Sex and the surgeon's knife: The family court's dilemma... informed consent and the specter of iatrogenic harm to children with intersex characteristics

American Journal of Law and Medicine

Volumn 33, Issue 4, 2007, Pages 625-661

  Gurney, Karen ^a,b  

^a Fitzroy Legal Service Inc   (Australia)

^b DEAKIN UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

COURT; GENDER IDENTITY; HERMAPHRODITISM; HORMONAL THERAPY; HUMAN; HUMAN RIGHTS; IATROGENIC DISEASE; INFORMED CONSENT; LAW; LAW SUIT; MEDICAL DECISION MAKING; MEDICAL ETHICS; PARENTAL CONSENT; REVIEW; SEX DETERMINATION;

EID: 38749138475     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885880703300403     Document Type: Review

References (303)

1. LEWIS CARROLL, THROUGH THE LOOKING GLASS AND WHAT ALICE FOUND THERE, Ch. 6 (1871).
2. This classic, but exclusionary view was clearly enunciated by Ormrod J, in the UK decision Corbett v. Corbett, [1970] 2 All E.R. 33 (P.) (U.K.).
3. Re Kevin (2004) 165 F.L.R. 404 (Austl.) (discussing the validity of marriage of transsexuals).
4. Id. at 406-07.
5. Id. at 409-10.
6. For a more detailed discussion, see Rachael Wallbank, Re Kevin in Perspective, 9 DEAKIN L. REV. 461, 467-468 (2004).
7. SIGMUND FREUD, THE COMPLETE INTRODUCTORY LECTURES ON PSYCHOANALYSIS 577 (James Strachey ed., W. W. Norton 1966) (1933).
8. For an explanation of the processes of sexual differentiation, see the online resource Endotext.com chapter on sexual differentiation. Nathalie Josso and Rodolfo Rey, Sexual Differentiation, http://www.endotext.org/pediatrics/ pediatrics7/pediatricsframe7.htm (last visited Oct. 15, 2007).
9. Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 ARIZ. L. REV. 265, 266 (1999).
10. Josso & Rey, supra note 8.
11. See, e.g., Laura S. Allen & Roger A. Gorski, Sexual Dimorphism of the Anterior Commissure and Massa Intermedia of the Human Brain, 312 J. COMP. NEUROLOGY 97 (1991);
12. Laura L. Carruth et al., Sex Chromosome Genes Directly Affect Brain Sex Differentiation, 5 NATURE NEUROSCIENCE 933 (2002);
13. Carina Dennis, The Most Important Sexual Organ, NATURE, Jan. 29, 2004, at 390;
14. Frank P. M. Kruijver et al., Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. CLINICAL E NDOCRINOLOGY & METABOLISM 2034 (2000);
15. Dick F. Swaab et al., Sexual Differentiation of the Human Hypothalamus, 511 ADVANCED EXPERIMENTAL MEDICAL BIOLOGY 75 (2002);
16. Jiang-Ning Zhou et al., A Sex Difference in the Human Brain and its Relation to Transsexuality, NATURE, Nov. 2, 1995, at 68.
17. Anne Fausto-Sterling, The Five Sexes, Revisited, THE SCIENCES, July-August 2000, at 20.
18. THE MACQUARIE DICTIONARY, (Arthur Delbridge et al. eds., 2nd ed. 1992);
19. STEDMAN'S MEDICAL DICTIONARY, (Thomas L. Stedman ed., 24th ed. 1984).
20. Yves Morel et al., Aetiological Diagnosis of Male Sex Ambiguity: A Collaborative Study, 161 EUR. J. PEDIATRICS 49, 57 (2002).
21. Melanie Blackless et al., How Sexually Dimorphic Are We? Review and Synthesis, 12 AM. J. HUM. BIOLOGY 151, 152 (2000).
22. Id. at 159.
23. Fausto-Sterling, supra note 12, at 20.
24. The true statistical incidence of such variations is a matter of hot debate in both medical and advocacy circles, but in combination they are certainly not an overly rare event. There are several factors leading to the substantial disparities that currently exist, not the least of these being in-house politics between different affected groups and their consequently different interpretations of what actually constitutes "ambiguous sex."
25. For example, Migeon et al. found that almost half of 46,XY karyotype individuals who presented as infants or children with various degrees of under-masculinization of their genitalia, whether reared male or female, were neither well informed about their medical and surgical history nor satisfied with their knowledge. Claude J. Migeon et al., 46,XY Intersex Individuals: Phenotypic and Etiologic Classification, Knowledge of Condition, and Satisfaction with Knowledge in Adulthood, 110 PEDIATRICS e32 (2002).
