Hostname: page-component-586b7cd67f-rdxmf Total loading time: 0 Render date: 2024-11-30T15:13:29.493Z Has data issue: false hasContentIssue false
  • English
  • Français

Sex and the Surgeon's Knife: The Family Court's Dilemma … Informed Consent and the Specter of Iatrogenic Harm to Children with Intersex Characteristics

Published online by Cambridge University Press:  06 January 2021

Karen Gurney
Get access Rights & Permissions [Opens in a new window]

Extract

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean, neither more nor less.”

”The question is,” said Alice, “whether you can make words mean so many different things.”

”The question is,” said Humpty Dumpty, “which is to be master - that's all.”

—Lewis Carroll

“Sex” is a complex thing. The word conjures up many images according to how it is used. When narrowed to the context of the law, however, a person’s sex can be broken down into three primary categories: biological sex, common law sex, and legal sex.

Biological sex has traditionally been determined according to the presence or absence of genitals and gonads (phenotype), and the configuration of the sex chromosomes (karyotype).

Type
Article
Information
American Journal of Law & Medicine , Volume 33 , Issue 4 , December 2007 , pp. 625 - 661
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

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 Wallbank, Rachael, Re Kevin in Perspective, 9 Deakin l. Rev. 461, 467-468 (2004)Google Scholar.

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 Greenberg, Julie A., Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265, 266 (1999)Google Scholar.

10 Josso & Rey, supra note 8.

11 See, e.g., Allen, Laura S. & Gorski, Roger A., Sexual Dimorphism of the Anterior Commissure and Massa Intermedia of the Human Brain, 312 J. Comp. Neurology 97 (1991)CrossRefGoogle ScholarPubMed; Carruth, Laura L. et al., Sex Chromosome Genes Directly Affect Brain Sex Differentiation, 5 Nature Neuroscience 933 (2002)CrossRefGoogle Scholar; Carina Dennis, The Most Important Sexual Organ, Nature, Jan. 29, 2004, at 390; Kruijver, Frank P. M. et al., Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. Clinical Endocrinology & Metabolism 2034 (2000)CrossRefGoogle Scholar; Swaab, Dick F. et al., Sexual Differentiation of the Human Hypothalamus, 511 Advanced Experimental Medical Biology 75 (2002)CrossRefGoogle ScholarPubMed; Jiang-Ning Zhou et al., A Sex Difference in the Human Brain and its Relation to Transsexuality, Nature, Nov. 2, 1995, at 68.

12 Anne Fausto-Sterling, The Five Sexes, Revisited, The Sciences, July-August 2000, at 20.

13 The Macquarie Dictionary, (Arthur Delbridge et al. eds., 2nd ed. 1992); Stedman’s Medical Dictionary, (Thomas L. Stedman ed., 24th ed. 1984).

14 Morel, Yves et al., Aetiological Diagnosis of Male Sex Ambiguity: A Collaborative Study, 161 Eur. J. Pediatrics 49, 57 (2002)CrossRefGoogle ScholarPubMed.

15 Blackless, Melanie et al., How Sexually Dimorphic Are We? Review and Synthesis, 12 Am. J. Hum. Biology 151, 152 (2000)3.0.CO;2-F>CrossRefGoogle ScholarPubMed.

16 Id. at 159.

17 Fausto-Sterling, supra note 12, at 20.

18 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.”

19 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).

20 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.

21 Wiener, John S., Insights Into Causes of Sexual Ambiguity, 9 Current Opinion in Urology 507 (1999)CrossRefGoogle ScholarPubMed.

22 Sax, Leonard, How Common is Intersex? A Response to Anne Fausto-Sterling, 39 J. Sex Res. 174, 175 (2000)Google Scholar.

23 Id.

24 Id.

25 Id. at 175-76.

26 Meyer-Bahlurg, H. F. L., What Causes Low Rates of Child-Bearing in Congenital Adrenal Hyperplasia?, 84 J. Clinical Endocrinology & Metabolism 1844, 1844 (1999)CrossRefGoogle Scholar.

27 Sax, supra note 22, at 175.

28 Blackless et al., supra note 15, at 157.

29 See Meyer-Bahlurg, supra note 26.

30 Blackless et al., supra note 15, at 161. 31 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).

32 Id. at 176.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 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).

