diverse way was expressed with clarity, incorporating
such voluntary body changes and other personal art as the
individual shall choose from time to time, without the
need to prove any particular medical condition and
without the need to fit into any cultural "box" or
category.
It is difficult to advocate for the right of people
generally to express gender in a diverse way (including
trans-gender expression) without the need for any medical
diagnosis or classification while confusing the subject
of the advocacy with people who have the condition of
transsexualism. Worse still is the sometimes horrific
harm done when a person who merely seeks to express
queer, pan or transgender, perhaps through a need to seek
some kind of legitimacy in a medical diagnosis through
the mimicking of symptoms, or through misunderstanding,
receives Sex Affirmation Treatment when he/she should
not.
Thankfully, this error has been virtually eliminated
in the accepted medical protocol (the "Dutch Protocol" -
to be discussed later) approved by WPATH and almost
universally applied to the treatment of young people with
transsexualism where a number of strategies are in place
to make sure that young people who are truly pan or
transgender, or who are merely unsure or confused as to
their sexual identity, do not receive treatment. A
similar protocol should apply to adults, but with both
treatment protocols administered by endocrinologists as
the primary treating physician.
It is also much harder, for example, to convince the
Commonwealth and State Governments of the critical need
people who experience transsexualism, and especially
those on the verge of adolescence, have to receive
publicly funded Sex Affirmation Treatment when such
people are confused with those with gender expression
issues. This is a critical human rights issue as, in the
absence of receiving Sex Affirmation Treatment, many such
young people who experience transsexualism self-harm or
self-destruct.
The fact is that people who experience transsexualism
are not likely to be recognised by government in
Australia and receive publicly funded Sex Affirmation
Treatment (as they do in the United Kingdom) when such
people are referred to as "Transgender" while another
group of people, also referred to and referring to
themselves as "Transgender" say to the media and at
public forums that, for them, such treatment is wholly or
partly unnecessary or optional. Witness the Australian
Human Rights Commission recently prioritising
documentary/identity issues above medical treatment
issues for the Australians they identified as being "Sex
and Gender Diverse".
This situation also creates a mistaken perception that
young people who experience transsexualism are an extreme
example on some kind of misconceived continuum of
"transgender youth"; who can perhaps be moderated with
psychiatric "treatment".
I note that it also suits a number of clinicians to be
able to "treat" a greater number of people (including
young people) under the imprecise GID10
differential diagnosis and under the umbrella
"Transgender" label than they would be legally permitted
to do if they were obliged to differentially diagnose and
distinguish transsexualism. Under the terms of the
present misleading and broad DSM IV malaise those
clinicians concerned to make a proper differential
diagnosis of adolescent transsexualism are obliged to
make up their own confusingly hybrid terms such as
"Extreme GID" and "GID Transsexual".11
Once upon a time, as soon as I raised issues such as
these, I could almost hear the howls of accusations of
transsexual superiority/separateness and the lynching mob
in motion! This is understandable in a country like
Australia where Sex Affirmation Treatment, and especially
quality GRS, is hard to obtain and only available to
those who can afford it. It is also understandable
amongst professionals in the sociological and psychiatric
communities who have established their reputations and
practices on sexual identity through the nurture/flexible
(feminist) "Gender Theory" approach to this field and/or
the mental illness model for transsexualism and diverse
gender expression.
Now, with more sophistication in both research and
discussion being introduced to the field, a much more
mature approach is possible. "Cross-Dressing" and other
forms of pan/trans-gender expression are no longer
vilified so much by the culture so that the original term
"transgender", with its specific meaning relating to
diversity in gender expression, can be reinvigorated and
culturally distinguished from transsexualism. So too,
mature and intelligent advocacy can be undertaken for
public funding/subsidy of Sex Affirmation Treatment
(including GRS) through Medicare for people who
experience transsexualism of as an essential therapeutic
medical treatment; free of the implication that such
treatment is optional and an over-reaction to a
psychological illness.
Numbers/Prevalence
While each individual is precious, numbers are
important to politicians and dictate health policy.
It is difficult to estimate the number of people
living with transsexualism in Australia; let alone those
under eighteen years of age whom I will term "young". The
Australian Bureau of Statistics (ABS) says that there
were 21,875,000 Australians as of 30 June 2009. Based
upon an extrapolation and a rounding up of the ABS
figures and those of the United Nations it is reasonable
to estimate the current number of Australians eighteen
years or younger at approximately 5,400,000.