26. Many first person narratives recounting individual traumas are contained in INTERSEX IN THE AGE OF ETHICS (Alice D. Dreger ed., University Publishing Group 1999). A number of other essays are available online at http://www.isna.org/library/bibonline.html.
27. John S. Wiener, Insights Into Causes of Sexual Ambiguity, 9 CURRENT OPINION IN UROLOGY 507 (1999).
28. Leonard Sax, How Common is Intersex? A Response to Anne Fausto-Sterling, 39 J. SEX RES. 174, 175 (2000).
29. Id.
30. Id.
31. Id. at 175-76.
32. H. F. L. Meyer-Bahlurg, What Causes Low Rates of Child-Bearing in Congenital Adrenal Hyperplasia?, 84 J. CLINICAL ENDOCRINOLOGY & METABOLISM 1844, 1844 (1999).
33. Sax, supra note 22, at 175.
34. Blackless et al., supra note 15, at 157.
35. See Meyer-Bahlurg, supra note 26.
36. Blackless et al., supra note 15, at 161.
37. See Sax, supra note 21, at 177 (explaining that by not including Turner's and Klinefelter's Syndromes, among others, in the intersex category, the incidence of intersex drops nearly 100 times).
38. Id. at 176.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id.
44. See Blackess et. al., supra note 15 at 161 (explaining that most chromosomal abnormalities other than Turner's and Klinefelter's Syndromes require surgical intervention because of intermediate genital development).
45. Activists from some genitally intersexed groups are vehement in their opposition to transsexualism being considered an intersex condition because they appropriated the term as a form of identity to aid the pursuit of their political agenda to prohibit infant surgeries. Ironically, research into transsexualism and the consequent general understanding that sex and gender are different has greatly assisted the campaign against the early surgical assignment of sex in infants. See, e.g., Milton Diamond, Sex and Gender are Different: Sexual Identity and Gender Identity are Different, 7 CLINICAL CHILD PSYCHOL.& PSYCHIATRY 320 (2002).
46. Dr Magnus Hirschfeld was the first to coin the term "transsexualism, " placing it in the intersex nosology, but using this new term to distinguish the neurological gynandromorph from the physiological hermaphrodite. Magnus Hirschfeld, Die Intersexuelle Konstitution, 23 JAHRBUCH FÜR SEXUELLE ZWISCHENSTUFEN 3 (1923).
47. PIERRE-HENRI CASTEL, Chronologie et bibliographie représentative du transsexualisme et des pathologies de l'identité sexuelle de 1910 à 1998 [Chronology and bibliography representative of transsexualism and pathologies of sexual identity - 1910 to 1998], in LA MÉTAMORPHOSE IMPENSABLE: ESSAI SUR LE TRANSSEXUALISME ET L'IDENTITÉ PERSONNELLE [THE IMPOSSIBLE METAMORPHOSIS: ESSAY ON TRANSSEXUALISM AND PERSONAL IDENTITY] (Gallimard 2003).
48. See Zhou et al., supra note 11, at 68;, Kruijver et al., supra note 11, at 2039.
49. For a detailed discussion of the intersexual nature of transsexualism and its historical inclusion in the intersex nosology, see Karen Gurney, Twisting the Knife - Discrimination in the Law, 9 DEAKIN L. REV. 339, 341-50 (2004).
50. Greenberg, supra note 9, at 278-92.
51. It is the overwhelmingly urgent desire for rehabilitation of the sex phenotype that facilitates a differential diagnosis distinguishing transsexualism, a somato-psychic disorder, from the seemingly similar, but patently different, non-transsexual gender identity disorder in adults and adolescents (GIDAANTS) of the DSM III, a psycho-somatic disorder. Harry Benjamin, Transvestism and Transsexualism, 3 Journal of Sex Research 107 (1953) [hereinafter Benjamin, Transvestism];
52. HARRY BENJAMIN, THE TRANSSEXUAL PHENOMENON (The Julian Press, Inc., 1966) [hereinafter BENJAMIN, TRANSSEXUAL PHENOMENON]
53. Alice Dormurat Dreger, Ambiguous Sex: Or Ambivalent Medicine? Ethical Issues in the Treatment of Intersexuality, THE HASTINGS CENTER REPORT, May-June 1998, at 24, 26.
54. L. 'First, do no harm.' Attributed to the Hippocratic Corpus. HIPPOCRATES, EPIDEMICS Book I Section 2:5, available at http://classics.mit.edu/Hippocrates/epidemics.1.i.html.