39 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., Diamond, Milton, Sex and Gender are Different: Sexual Identity and Gender Identity are Different, 7 Clinical Child Psychol.& Psychiatry 320 (2002)CrossRefGoogle Scholar.

40 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. Hirschfeld, Magnus, Die Intersexuelle Konstitution, 23 Jahrbuch Für Sexuelle Zwischenstufen 3 (1923)Google Scholar.

41 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).

42 See Zhou et al., supra note 11, at 68;, Kruijver et al., supra note 11, at 2039.

43 For a detailed discussion of the intersexual nature of transsexualism and its historical inclusion in the intersex nosology, See Gurney, Karen, Twisting the Knife – Discrimination in the Law, 9 Deakin L. Rev. 339, 341-50 (2004)Google Scholar.

44 Greenberg, supra note 9, at 278-92.

45 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. Benjamin, Harry, Transvestism and Transsexualism, 3 Journal of Sex Research 107 (1953)CrossRefGoogle Scholar [hereinafter Benjamin, Transvestism]; Harry Benjamin, The Transsexual Phenomenon (The Julian Press, Inc., 1966) [hereinafter Benjamin, Transsexual Phenomenon]

46 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.

47 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.

48 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.).

49 See Benjamin, Transsexual Phenomenon, supra note 44.

50 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).

51 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).

52 A test devised by Edwin Klebs in 1876 during a period sometimes irreverently described as “the Age of the Gonads.” Wisniewski, Amy B., Hermaphrodites and the Medical Invention of Sex, 189 J. Nervous & Mental Disease 197, 197-198 (2001)CrossRefGoogle Scholar.

53 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.

54 Greenberg, Julie, Legal Aspects of Gender Reassignment, 13 The Endocrinologist 277, 277 (2003)CrossRefGoogle Scholar (citing Dreger, Alice Domurat, A History of Intersexuality: From the Age of Gonads to the Age of Consent, 9 J. Clinical Ethics 345, 345-48 (1998)Google ScholarPubMed).

55 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”).

56 Holmes, Morgan, Rethinking the Meaning and Management of Intersexuality, 5 Sexualities 159, 169 (2002)CrossRefGoogle Scholar.

57 Suzanne Kessler, Lessons from the Intersexed 55 (Rutgers University Press, 1998).

58 See, e.g., Ellis, Albert, The Sexual Psychology of Human Hermaphrodites, 7 Psychosomatic Medicine 108 (1945)CrossRefGoogle Scholar.

59 See, e.g., Money, John et al., An Examination of Some Basic Sexual Concepts: The Evidence of Human Hermaphroditism, 97 Bulletin Johns Hopkins Hospital 301 (1955)Google ScholarPubMed.

60 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.”).

61 Money, John et al., Hermaphroditism: Recommendations Concerning Assignment of Sex, Change of Sex, and Psychologic Management, 97 Bulletin Johns Hopkins Hospital 284 (1955)Google ScholarPubMed [hereinafter Money et al., Hermaphroditism].

62 Id. at 285.

63 Hippocrates, 2 Decorum para. XVI, in 2 Hippocrates 297, (W.H.S. Jones trans., Harvard University Press 1959) (1923) cited in Kurtz, Sheldon F., The Law of Informed Consent: from Doctor is Right to ‘Patient has Rights’, 50 Syracuse L. Rev. 1243, 1243 (2001)Google Scholar.

64 Hester, J. David, Intersexes and Informed Consent: How Physicians’ Rhetoric Constrains Choice, 25 Theoretical Med. 21, 26 (2004)Google Scholar.

65 Lareau, Alyssa, Who Decides? Genital-Normalising Surgery on Intersexed Infants, 92 Geo L.J. 129, 151 (2004)Google Scholar.

66 Hester, supra note 64, at 24.

67 Id.

68 Money et al., Hermaphroditism, supra note 61, at 288-90.

69 Hester, supra note 64, at 26.

70 Id. at 25.

71 Id. at 26.

72 Hendricks, M., Is it a Boy or a Girl?, 11 Johns Hopkins Mag. 10, 15 (1993)Google Scholar.

73 Greenberg, supra note 53, at 277.

74 Dreger, supra note 46 at 28.

75 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.

76 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); Money, John, Ablatio Penis: Normal Male Infant Sex- Reassignment as a Girl, 4 Archives Sexual Behav. 65, 66 (1975)CrossRefGoogle Scholar.