I use eighteen years of age as the benchmark for the
term "young" as that is in accord with the use made of
that word in the Family Court of Australia and as it is a
turning point for civil and human rights. Prior to
attaining eighteen years of age, Australians with
transsexualism cannot legally access GRS and are
consequently unable to alter their legal sex and are
denied a congruent and accurate legal identity post sex
affirmation; with all the contemporary dangerous
implications entailed. Until they turn eighteen, neither
these young Australians, nor their parents on their
behalf, can access the essential and reversible
Adolescent Sex Affirmation Treatment without an Order of
the Family Court of Australia or, in some circumstances,
a State Supreme Court, as a result of the well-meaning,
but in my view incorrectly decided, decision in the 2004
Family Court case called Re: Alex12
- with all the stress, expense, dangerous delay and
opportunity for error that process of delay involves.
Typical cited prevalence numbers for transsexualism as
published by Bakker and Others in 199313
and adopted by WPATH are 1 in 11,900 for Affirmed Females
[AF] and 1 in 30,400 for Affirmed Males
[AM].14
Since about 2001, these statistics have been
challenged by a number of researchers; but most
stridently by Lyn Conway. I am indebted to the 6
September 2007 paper entitled On the Calculation of
the Prevalence of Transsexualism15
published and presented by Lynn Conway and Femke
Olyslager for a detailed and rather complex discussion of
the prevalence of transsexualism and how it has been, and
perhaps should be, assessed. In a nutshell, Conway and
Olyslager argue that the fact that prevalence assessment
has been producing a greater rate of prevalence year by
year has to be explained. The fact is that throughout the
world, including even developed countries, many people
with transsexualism experience severe psychological
suffering in shamed silence without anyone (sometimes
including the sufferer) ever knowing that they experience
transsexualism and a successful treatment is available.
Some die that way.
Even if a person publicly affirms his/her innate sex
and is able to seek help and obtain a diagnosis, such a
person is often unable for legal, religious, personal or
financial reasons to access full Sex Affirmation
Treatment; including GRS. Thus, the traditionally widely
accepted statistics, based upon the number of GRS
procedures performed in a given population, do not
actually report the prevalence of transsexualism at all.
Conway and Olyslager, applying the results of more
contemporary methods of assessment conclude:
"... the lower-bounds on the prevalence of
the underlying condition of transsexualism to be
between 1:1000 [AF] and 1:2000 [AM],
using those reports' own data."
Moreover, these authors postulate that by using
"... recent incidence data and alternative
methods for estimating the prevalence of
transsexualism, all of which indicate that the lower
bound on the prevalence of transsexualism is at least
1:500 [for both affirmed sexes], and possibly
higher"
While I have not evaluated their calculations and
resultant statistics, I agree with Conway and Olyslager
that the accepted incidence statistics are simply wrong
and fail to account for observable facts. For example,
True Colours has new parents joining regularly from all
States of Australia.
As transsexualism is innate and you can't catch it or
acquire it, the actual numbers and the steady and
significant increase in the number of young people with
transsexualism in Australia as compared to prior
generations, I postulate that it is best understood in
terms of its being the result of greater cultural and
parental understanding and support for difference and
diversity generally; and diversity in sexual formation in
particular. Fewer children are trying to live in
stealth.
Thus, if one applied Conway and Olyslager's more
conservative prevalence rate for transsexualism based
upon past data methods applicable for affirmed females
(1:1000) to the Australian population and applied it to
both sexes, the result is that as at 30 June 2009 out of
a population of 21,875,000 Australians of all ages there
are likely to be 21,875 Australians who are currently
experiencing transsexualism. I note that Conway and
Olyslager postulate that about double the number of
people who experience transsexualism in any population
are likely to exhibit a preference for pan/trans-gender
expression. If the current number of Australians eighteen
years or younger is approximately 5,400,000, that is
approximately 25% of the total population, then this rate
of prevalence indicates that there are likely to be
approximately 5,469 Australians eighteen years and
younger who are experiencing transsexualism at this
time.
Time will tell. I expect that we will continue to see
the number of unexplained self-harming events and
suicides (especially amongst the young) shrink as the
number reporting the experience of transsexualism and
accessing timely Sex Affirmation Treatment increases.
Adolescent Sex Affirmation
Treatment
So what is Sex Affirmation Treatment in
adolescence?