55. The Constitutional Court in Columbia recently refused to sanction two infant sex assignment procedures based on amicus evidence that the likelihood of a mistake being made was not remote. The decisions dramatically limited the ability of doctors in Colombia to perform early genital surgery on intersexed infants. The Court established new rules restricting parents' authority to authorize genital surgery on their intersexed children, with the goal of forcing parents to put the child's best interest ahead of their own fears and concerns about sexual ambiguity. Sentencia No. SU-337/99 (Colom.); Sentencia No. T-551/99 (Colom.).
56. See BENJAMIN, TRANSSEXUAL PHENOMENON, supra note 44.
57. For example, both the Talmud and Tosefta contain regulations for people of mixed sex. ANNE FAUSTO-STERLING, SEXING THE BODY: GENDER POLITICS AND THE CONSTRUCTION OF SEXUALITY 33 (Basic Books 2000).
58. SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF ENGLAND 57 (1628) available at http://oll.libertyfund.org/Home3/ Book.php?recordID=0489. Interestingly, this excerpt from Lord Coke's writings is also quoted in JOHN MONEY, SEX ERRORS OF THE BODY AND RELATED SYNDROMES 3 (PH Brooks Publishing Co. 1994).
59. A test devised by Edwin Klebs in 1876 during a period sometimes irreverently described as "the Age of the Gonads." Amy B. Wisniewski, Hermaphrodites and the Medical Invention of Sex, 189 J. NERVOUS & MENTAL DISEASE 197, 197-198 (2001).
60. A test for determining sex by studying hormone levels was first devised by British endocrinologist Walter Heape. WALTER HEAPE, SEX ANTAGONISM, (Constable & Constable 1913). Edmund B Wilson in 1925 was the first to introduce the terminology and concept of sex chromosomes. CASTEL, supra note 41.
61. Julie Greenberg, Legal Aspects of Gender Reassignment, 13 THE ENDOCRINOLOGIST 277, 277 (2003)
62. (citing Alice Domurat Dreger, A History of Intersexuality: From the Age of Gonads to the Age of Consent, 9 J. CLINICAL ETHICS 345, 345-48 (1998)).
63. For example, Dewhurst and Gordon noted "[T]hat a newborn should have a deformity [affecting] so fundamental an issue as the very sex of the child . . . is a tragic event which immediately conjures up visions of a hopeless psychological misfit doomed always to live as a sexual freak in loneliness and frustration." CHRISTOPHER J. DEWHURST & ROBERT R. GORDON, THE INTERSEXUAL DISORDERS 1 (Balliere, Tindall & Cassell, 1969) (describing the anguish of parents of newborns with sexual deformities as one "which immediately conjures up visions of a hopeless psychological misfit doomed always to live as a sexual freak in loneliness and frustration").
64. Morgan Holmes, Rethinking the Meaning and Management of Intersexuality, 5 SEXUALITIES 159, 169 (2002).
65. SUZANNE KESSLER, LESSONS FROM THE INTERSEXED 55 (Rutgers University Press, 1998).
66. See, e.g., Albert Ellis, The Sexual Psychology of Human Hermaphrodites, 7 PSYCHOSOMATIC MEDICINE 108 (1945).
67. See, e.g., John Money et al., An Examination of Some Basic Sexual Concepts: The Evidence of Human Hermaphroditism, 97 BULLETIN JOHNS HOPKINS HOSPITAL 301 (1955).
68. Id. at 308 ("In light of hermaphroditic evidence, it is no longer possible to attribute psychological maleness or femaleness to chromosomal, gonadal or hormonal origins, not to morphological sex differences of either the internal accessory reproductive organs or the external genitalia.").
69. John Money et al., Hermaphroditism: Recommendations Concerning Assignment of Sex, Change of Sex, and Psychologic Management, 97 BULLETIN JOHNS HOPKINS HOSPITAL 284 (1955) [hereinafter Money et al., Hermaphroditism].
70. Id. at 285.
71. Hippocrates, 2 Decorum para. XVI, in 2 HIPPOCRATES 297, (W.H.S. Jones trans., Harvard University Press 1959) (1923)
72. cited in Sheldon F. Kurtz, The Law of Informed Consent: from Doctor is Right to 'Patient has Rights', 50 SYRACUSE L. REV. 1243, 1243 (2001).
73. J. David Hester, Intersexes and Informed Consent: How Physicians' Rhetoric Constrains Choice, 25 THEORETICAL MED. 21, 26 (2004).
