The Family Court case Re: Lesley (Special Medical Procedure) [2008] FamCA 1226

This 2008 case before the Family Court of Australia saw a request for confirmation of sterilisation associated with a changed sex of rearing in a 4-year old. The case is entitled, Re: Lesley (Special Medical Procedure) [2008] FamCA 1226.

The judge in the case reports at length on affidavits supplied by the paediatric surgeons and endocrinologists involved in the case, including:

25. Dr Y referred Lesley to Dr Z and his first examination was in March 2006, the child would have been two years of age at that time. He says:
“The diagnosis for [Lesley] was still evolving. I was seeking an understanding of gender identity for [Lesley] given the emerging diagnosis of 17-β/HSD deficiency. In some children with this order there is testosterone present in childhood and in such a case it would be possible to rear the child as a male and allow later virilisation to occur. However, in [Lesley’s] case her presentation demonstrates she has a complete block in the expression of testosterone within the testes and this reinforces as correct the initial decision to rear [Lesley] as a girl.”

26. Under the heading “Genetic Testing and Confirmation of Diagnosis” at paragraph 15 the doctor opines:
“The 17-β/HSD gene regulates the production of testosterone. The mutation of the gene causes defective production of testosterone, particularly in utero. This is why [Lesley] was born with a vagina and labia and physical appearance of a female.”

27. Paragraphs 17 and 18:
“This [future pubertal] process will be effective to produce enough testosterone to cause the virilisation resulting in the development of very severe acne, voice changes, cliteromegaly, excessive facial hair and body hair and a masculine body habitas.”

28. It is not known when those changes would occur is a factor which weighs heavily in favour of making an early determination in this matter. The likelihood is she will identify as a female for the future…

29. Paragraph 18:
“Additionally, because the gonads in [Lesley] are in the wrong place there is an increased risk that cancer will develop. This risk is caused by the testes being in a different temperature environment.”
Counsel has informed me that the risk is as high as 28 per cent, which is a further important factor to be taken into consideration. [1]

The risk factor quoted appears to be maximised, the top end of a range, in order to justify an assertion that gonads should be removed in the short term. The Chief Justice notes in her submission to the Senate inquiry on involuntary or coerced sterilisation that:

In all three cases, a by-product of the surgery was to render the child infertile (although in Re: Lesley the trial judge found that the child was already incapable of having children).[2]

Anne Tamar-Mattis reports that rationales for sterilisation are often based on weak evidence, and the fertility of intersex people is not valued in the same way that the fertility of other people is valued:

Indeed, some providers may not think of the procedures they are performing as sterilizations when the child’s capacity for fertility does not match the gender assignment. For example, if the child is assigned female, especially if she is older and seems content with that assignment, it may not occur to her doctor or her parents that she would have any use for testes. However, if she has testes that could produce viable sperm (or might gain that capacity through future medical advances), this may be her only route to biological parenthood. In such a situation, there may be difficult choices to make at puberty involving weighing the risk of cancer and certainty of developing facial hair and other masculinized features against the potential for fertility. However, making these choices prematurely limits the child’s exercise of reproductive freedom as surely as if the child had a more “typical” body.[3]

Indeed, in the public hearing on Tuesday 11 December, the Senate Inquiry heard from Professor Glover of the Melbourne Royal Children’s Hospital, that the gonads of intersex people are either “non-functioning” or “carry a significant malignancy risk”, a lose-lose scenario:

Prof. Grover: … Returning to intersex or what are otherwise known as disorders of sex development, gonads are removed but those gonads are non-functioning gonads or carry a significant malignancy risk. If we see somebody who is female who has non-functioning gonads—no hormone producing capacity, no sperm capacity, no egg capacity—but who carries a 30 per cent risk of malignancy, we think those structures are better out than in.
Senator MOORE: That would clearly be therapeutic.

Prof. Grover: Yes, that would be therapeutic. But unfortunately the definition, the issue of what is therapeutic and non-therapeutic—
Senator MOORE: Is critical.[4]

Again, this posits the malignancy of gonads at the top end of a range to justify an assertion with broad impact. We draw attention to our first submission and remarks by Dr Naomi Couch of University College Hospital, London to the UK AIS Support Group, stating that gonadectomies, if required, are carried out at age 18 – post-puberty and with informed patient consent.

The impact of future likely developments in fertility treatments was not assessed. Management of “psychosocial” rationales for sterilisation such as “severe acne, voice changes, cliteromegaly, excessive facial hair and body hair”, would not prompt the sterilisation of a non-intersex child, and so we believe that it is discriminatory. Only a “likelihood” of the 4-year old’s future gender identity has been established.

Alternative treatments are available, such as puberty blockers, that would allow the child to decide their own path in their own time.

As with In the Matter of the Welfare of a child A (1993) FLC 92-402 (per Mushin J), there are no independent views sought, and no community or patient representation. Consultations were as follows:

41. I take into account the fact that three specialist doctors from different fields are all expressing a recommendation for the procedure to be performed. The institution which brings the application is a highly respected hospital in Australia and internationally. The views expressed have been corroborated by reports from genetic testing laboratories in the United States and France.

42. I note that the [Queensland] Department [of Child Safety] has had the opportunity to be heard the Department has not made any submissions against the orders being made in terms of the application…

47. In conclusion I can say that I am comforted that I have reached what accords with the opinion of the three highly qualified specialist doctors, the hospital authorities generally, the hospital’s legal representatives, the parents and the representative of the Department.

The case demonstrates a structural inequality that results in a discriminatory result for the child concerned.

More information

[1] Family Court of Australia, 2008, Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (12 December 2008), http://www.austlii.edu.au/au/cases/cth/FamCA/2008/1226.html, accessed 1 March 2013.
[2] The Hon. Diana Bryant AO, Chief Justice of the Family Court of Australia, submission #36 on the senate inquiry on involuntary sterilization of people with disabilities, via http://aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=clac_ctte/involuntary_sterilisation/submissions.htm, accessed 25 February 2013.
[3] A Tamar-Mattis, 2012, Sterilization and minors with intersex conditions in California law, in California Law Review Circuit 2012, 3:126-135. http://www.californialawreview.org/articles/sterilization-and-minors-with-intersex-conditions-in-california-law, accessed 2 March 2013.
[4] Australian Parliament, 2012, Official Committee Hansard, Senate Community Affairs References Committee, Involuntary or coerced sterilization of people with disabilities in Australia, public hearing in Melbourne on 11 December 2012. http://parlinfo.aph.gov.au/parlInfo/download/committees/commsen/cfa53789-4bad-4cd7-a9a2-9f90afe94827/toc_pdf/Community%20Affairs%20References%20Committee_2012_12_11_1601_Official.pdf;fileType=application%2Fpdf#search=%22committees/commsen/cfa53789-4bad-4cd7-a9a2-9f90afe94827/0000%22, accessed 5 March 2013.

This is an extract of our March 2013 submission to the Senate inquiry on involuntary or coerced sterilisation