The medical protocol accepted and applied in Australia
for the medical treatment of adolescents with
transsexualism is the internationally accepted and
adopted treatment guidelines of WPATH Standards of Care
for Gender Identity Disorders16 which reflects the
protocol established by the Dutch clinicians, Professor
Doctors P.T. Cohen-Kettenis and H. Delemarre-van de Waal
at the V.U. University Medical Centre, Amsterdam, the
Netherlands. This treatment protocol consists of two
Phases of Treatment during adolescence. The First
(diagnostic) Phase of treatment, commences at
approximately Tanner Stage 2 (the onset) of physical
puberty, during which physical puberty is postponed using
hormonal medication while supportive counselling and
confirmatory diagnosis takes place ("Phase One
Treatment").
The Second Phase of treatment, commencing after
the ultimate diagnosis is completed at about
mid-adolescence (or by about sixteen years of age)
continues Phase One Treatment (including psychological
support) while introducing other hormonal medication for
the purpose of inducing the development of
age-appropriate secondary sexual characteristics
consistent with the treated adolescent's Affirmed Sex
("Phase 2 Treatment"); collectively ("medical treatment
for adolescent transsexualism").
The Deplorable Impact of the Family
Law Act and Re: Alex On Access to Therapeutic Medical
Treatment
I was fortunate to appear for the parents of the
first young Australian to receive full (both Phase 1 and
2) Adolescent Sex Affirmation Treatment.
Although the circumstances of a pending decision, as
well as the already well-stretched constraints of this
essay, prevent me from fully exploring the current
Australian legal issues concerning that medical
treatment, I can relate that the expert evidence
currently available to Australian courts can be
summarised as follows:
- The adolescent diagnosis of GID indicates the
condition of transsexualism in adolescence and
adulthood;
- The differential diagnosis of adolescent
transsexualism is reliably made; with other phenomena
such as mental illness, confusion and/or discomfort as
to gender or sexual identity (called "gender
dysphoria" to distinguish it from GID/transsexualism),
homosexuality and gender non-conformity easily
diagnostically distinguished applying the DSM criteria
for GID and the WPATH Standards of Care.
- The reliable differential diagnosis of adolescent
transsexualism is not primarily dependent upon the
individual circumstances, maturity or decision-making
capacity of the individual adolescent, but rather the
clarity, consistency and longevity of an adolescent's
affirmation of a sex opposite to the adolescent's
first assigned sex;
- The experts agree with the findings of Chisholm J
in Re: Kevin concerning the aetiology or
causation of transsexualism; with the most likely
explanation for the phenomenon of transsexualism being
that it is a biological or physiological phenomenon
whereby a human being experiences an intersexual
brain/body sexual differentiation resulting in the
experience of discontinuity of sexual identity between
an individual's mind and body;
- The only appropriate and effective treatment for
adolescent transsexualism is to bring the individual's
body into sexual harmony with the individual's mind by
way of medical treatment for adolescent transsexualism
incorporating Phase 1 and Phase 2 Sex Affirmation
Treatment.
- Both Phases 1 and 2 of Sex Affirmation Treatment
are properly characterised as directly and personally
therapeutic and administered for the purpose of
treating a malfunction or ameliorating the dysfunction
in and of the person of the patient. In circumstances
where diagnostic Phase 1 of that treatment is
professionally administered, there is no possibility
of parent/guardian/child conflict of interest or
intent.
- Phase 1 and Phase 2 Sex Affirmation Treatment are
different and separate non-invasive and non-surgical
medical treatments administered for different specific
purposes with different consequences and cannot be
conceptually conflated;
- All of the known consequences of Phase 1 and Phase
2 Sex Affirmation Treatment are reversible; naturally
on the cessation of treatment as to Phase 1 Treatment
and naturally and surgically as to Phase 2
Treatment;
- Permanent irreversible infertility is not a known
or expected result of the administration of either of
Phase 1 or Phase 2 Sex Affirmation Treatment - or both
treatments in combination from mid-adolescence until
early adulthood;
- The denial of Phase 1 and Phase 2 Sex Affirmation
Treatment to adolescents with transsexualism has
certain dire personal, family and cultural
consequences - including a significant risk of the
self-harm and/or death of adolescents by suicide;
- All adolescents living with transsexualism around
the world share the same condition and experience the
same effects from the provision or denial of Sex
Affirmation Treatment;
- The Dutch clinicians, Professor Doctors P.T.
Cohen-Kettenis and H. Delemarre-van de Waal at the
V.U. University Medical Centre, Amsterdam, The
Netherlands, have now carried out a Longitudinal Study
of almost 100 consecutive adolescent patients who have
received Sex Affirmation Treatment and there is yet to
be a case of misdiagnosis or regret as a result of
their conservative yet complete treatment
protocol.