74. Alyssa Lareau, Who Decides? Genital-Normalising Surgery on Intersexed Infants, 92 GEO L.J. 129, 151 (2004).
75. Hester, supra note 64, at 24.
76. Id.
77. Money et al., Hermaphroditism, supra note 61, at 288-90.
78. Hester, supra note 64, at 26.
79. Id. at 25.
80. Id. at 26.
81. M. Hendricks, Is it a Boy or a Girl?, 11 JOHNS HOPKINS MAG. 10, 15 (1993).
82. Greenberg, supra note 53, at 277.
83. Dreger, supra note 46 at 28.
84. This statement regarding the primacy of surgical efficiencies over innate sexual identity is attributed to Dr John Gearhart, a paediatric urologist who worked with Professor Money at Johns Hopkins Hospital. Hendricks, supra note 72, at 15.
85. JOHN MONEY & ANKE EHRHARDT, MAN WOMAN, BOY AND GIRL. DIFFERENTIATION AND DIMORPHISM OF GENDER IDENTITY FROM CONCEPTION TO MATURITY 117-166 (Johns Hopkins University Press, 1972);
86. John Money, Ablatio Penis: Normal Male Infant Sex-Reassignment as a Girl, 4 ARCHIVES SEXUAL BEHAV. 65, 66 (1975).
87. See Hanzel G. Beh & Milton Diamond, An Emerging Ethical and Medical Dilemma: Should Physicians Pperform Sex Assignment Surgery on Infants with Ambiguous Genitalia?, 7 MICH. J. GENDER & L. 1 (2000).
88. A study of 59 children born with genital ambiguity of various aetiologies revealed psychopathology in 39%, despite intensive parental counselling and individual child psychotherapy; 13% of children assigned as female developed a cross-gender identification. Froukje M. E. Slijper et al., Long-Term Psychological Evaluation of Intersex Children, 27 ARCHIVES SEXUAL BEHAV. 125, 125 (1998).
89. Intersex activist Cheryl Chase was born with hermaphrodism and underwent a series of surgeries including clitorectomy to remove her testosterone-enhanced phallus. At no time was she truthfully told why all these procedures were necessary and eventually she had a nervous breakdown. She recounts, "until I was 35, I was ashamed and terrified that people would find out that I was different than a woman. Like many, supposedly happy and successful patients, I was silenced." Althaea Yronwode, Intersex Individuals Dispute Wisdom of Surgery on Infants, SYNAPSE, March 11, 1999, available at http://www.luckymojo.com/tkintersex.html.
90. Harry Benjamin International Gender Dysphoria Association (HBIGDA).
91. Benjamin, Transvestism, supra note 45, at 13.
92. BENJAMIN, TRANSSEXUAL PHENOMENON, supra note 45.
93. Milton Diamond, Sex and Gender: Same or Different?, 10 FEMINISM & PSYCHOL. 46 (2000).
94. See, e.g., Heino F.L. Meyer-Bahlburg, Gender Assignment and Reassignment in 46,XY Pseudohermaphroditism and Related Conditions, 84 J. CLINICAL ENDOCRINOLOGY & METABOLISM 3455, 3455 (1999). Meyer-Bahlburg explains that in the original formulation of the optimal-gender policy, consideration of the sexual differentiation of the brain did not play a role because nothing was known about it at that time. The intersex data then available were interpreted as showing that 'psychologically, sexuality is undifferentiated at birth and that it becomes differentiated as masculine or feminine in the course of various experiences of growing up,' often referred to as the hypothesis of psychosexual neutrality at birth.
95. Ira B. Pauly, Outcome of Sex Reassignment Surgery for Transsexuals, 15 AUSTL. & N.Z. J. PSYCHIATRY 45, 45-46 (1981).
96. A synopsis of the historical classification of transsexualism as an intersex condition is provided in Gurney, supra note 43, at 341-50.
97. "Iatrogenic harm" is harm caused by health care providers, a problem now regarded as "one of the most pressing issues facing the medical and legal professions." Aaron Ilya Kloczko, Book Note, [2002] Mq. L. J. 11 available at http://www.austlii.edu.au/au/journals/MqLJ/2002/11.html (reviewing ALAN MERRY & ALEXANDER MCCALL SMITH, ERRORS, MEDICINE AND THE LAW (Cambridge University Press 2001).
98. Melinda Jones & Lee Ann Basser Marks, Mediating Rights: Children, Parents and the State, 2 AUSTL. J. HUM. RTS. 313, 318 (1996).
