A child's fertility pact
A court hearing is told of an unusual response to the risk of sterilisation by gender medicine
A primary school-age girl, Isla1, offered one of her eggs for future harvest so that her elder sister, Mia, who identifies as a boy, could one day have a child if she is sterilised by transgender hormone treatment, a court in Australia has heard.
“It’s like a pact between them,” the court was told by parent A2, who supports their eldest daughter’s wish for puberty blockers and testosterone; Mia has also expressed a wish to undergo “every surgery available.”
The Federal Circuit and Family Court this week has been hearing a case in which the separated parents—whose personal characteristics have been suppressed by order of Justice Peter Tree—disagree on whether “gender-affirming” medical treatment or mental health intervention should be the focus in serving the best interests of the gender-diverse sisters.
Parent A, who lives with the daughters, seeks an order for sole parental responsibility, which would enable Mia, who had begun high school at the time of the fertility pact, to continue down a path towards hormonal interventions with irreversible effects including a risk of permanent infertility.
Parent B, who regards Mia’s trans identification as a phase and favours a child’s acceptance of the body over gender medicalisation, is seeking shared responsibility and orders stopping the pursuit of hormonal treatment.
One point of dispute was the priority given by Parent A to gender clinic appointments and an endocrinology referral for the younger girl, Isla, who had a history of self-harm, rather than persisting with attempts to persuade her to engage with Child and Adolescent Mental Health Services (CAMHS).
Parent A said they thought the gender clinic was “a full-service provider” which would give Isla whatever help she needed, but the girl had simply refused to talk to CAMHS.
The case involves questions of parental separation and influence, social contagion, feelings of loss and grief among other family stressors, depression, anxiety, suicidal ideation, school refusal, bullying and allegations of abuse.
A barrister for parent B, who opposes gender medical treatment for either minor, asked parent A if the sisters’ fertility pact, formed a few years ago, had placed “a tremendous amount of responsibility” on Isla’s shoulders.
Parent A said they could not “control” what the sisters themselves decided, and it would not have been “kind” to tell Mia that this arrangement was completely inappropriate.
Parent A also said they had told Mia, who had begun to menstruate, that they preferred she had her own eggs frozen if there were to be an intervention to preserve fertility.
Parent A disagreed with the barrister’s suggestion that their failure to countermand the fertility pact showed that the best interests of Isla had not been kept foremost in mind.
Parent A said that last year Isla, by then in high school, had even offered to carry a future baby for her big sister, although Parent A told the court they “thought that was a little bit much.”
Test case?
The court heard there were reports from several expert witnesses divided over the best therapeutic response to what is presented by minors as gender distress but comes with serious, often pre-existing mental health disorders.
This is a relatively new challenge for judges, following a series of well-publicised but one-sided cases from re Jamie in 2013 to re Kelvin in 2017, in which the then Family Court accepted the claim by the gender clinic of the Royal Children’s Hospital (RCH) Melbourne that the judges could safely cut back their oversight of treatment decisions for minors on the grounds that the science of gender dysphoria had made advances.
On Monday, Justice Tree was told by parent B’s barrister that, “The landscape has completely changed since re Kelvin, in terms of medical evidence.”
The barrister suggested that some issues in this week’s case—which include the lawfulness of gender medical treatment and the question of a minor’s capacity to consent—might have to be decided by a panel of judges sitting as a full court.
Internationally, there has been intense debate about an unprecedented surge in teenagers, chiefly girls, rejecting their birth sex, and seeking hormonal and surgical interventions. There is an emerging group of young adult “detransitioners” who regret irreversible gender medicine.
In some European countries, there has been a shift away from the medicalised gender-affirming model encoded in treatment guidelines such as those of the World Professional Association for Transgender Health (WPATH).
‘Forced’ to discuss fertility
During this week’s hearing, parent B’s barrister said the fact that the girls had been discussing fertility suggested that Mia was seriously considering the future possibility of childbearing.
However, parent A said Mia had consistently identified as a boy for some years, insisted she did not wish to have her own children, and spoke about the fertility issue because clinicians “forced” her to.
(Fertility counselling is offered to trans-identifying minors as young as age 10 before puberty blockers are given to suppress unwanted sexual development; international data suggests the vast majority of children started on blockers will proceed to cross-sex hormones, creating a risk of sterilisation.)
In court, the barrister for parent B cited a health professional report noting the need to monitor “ASD traits” in Mia, and asked Parent A if the girl had ever been assessed for autism syndrome disorder.
“No, it’s never been brought up to the point where he needs to be assessed,” parent A said.
Barrister: “Do you think that [Mia] has ASD traits?”
Parent A: “I’m not qualified to say—he would need full diagnostic assessment.”
In the cross-examination, it was put to parent A that they had expressed the wish for Mia to go through male puberty at the same time as male peers.
Barrister: “You could not have been sufficiently informed about the effects of testosterone [drugs on a female body], because testosterone [treatment] does not cause male puberty, does it?”
Parent A conceded this treatment would not induce male puberty for Mia—“not in terms of [creating] testes and the penis”—but said this treatment would masculinise Mia’s appearance such that others looking at her would think she had gone through male puberty.
Barrister: “Have you told [Mia that she] will not experience male puberty?”
Parent A: “I don’t think so,” adding that they preferred to focus on positives.
The barrister asked parent A about their views on “top surgery”—a double mastectomy—and in response they said they thought Mia would have to be at least age 18 and raise the funds herself.
The barrister asked if this surgery would have “irreversible consequences”. Parent A replied: “Yes, he would not have breasts.”
Parent A conceded that treatment regret and reversion to birth sex were risks for people at large but “not for my son.”
Later in the hearing, parent B confirmed under cross-examination that they were still worried about the psychological wellbeing of the girls in parent A’s care, noting a concern that the sisters would be “saturated in ideas” about sexual orientation and gender identity.
Parent B claimed the girls had been “body shamed” for their female anatomy, and that Mia’s entry into puberty and development towards womanhood had not been embraced by Parent A.
Parent B agreed it was their own view that Mia had to find a way to live with her body, even if she were diagnosed with the distress of gender dysphoria.
The barrister for parent A suggested to parent B that their failure to read the entire report of a gender-affirming expert witness sat oddly with the gravity of the issues facing the children. Parent B said some of the information in the report was “a bit overwhelming.”
The hearing continues.
Pseudonyms are used throughout. Reporting of this case is subject to suppression orders intended to protect the identity of the children. Comments have been closed.
Each parent has been assigned the pronoun “they” to mask their sex/gender.