Then how could a decision like Re: Alex come
about? In my view, the error in the decision in Re:
Alex, which classified Adolescent Sex Affirmation
Treatment as a "special medical procedure" requiring
court approval, came about for the following main
reasons:
- The state of local medical expertise given as
evidence at the time failed adequately to distinguish
transsexualism in childhood and adolescence from
conditions of mental disorder, illness, confusion or
transgender expression combined with a failure to
adduce the best international expert advice
available;
- There was an utter absence of adequate legal
submission since the parties to the case seemed simply
to acquiesce to the Applicant Government Department's
desire to divest itself of its responsibilities for
Alex and his medical treatment by transferring that
responsibility to the Family Court;
- Factors 1 and 2 were combined with the use by both
experts and lawyers of a blend of "trans" and
genitocentric language to produce new words and terms
such as "Gender Identity Dysphoria" and a perception
of adolescent transsexualism as a mental illness -
where treatment was seen only as a panacea for the
worst affected individuals - and not an essential
therapeutic medical treatment to be accessed as a
right.
- In these circumstances an incorrect application of
the High Court's opinion in Marion's
Case17
resulting in Adolescent Sex Affirmation Treatment
being classified as a "special medical procedure",
like the non-therapeutic sterilisation of a mentally
disabled adolescent - when it is, in fact, a
singularly therapeutic, conservative and comparatively
safely administered medical treatment. When it is
denied to a young person with transsexualism on the
verge of puberty there are both short and long term
risks of permanent psychological damage, self harm and
diminution of life.
The wrong of the Re: Alex decision is
demonstrated by the fact that every day throughout
Australia adolescents with intersexual conditions (other
than transsexualism) receive precisely the same hormonal
medications for precisely the same therapeutic purposes
as in Sex Affirmation Treatment without that treatment
being classified as a "special medical procedure". And
those young Australians receive that crucial,
time-developmentally-critical medical treatment without
their parents having to first undertake the huge task of
obtaining an Order of the Family Court of Australia.
Until it is formally recognised as error and set aside
by government legislative action or court decision, it
seems to me the direct and natural continuing consequence
of the Re: Alex decision is that young Australians
who experience the life-threatening and disabling
condition of transsexualism and who, as they enter
adolescence, should be receiving the clearly safe,
successful and therapeutic medical treatment that is Sex
Affirmation Treatment, will not, and they will suffer
needlessly as a result.
Against this tragic legal background, however, there
are decisions pending that may cut short the terrible
ongoing implications of the Re: Alex decision and
anyone reading the 2009 Costello Lecture delivered by the
current Chief Justice of the Family Court of Australia,
Diana Bryant, entitled "It's My Body Isn't It? Children,
Medical Treatment and Human Rights"18
has to be optimistic that, whatever the result of any one
case, humane reform to avert the worst ongoing affects of
the Re: Alex decision will come sooner rather than
later. In the meantime, I know of no other country in the
world that has made the access of young people with
transsexualism subject to a system of court authorisation
similar to that now existing in Australia after Re:
Alex.
The Contemporary Australian
Scene
Young people with transsexualism in contemporary
Australia face huge challenges accessing medical
treatment.
Those who are blessed with a secure enough environment
and supportive parents, simply announce to the world
their innate sex beginning as soon as they are
cognitively able to grasp and express the difference
between the sexes; usually between four and ten years of
age. And as reported by Dr. William Reiner, child
psychiatrist, University of Oklahoma Health Sciences
Center in the ABC Radio National "The Health Report"
broadcast on 14 March 2005:
"And what I began to realise very early on is
that in order to discover who or what a child is or
for that matter who or what an adult is you have to
ask them ... I have a six year old [patient],
two seven year olds, (and) two eight year olds who
spontaneously declare it. [a sex different from
that assigned based upon genitalia]. They say "I'm
a boy and I don't know how you could not know that
..." and sometimes they'll start just saying "My name
is Bob ...".
Unfortunately, if that trusting revelation of
fundamental innate identity is met with dismissal,
ridicule or other form of emotional or physical violence,
then dissociation and stealth, with all their long
lasting harmful side-effects, become the only survival
tools available for young ones in this predicament.
There is also the predicament of young people with
transsexualism whose affirmation of sexual identity is
supported by their parents, but who then find it hard to
gain medical help and/or acceptance for their child
within school environments. While this situation is
improving rapidly - due to the number of parents doggedly
pursuing the rights of their children to live according
to their affirmed sex - given prevalence numbers there
are many more young people who have not been prepared or
able to risk seeking parental help and support and who
live their affirmed sex in secrecy if not shame.