99. Id.
100. SIR WILLIAM BLACKSTONE, KNT., COMMENTARIES ON THE LAWS OF ENGLAND 452 (1803).
101. Jones, supra note 87, at 318 n.26.
102. Hewer v. Bryant, [1970] Q.B. 357 at 369 (U.K.).
103. Robert Ludbrook, Children and the Political Process, 2 AUSTL. J. HUM. RTS. 278, 280 (1996).
104. Gillick v. W. Norfolk Area Health Auth. [1986] A.C. 112, at 156 (Austl.).
105. Id.
106. NEW SOUTH WALES LAW REFORM COMMISSION, ISSUES PAPER 24: MINOR'S CONSENT TO MEDICAL TREATMENT, (2004) available at http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip24chp01#H4.
107. Id. at § 1.14.
108. Id. at § 1.15.
109. Id. at § 1.38.
110. Re Marion (1990) 14 Fam. L.R. 427 (Austl.).
111. Id.
112. Id.
113. Id.
114. Id.
115. Id.
116. Marion's Case (1992) 175 C.L.R. 218, 231 (Austl.) [hereinafter Marion's Case].
117. Id.
118. Id. at 230.
119. Id. at 253.
120. Id. at 263.
121. Id. at 262-63.
122. Id. at 232.
123. Id. at 233.
124. Id. at 232.
125. [1986] AC 112.
126. The proposition endorsed by the majority in Gillick was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child's capacities and maturity grow and that this rate of development depends on the individual child. Id. at 237.
127. Id.
128. Id.
129. Id. at 239.
130. Id.
131. Id.
132. Id. at 235.
133. Id. at 240.
134. Id. at 253.
135. Id. at 249.
136. Id. at 250.
137. Id. at 250-52.
138. Not just those who were sterilized, but also those who were subjected to chlitorectomy/penectomy for no other reason than surgeons long ago determined that, in the case of "ambiguity," (i) a male infant with a phallus of stretched length greater than one inch should be designated a male child and less than that, a female; and (ii) a female with an enlarged clitoris should have the organ "reduced" to an aesthetically acceptable size. Likely loss of all sexual sensation was not a consideration.
139. Marion's Case, 175 C.L.R. at 252.
140. Id. at 256.
141. Id. at 259.
142. [1986] 2 SCR, at 407-417.
143. Marion's Case, 175 C.L.R. at 259.
144. Id. at 259. The Appeals Court of the Supreme Court of New South Wales similarly considered that 'where it is lawful for an adult to obtain a medical procedure, it is legitimate for a court in the exercise of it parens patriae jurisdiction to consent on behalf of a child." K v. Minister for Youth & Community Services (1982) 1 N.S.W.L.R. 311 (Austl.).
145. Re Marion (No.2) (1992) 17 Fam. L.R. 336 (Austl.).
146. L. SKENE, LAW & MEDICAL PRACTICE: RIGHTS, DUTIES, CLAIMS & DEFENCES 127-28 (2nd ed., Butterworths 2004).
147. Rogers v. Whitaker (1992) 175 C.L.R. 479 at 490 (Austl.).
148. See Ian Freckleton, The new duty to warn, 24 ALTERNATIVE L.J. 17 (1990) available at http://www.austlii.edu. au/au/journals/AltLJ/1999/ for a more detailed discussion of the impact of Rogers v. Whitaker on medical negligence cases.
149. Marion's Case, 175 C.L.R. at 285 (referencing the Children (Care and Protection) Act 1987 (N.S.W. ACTS), Pt. 5.).
150. P v. P (1994) 181 C.L.R. 583 (Austl.).
151. Id.
152. Id. at 585.
153. Id.
154. Id.
155. Id.
156. Alastair Nicholson et al., The Role of the Family Court in Medical Procedure Cases, 2 AUSTL. J. HUM. RTS. 242, 246 n.25 (1996).
157. Marion's Case, 175 C.L.R. at 259.
158. Nicholson, supra note 145, at 248.
159. Id.
160. Id.
161. Helen Rhoades, Sterilisation, Gender Reassignment and Life Support - Mapping the Welfare Jurisdiction of the Family Court, 10 AUSTL. FAM. LAW. 25, 33 (1994).
162. Id.
163. See generally M. Harrison, De Facto Couples and the Law, 30 FAM. MATTERS 30 (1991).
164. Id. at 31.
165. B v. Minister for Immigration & Multicultural & Indigenous Affairs (2003) 173 F.L.R. 360 (Austl.) [hereinafter B & B #2].
166. Id.
167. Id. at 363. Thus B & B #2 was another in a line of cases that included Re Marion and P v. P, in which it appears Nicholson CJ sought to expand the compass of the Family Court's welfare jurisdiction by very broadly reading the statute of which it was a creation.