77 See Beh, Hanzel G. & Diamond, Milton, An Emerging Ethical and Medical Dilemma: Should Physicians Pperform Sex Assignment Surgery on Infants with Ambiguous Genitalia?, 7 Mich. J. Gender & L. 1 (2000)Google Scholar.

78 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. Slijper, Froukje M. E. et al., Long-Term Psychological Evaluation of Intersex Children, 27 Archives Sexual Behav. 125, 125 (1998)CrossRefGoogle ScholarPubMed. 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.

79 Harry Benjamin International Gender Dysphoria Association (HBIGDA).

80 Benjamin, Transvestism, supra note 45, at 13.

81 Benjamin, Transsexual Phenomenon, supra note 45.

82 Diamond, Milton, Sex and Gender: Same or Different?, 10 Feminism & Psychol. 46 (2000)CrossRefGoogle Scholar.

83 See, e.g., Meyer-Bahlburg, Heino F.L., Gender Assignment and Reassignment in 46,XY Pseudohermaphroditism and Related Conditions, 84 J. Clinical Endocrinology & Metabolism 3455, 3455 (1999)CrossRefGoogle ScholarPubMed. 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.

84 Pauly, Ira B., Outcome of Sex Reassignment Surgery for Transsexuals, 15 Austl. & N.Z. J. Psychiatry 45, 45-46 (1981)CrossRefGoogle ScholarPubMed.

85 A synopsis of the historical classification of transsexualism as an intersex condition is provided in Gurney, supra note 43, at 341-50.

86 “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).

87 Jones, Melinda & Marks, Lee Ann Basser, Mediating Rights: Children, Parents and the State, 2 Austl. J. Hum. Rts. 313, 318 (1996)Google Scholar.

88 Id.

89 Sir William Blackstone, Knt., Commentaries on the Laws of England 452 (1803).

90 Jones, supra note 87, at 318 n.26.

91 Hewer v. Bryant, [1970] Q.B. 357 at 369 (U.K.).

92 Ludbrook, Robert, Children and the Political Process, 2 Austl. J. Hum. Rts. 278, 280 (1996)Google Scholar.

93 Gillick v. W. Norfolk Area Health Auth. [1986] A.C. 112, at 156 (Austl.).

94 Id.

95 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.ns f/pages/ip24chp01#H4.

96 Id. at § 1.14.

97 Id. at § 1.15.

98 Id. at § 1.38.

99 Re Marion (1990) 14 Fam. L.R. 427 (Austl.).

100 Id.

101 Id.

102 Id.

103 Id.

104 Id.

105 Marion’s Case (1992) 175 C.L.R. 218, 231 (Austl.) [hereinafter Marion’s Case].

106 Id.

107 Id. at 230.

108 Id. at 253.

109 Id. at 263.

110 Id. at 262-63.

111 Id. at 232.

112 Id. at 233.

113 Id. at 232.

114 [1986] AC 112.

115 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.

116 Id.

117 Id.

118 Id. at 239.

119 Id.

120 Id.

121 Id. at 235.

122 Id. at 240.

123 Id. at 253.

124 Id. at 249.

125 Id. at 250.

126 Id. at 250-52.

127 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.

128 Marion’s Case, 175 C.L.R. at 252.

129 Id. at 256.

130 Id. at 259.

131 [1986] 2 SCR, at 407-417.

132 Marion’s Case, 175 C.L.R. at 259.

133 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.).

134 Re Marion (No.2) (1992) 17 Fam. L.R. 336 (Austl.).

135 L. Skene, Law & Medical Practice: Rights, Duties, Claims & Defences 127-28 (2nd ed., Butterworths 2004).

136 Rogers v. Whitaker (1992) 175 C.L.R. 479 at 490 (Austl.).

137 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.

138 Marion’s Case, 175 C.L.R. at 285 (referencing the Children (Care and Protection) Act 1987 (N.S.W. Acts), Pt. 5.).

139 P v. P (1994) 181 C.L.R. 583 (Austl.).

140 Id.

141 Id. at 585.

142 Id.

143 Id.

144 Id.

145 Alastair Nicholson et al., The Role of the Family Court in Medical Procedure Cases, 2 Austl. J. Hum. Rts. 242, 246 n.25 (1996).