Saddest of all to me, however, is the case of those
young people with transsexualism and their families who
end up in the care of support groups, local doctors,
counselling centres, psychologists and psychiatrists who,
while genuinely believing they are competent to help, are
not even competent to advise these young people and their
parents/carers of the existence and availability of Sex
Affirmation Treatment.
I do not look forward to the next conversation I am
obliged to have with a good loving parent who found out
about the Phase 1 puberty-suspending aspect of Sex
Affirmation Treatment when it was too late for their
child to benefit from it. These parents grieve with their
adolescent child as he or she struggles to live with that
missed opportunity and with the life-long disability of a
body that has already undergone a physical puberty
utterly at odds with the adolescent's sexual identity.
Such conversations are often characterised by the
suffering, social isolation and self-harming of the
children and the distress of the parents who are full of
a remorse, guilt and that special anger reserved for
misplaced trust.
As with almost everyone of my generation, my
affirmation of my femaleness to my parents in childhood
turned out, even with a referral to a psychiatrist, to be
futile. I went underground and survived in a world
without the Internet, in shame and secrecy and utter
dissociation. I, along with many others, can only imagine
how things might have been if I had been able to receive
Adolescent Sex Affirmation Treatment. Such is life - as
they say.
Ultimately, I have found that thinking about young
people with transsexualism and considering their
contemporary reactions to Sex Affirmation, family and the
provision or denial of Sex Affirmation Treatment, helps
me to better discover who I am and where I've been.
At True Colours we can provide referral to expert
medical practitioners for Adolescent Sex Affirmation
Treatment. We hope to encourage more medical
practitioners and psychologists to fully investigate and
gain a thorough expertise this field of practice and to
provide for the education of medicine, law and culture in
Australia concerning the reality and needs of young
people with transsexualism as well as their parents,
carers and families.
References:
1 Full case references and
a detailed discussion for this case can be found in the
author's paper "Re Kevin in Perspective" published by
Deakin University and accessible
at True Colours
2 Meaning focused upon the
genitals as being the only or primary indicators of a
person's sex - thus ignoring or devaluing chromosomal,
hormonal and neurological/brain sex insignia.
3 (2005) Diamond and Beh,
"Ethical Concerns Related to Treating Gender
Nonconformity in Childhood and Adolescence: Lessons from
the Family Court of Australia. Case School of Law Journal
of Law-Medicine. 15.2.240 footnote 2.
4 Ibid.
5 An up-to-date version of
Affirmative Language with a critique of "trans-language"
can be accessed
at True Colours .
6 
302kb The
Legal Environment Following Re Kevin: New Perceptions
And Strategies For Effective Law Reform In Respect Of The
Legal Rights Of People Who Experience Variation In Human
Sexual Formation And Expression - A discussion paper
produced for the Neglected Communities Forum, 25 Feb
2003, NSW Parliament House
7 At
Australian Human Rights Commission
8 Both
the text and and audio version of this lecture can be
accessed at True Colours
9 "affirmed sex" where "sex"
indicates a person's" innate sexual identity" (also
sometimes called gender identity) and not a person's
sexuality or object of sexual attraction.
10 "Gender Identity
Disorder"(GID) in the Diagnostic and Statistical Manual
of Mental Disorders 4th edition (DSM- IV) published by
the American Psychiatric Association.
11 Vigorous representation are
being made through the World Professional Association for
Transgender Health (WPATH) and directly to the American
Psychiatric Association to have GID removed from the DSM-
IV or at least, transsexualism and pan/transgender
expression removed from the DSM- IV. The more support the
better - so make your contribution to the debate.
12 Re: Alex - Hormonal Treatment
Fam L.R. Gender Identity Dysphoria 200431 Fam L.R.
503.
13 (1993) A. Bakker, P.J.M. van
Kesteren, L.J.G. Gooren and P.D. Bezemer. "The prevalence
of transsexualism in the Netherlands" Ada Psychiatrica
Scandinavica, v. 87, pp. 237-238.
14 Square brackets show material
has been inserted by the author of this article.
15 Presented at the WPATH. 20th
International Symposium, Chicago, Illinois, September
5-8, 2007.
16 The Professional Association
for Transgender Health (WPATH)
17 SMB and JWB; Secretary,
Department of Health and Community Services (sic) (Re
Marion) (1992) 175. C.L.R. 218/
18 Op cit; footnote 8
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