168. Id. at 386.
169. Id. at 388.
170. Id. at 423.
171. Id. at 424.
172. Id.
173. Id. at 424 (citing Deane, J. in Marion's Case at 203).
174. Id.
175. AUSTL. L. REFORM COMM'N & THE HUMAN RIGHTS & EQUAL OPPORTUNITY COMM'N, SEEN AND HEARD: PRIORITY FOR CHILDREN IN THE LEGAL PROCESS, 84 AUSTL. L. REFORM COMM'N §4.3 (1997).
176. B & B #2, 173 F.L.R. at 424.
177. Id.
178. Migration Act, 2007, pt. 2, div. 8, §198(1) (Austl.) ("An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.").
179. B & B #2, 173 F.L.R. at 425.
180. Id.
181. Id. at 425-26.
182. Minister for Immigration & Multicultural & Indigenous Affairs v. B [No 2] (2003) 175 F.L.R. 426, (Austl.).
183. Michael Kirby, Detention Without Trial - What are the Limits? Address by Justice Michael Kirby, University of Western Sydney (March 15, 2005), in 24 IT'S TIME E-MAGAZINE, available at http://www.whitlam.org/whitlam/index.php?option=com_wrapper&Itemid=59.
184. John R. Morss, But for the Barriers: Significant Extensions to Children's Capacity, 11 PSYCHIATRY, PSYCHOL. & L. 319, 320 (2004).
185. Id. at 320.
186. In re A (1993) 16 F.L.R. 715, at 715 (Austl.).
187. Id. at 716.
188. Id. at 717.
189. Id.
190. Id.
191. Consistent with respect for "A's" self-identification as male, and with similar decisions of the Family Court, I have referred to "A" as a male throughout the discussion.
192. In re A, 16 F.L.R. at 717-19.
193. Id. at 717.
194. Id. at 718.
195. Id. at 721.
196. Id. at 719.
197. Benjamin, Transvestism, supra note 45, at 110 ("Untreated transsexuals are among the most miserable people I have ever met.").
198. In re A, 16 F.L.R. at 721.
199. Id.
200. The decision and many and various factors leading up to it are discussed extensively by counsel in the case. Wallbank, supra note 6. A number of associated documents, including the pleadings and details of the amicus intervention of the Human Rights and Equal Opportunity Commission are available on Wallbank's website at www.wallbanks.com.
201. Re Kevin (2004) 165 F.L.R. at 476.
202. Id. at 475.
203. Corbett v. Corbett (1971) P. 83, 106.
204. Re Kevin, 165 F.L.R. at 459.
205. Id. at 462.
206. Id. at 462-63.
207. Id. at 463.
208. Att'y Gen. (Cth) v. Kevin (2003) 172 F.L.R. 3000 (Austl.).
209. Id. at 339-40.
210. Id. at 340.
211. Id. at 348.
212. The intersexual nature of transsexualism and current legal predicaments of those who experience it are discussed at length in Gurney, supra note 43.
213. The decision is discussed in broader detail in Eithne Mills, Re Alex: Adolescent Gender Identity Disorder and the Family Court of Australia, 9 DEAKIN L.R. 365 (2004) [hereinafter Mills, Re Alex];
214. Eithne Mills, A Question of Gender: Re Alex, Adolescent Gender Identity Disorder and the Family Court, 79 L. INST. J. 38 (2005).
215. Mills, Re Alex, supra note 202, at 39.
216. Id.
217. Id. at 30-41.
218. Re Alex (2004) 180 F.L.R. at 92.
219. Id.
220. Id. at 93.
221. Id.
222. Id. at 93-94.
223. Id. at 94.
224. Id.
225. Id.
226. Id. at 116.
227. Id.
228. Id. at 118.
229. Id. at 121.
230. Id. at 120-21.
231. Id. at 121.
232. Id. at 121-22.
233. Id. at 122.
234. Id. at 122-23.
235. Id. at 123. This qualification is now incorporated in the definition of a "Medical Procedure Application." FAMILY LAW RULES, Dictionary (amended 2004)(Austrl.).
236. Id. at 123-24.
237. Id. at 131.
238. The title of a UK television comedy in which an Irish Catholic trousermaker and a Jewish jacketmaker try to combine their talents in a West End tailoring partnership. Each required the other's skill but neither really understood what the other was on about as they attempted to cut the cloth according to their client's demands. Never Mind the Quality, Feel the Width (Thames Television 1967).