146 Marion’s Case, 175 C.L.R. at 259.

147 Nicholson, supra note 145, at 248.

148 Id.

149 Id.

150 Rhoades, Helen, Sterilisation, Gender Reassignment and Life Support – Mapping the Welfare Jurisdiction of the Family Court, 10 Austl. Fam. Law. 25, 33 (1994)Google Scholar.

151 Id.

152 See Harrison, generally M., De Facto Couples and the Law, 30 Fam. Matters 30 (1991)Google Scholar.

153 Id. at 31.

154 B v. Minister for Immigration & Multicultural & Indigenous Affairs (2003) 173 F.L.R. 360 (Austl.) [hereinafter B & B #2].

155 Id.

156 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.

157 Id. at 386.

158 Id. at 388.

159 Id. at 423.

160 Id. at 424.

161 Id.

162 Id. at 424 (citing Deane, J. in Marion’s Case at 203).

163 Id.

164 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).

165 B & B #2, 173 F.L.R. at 424.

166 Id.

167 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.”).

168 B & B #2, 173 F.L.R. at 425.

169 Id.

170 Id. at 425-26.

171 Minister for Immigration & Multicultural & Indigenous Affairs v. B [No 2] (2003) 175 F.L.R. 426, (Austl.).

172 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.

173 Morss, John R., But for the Barriers: Significant Extensions to Children’s Capacity, 11 Psychiatry, Psychol. & L. 319, 320 (2004)Google Scholar.

174 Id. at 320.

175 In re A (1993) 16 F.L.R. 715, at 715 (Austl.).

176 Id. at 716.

177 Id. at 717.

178 Id.

179 Id.

180 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.

181 In re A, 16 F.L.R. at 717-19.

182 Id. at 717.

183 Id. at 718.

184 Id. at 721.

185 Id. at 719.

186 Benjamin, Transvestism, supra note 45, at 110 (“Untreated transsexuals are among the most miserable people I have ever met.”).

187 In re A, 16 F.L.R. at 721.

188 Id.

189 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.

190 Re Kevin (2004) 165 F.L.R. at 476.

191 Id. at 475.

192 Corbett v. Corbett (1971) P. 83, 106.

193 Re Kevin, 165 F.L.R. at 459.

194 Id. at 462.

195 Id. at 462-63.

196 Id. at 463.

197 Att’y Gen. (Cth) v. Kevin (2003) 172 F.L.R. 3000 (Austl.).

198 Id. at 339-40.

199 Id. at 340.

200 Id. at 348.

201 The intersexual nature of transsexualism and current legal predicaments of those who experience it are discussed at length in Gurney, supra note 43.

202 The decision is discussed in broader detail in Mills, Eithne, Re Alex: Adolescent Gender Identity Disorder and the Family Court of Australia, 9 Deakin L.R. 365 (2004)Google Scholar [hereinafter Mills, Re Alex]; Mills, Eithne, A Question of Gender: Re Alex, Adolescent Gender Identity Disorder and the Family Court, 79 L. Inst. J. 38 (2005)Google Scholar.

203 Mills, Re Alex, supra note 202, at 39.

204 Id.

205 Id. at 30-41.

206 Re Alex (2004) 180 F.L.R. at 92.

207 Id.

208 Id. at 93.

209 Id.

210 Id. at 93-94.

211 Id. at 94.

212 Id.

213 Id.

214 Id. at 116.

215 Id.

216 Id. at 118.

217 Id. at 121.

218 Id. at 120-21.

219 Id. at 121.

220 Id. at 121-22.

221 Id. at 122.

222 Id. at 122-23.

223 Id. at 123. This qualification is now incorporated in the definition of a “Medical Procedure Application.” Family Law Rules, Dictionary (amended 2004)(Austrl.).

224 Id. at 123-24.

225 Id. at 131.

226 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).

227 Re A., 16 F.L.R. at 718-19.

228 Id. at 718.

229 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).

230 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’”).

231 Jenni Millbank, When is A Girl A Boy? Re A (a child), 9 Austl. J. Fam. L. 173, 173- 181 (1995).

232 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); Susan Borg, According to Merit: When Being a Girl is Not Enough, 78 L. Inst. J. 87 (2004).

233 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).

234 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), and Gurney, Karen, When Being a Boy is Everything, 79 L. Inst. J. 42, 45 (2004)Google Scholar.

235 Re Kevin, 165 F.L.R. at 409.

236 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).