239. Re A., 16 F.L.R. at 718-19.
240. Id. at 718.
241. For example, the published current policy of the American Academy of Pediatrics concludes that, "[a]lthough newborns with ambiguous genitalia are encountered rarely in a primary care pediatrician's practice, their diagnosis and prompt treatment require urgent medical attention . . . . The psychological distress that families feel during this time should be acknowledged." The policy recommends the establishment of a multi-disciplinary team to expedite surgical reconstruction of the genitalia and establish an appropriate hormone regimen. Committee on Genetics, Section on Endocrinology and Section on Urology, Evaluation of the Newborn with Developmental Anomalies of the External Genitalia, PEDIATRICS 106, 138-42 (2000).
242. Re A., 16 F.L.R. at 718 ("Her request was 'Just make me back into a boy, just like I was when I was born'").
243. Jenni Millbank, When is A Girl A Boy? Re A (a child), 9 AUSTL. J. FAM. L. 173, 173-181 (1995).
244. See, e.g., Sheila Jeffreys, Allowing Alex's Sex Change Shows Up a Gender-Biased Family Court, Online Opinion, Apr. 23, 2004, available at http://www.onlineopinion.com.au/view.asp?article=2162 (last viewed Oct. 22, 2007);
245. Susan Borg, According to Merit: When Being a Girl is Not Enough, 78 L. INST. J. 87 (2004).
246. See David Skidmore, Gender Reassignment Surgery Does Not Help in our Gender-Divided Society, Online Opinion, Apr. 23, 2004, available at http://www.onlineopinion.com.au/view.asp?article=2160 (last viewed Oct. 22, 2007).
247. For responses to the respective articles by Jeffreys, Borg, and Skidmore, see Karen Gurney, It's Important to Remember that Sex and Gender must be Treated Differently, Online Opinion, May 4, 2004, available at http://www.onlineopinion.com.au/view.asp?article=2184 (last viewed Oct. 22, 2007),
248. and Karen Gurney, When Being a Boy is Everything, 79 L. INST. J. 42, 45 (2004).
249. Re Kevin, 165 F.L.R. at 409.
250. In re A, 16 F.L.R. at 718-19 (noting critically that A's current condition is tied to the failure of A's parents to follow through with the treatment plan that the A's doctors recommended at the time of his birth).
251. This figure is anecdotal only and was provided by the AIS Support Group Australia because no truly comprehensive study of outcome satisfaction for infant surgeries has yet been undertaken. It is apparent, however, that while the incidence of "wrong assignments" varies substantially depending on the nature of the particular intersex condition, for those affected it is vitally significant. It has been reported to be as high as 23% in XY individuals with hypospadias. Migeon et al., supra note 19. In another study, of fourteen XY individuals with cloacal exstrophy assigned as female shortly after birth, only five were living as females in adulthood. William G. Reiner & John P. Gearhart, Discordant Sexual Identity in Some Genetic Males with Cloacal Exstrophy Assigned to Female Sex at Birth, 350 NEW ENG. J. MED. 333, 336 (2004). And more than 13% of XX females with CAH assigned as females in infancy developed a gender identity disorder, 2% being of transsexual type. Slijper et al., supra note 78, at 125.
252. Excellent summaries of the Re Kevin decisions at first instance and on appeal are provided in Eithne Mills & James McConvill, The Case of Kevin and Jennifer - Transsexual Marriage in Australia, 76 L. INST. J. 69 (2002),
253. and in Eithne Mills & James McConvill, The Right of Transsexuals to Marry in Australia Confirmed, 77 L. INST. J. 58 (2003).
254. Re Kevin, 165 F.L.R. at 458-9, 462-63, 472-73.
255. For a more detailed account of the future ramifications of the case of Re Kevin for the common law, see Wallbank, supra note 6.
256. Marion's Case, 175 C.L.R. 218 at 252.
257. Id. at 251.
258. See KESSLER, supra note 57, at 14, 135 n.7.
259. See Migeon et al., supra note 19, at 7; Reiner & Gearhart, supra note 237, at 336; Slijper et al., supra note 78, at 125.
260. FAMILY COURT OF AUSTRALIA, A QUESTION OF RIGHT TREATMENT: THE FAMILY COURT AND SPECIAL MEDICAL PROCEDURES FOR CHILDREN 9 (1998).
261. Re Kevin, 165 F.L.R. at 458-59.
262. Attorney-General (Cth) v. Kevin, 172 F.L.R. at 366.
263. Id. at 340.
264. Id. at 347-48, 354.
265. Re Alex, 180 F.L.R. at 123, compare Re Kevin, 165 F.L.R. at 414 (finding no evidence of any psychological disorder nor anything in Kevin's socialisation that could have been said to inordinately masculinise his outlook).
266. Rachel Wallbank, Re Alex Through a Looking Glass, AUSTL. CHILD. RTS. NEWS, May 2004, at 28.
267. Re Alex, 180 F.L.R. at 123
268. Id. at 105.
269. Marion's Case, 175 C.L.R. at 251.
270. A long-time consultant to, and former director of, the Monash Clinic, with nearly forty years of professional experience with the transsexual condition, the late Dr Herbert Bower was very critical of the decision to conflate the two disparate conditions under the one classification in the DSM IV and foresaw the many difficulties it would create for diagnosis and understanding of the condition. See Herbert Bower, The Gender Identity Disorder in the DSM-IV Classification: A Critical Evaluation, 35 AUSTL. & N. Z. J. PSYCHIATRY 1 (2001).
271. Katherine K. Wilson, Gender as an Illness: Issues of Psychiatric Classification, in TAKING SIDES: CLASHING VIEWS ON CONTROVERSIAL ISSUES IN SEX AND GENDER 57-65 (Elizabeth L. Paul ed., McGraw-Hill 2002).
272. Patricia P. Miach, Utility of the MMPI-2 in Assessing Gender Dysphoric Patients, J. PERSONALITY ASSESSMENT 268 (2000).
273. Brief of Amicus Curiae, Harry Benjamin International Gender Dysphoria Ass'n, Inc. at 12, De'Lonta v. Angelone, No. 99-00642 (W.D. Va. 1999).
274. Department for Constitutional Affairs, Government Policy Concerning Transsexual People, available at http://www.dca.gov.uk/constitution/ transsex/policy.htm.
275. Gender Identity Research & Education Society, Definition and Synopsis of the Etiology of Adult Gender Identity Disorder and Transsexualism, 2003, available at http://www.gires.org.uk/ Text_Assets/Etiology_Definition.pdf.
276. Peggy Cohen-Kettenis & Stephanie H.M. van Goozen, Sex Reassignment of Adolescent Transsexuals: A Follow-Up Study, 36 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 263 (1997).
277. Re Alex, 180 F.L.R. at 96.
278. See generally Cohen-Kettenis, supra note 261.
279. Id. at 262-71.
280. Id.
281. Yolanda Smith et al., Adolescents with Gender Identity Disorder who were Accepted or Rejected for Sex Reassignment Surgery: A Prospective Follow-up Study, 40 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 472, 472-78 (2001).
282. Sally Nicholes et al., Special Medical Procedures and Medical Practitioners, Apr. 21, 2005 Law Institute Victoria 5.
283. Id.
284. Re Alex, 180 F.L.R. at 123.
285. Id.
286. Wallbank, supra note 6, at 488.
287. Peggy Cohen-Kettenis & Stephanie H.M. van Goozen, Pubertal Delay as an Aid in Diagnosis and Treatment of a Transsexual Adolescent, 7 EUR. CHILD & ADOLESCENT PSYCHIATRY 246, 247 (1998).
288. Id. at 246.
289. Rachael Wallbank, counsel in the Re Kevin case, reported that the New South Wales Department of Health, acting on legal advice, acted to deny and suspend the provision of medical treatment for transsexualism in childhood and adolescence in NSW which had been approved prior to the Re Alex decision. Rachael Wallbank, Contemporary Human Rights Issues for People with Transsexualism, Address Before the Gender Conference (Sept. 2004).
290. An urgent application to the Family Court on behalf of a child was made in this respect several months ago and is yet to be determined. Wallbank, supra note 251, at 35; Interview with Rachael Wallbank, Accredited Specialist (Family Law) LSNSW.
291. Re Alex, 180 F.L.R. at 116.
292. Marion's Case, 175 C.L.R. at 232.
293. Id. at 268.
294. Re Alex, 180 F.L.R. at 120
295. Id. at 116-18.
296. For an explanation of the role of female hormones in breast development, see Breast Development and Anatomy, http://www.zoladex.net/zoladexBC/ 10010_11160_3_3_1.aspx (last visited Nov. 15, 2007).
297. Re Alex, 180 F.L.R. at 116.
298. Id. at 90.
299. Id. at 93.
300. Id. at 107.
301. Marion's Case, 175 C.L.R. at 269.
302. Merle Spriggs, Ethics and the Proposed Treatment of a 13-Year-Old with Atypical Gender Identity, 181 MED. J. AUSTL. 319, 320 (2004).
303. THE ROYAL COLLEGE OF PSYCHIATRISTS, GENDER IDENTITY DISORDERS IN CHILDREN AND ADOLESCENTS, COUNCIL REPORT CR63, at 4 (1998).