237 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. Reiner, William G. & Gearhart, John P., Discordant Sexual Identity in Some Genetic Males with Cloacal Exstrophy Assigned to Female Sex at Birth, 350 New Eng. J. Med. 333, 336 (2004)CrossRefGoogle ScholarPubMed. 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.

238 Excellent summaries of the Re Kevin decisions at first instance and on appeal are provided in Mills, Eithne & McConvill, James, The Case of Kevin and Jennifer – Transsexual Marriage in Australia, 76 L. Inst. J. 69 (2002)Google Scholar, and in Mills, Eithne & McConvill, James, The Right of Transsexuals to Marry in Australia Confirmed, 77 L. Inst. J. 58 (2003)Google Scholar. 239 Re Kevin, 165 F.L.R. at 458-9, 462-63, 472-73.

240 For a more detailed account of the future ramifications of the case of Re Kevin for the common law, See Wallbank, supra note 6.

241 Marion’s Case, 175 C.L.R. 218 at 252.

242 Id. at 251.

243 See Kessler, supra note 57, at 14, 135 n.7.

244 See Migeon et al., supra note 19, at 7; Reiner & Gearhart, supra note 237, at 336; Slijper et al., supra note 78, at 125.

245 Family Court of Australia, A Question of Right Treatment: The Family Court and Special Medical Procedures for Children 9 (1998).

246 Re Kevin, 165 F.L.R. at 458-59.

247 Attorney-General (Cth) v. Kevin, 172 F.L.R. at 366.

248 Id. at 340.

249 Id. at 347-48, 354.

250 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).

251 Rachel Wallbank, Re Alex Through a Looking Glass, Austl. Child. Rts. News, May 2004, at 28.

252 Re Alex, 180 F.L.R. at 123

253 Id. at 105.

254 Marion’s Case, 175 C.L.R. at 251.

255 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 Bower, Herbert, The Gender Identity Disorder in the DSM-IV Classification: A Critical Evaluation, 35 Austl. & N. Z. J. Psychiatry 1 (2001)CrossRefGoogle ScholarPubMed.

256 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).

257 Patricia P. Miach, Utility of the MMPI-2 in Assessing Gender Dysphoric Patients, J. Personality Assessment 268 (2000).

258 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).

259 Department for Constitutional Affairs, Government Policy Concerning Transsexual People, available at http://www.dca.gov.uk/constitution/transsex/policy.htm.

260 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.

261 Cohen-Kettenis, Peggy & van Goozen, Stephanie H.M., Sex Reassignment of Adolescent Transsexuals: A Follow-Up Study, 36 J. Am. Acad. Child & Adolescent Psychiatry 263 (1997)CrossRefGoogle ScholarPubMed.

262 Re Alex, 180 F.L.R. at 96.

263 See generally Cohen-Kettenis, supra note 261.

264 Id. at 262-71.

265 Id.

266 Smith, Yolanda 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)CrossRefGoogle ScholarPubMed.

267 Sally Nicholes et al., Special Medical Procedures and Medical Practitioners, Apr. 21, 2005 Law Institute Victoria 5.

268 Id.

269 Re Alex, 180 F.L.R. at 123.

270 Id.

271 Wallbank, supra note 6, at 488.

272 Cohen-Kettenis, Peggy & van Goozen, Stephanie H.M., Pubertal Delay as an Aid in Diagnosis and Treatment of a Transsexual Adolescent, 7 Eur. Child & Adolescent Psychiatry 246, 247 (1998)CrossRefGoogle ScholarPubMed.

273 Id. at 246.

274 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). 275 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.

276 Re Alex, 180 F.L.R. at 116.

277 Marion’s Case, 175 C.L.R. at 232.

278 Id. at 268.

279 Re Alex, 180 F.L.R. at 120

280 Id. at 116-18.

281 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).

282 Re Alex, 180 F.L.R. at 116.

283 Id. at 90.

284 Id. at 93.

285 Id. at 107.

286 Marion’s Case, 175 C.L.R. at 269.

287 Spriggs, Merle, Ethics and the Proposed Treatment of a 13-Year-Old with Atypical Gender Identity, 181 Med. J. Austl. 319, 320 (2004)Google ScholarPubMed.

288 The Royal College of Psychiatrists, Gender Identity Disorders in Children and Adolescents, Council Report CR63, at 4 (1998).