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An Australian judge loosens the straitjacket of gender-conforming medicine

Photo by Gianandrea Villa on Unsplash

Verdict

On Wednesday, an Australian Family Court judge, Andrew Strum, ruled in the case of “Devin,” who is 12 years old. Living with his mother, the boy had attended an unnamed Children’s Hospital Gender Service (CHGS) for almost four years. Puberty blockers were on the agenda. His father disputed the diagnosis of gender dysphoria or gender incongruence, and opposed any early medicalisation.

Justice Strum agreed that Devin was not dysphoric, just exploring gender. He gave orders to prevent the boy being taken to the CHGS, being given puberty blockers or cross-sex hormones. The father was entrusted with sole parental responsibility.

In his 58,000-word decision the judge delivers a series of hammer blows to the dogmas of the “gender-affirming” treatment approach.

Trans kids know who they are | Justice Strum: “I do not accept that [Devin] who, it will be recalled, was aged 10–11 years at trial, has an actual, fixed gender identity yet, as opposed to being gender fluid or gender exploratory.

“The case of the mother, supported by the evidence in chief of Dr N [the senior clinical psychologist at the CHGS who diagnosed Devin] and Associate Professor L [a paediatrician and former CHGS director] is that gender identity is internal and immutable, and not open to external influence.

“However, neither of those experts were able to point to any empirical or substantive basis for their opinion but, rather, only to anecdotal reports from transgender adults about their experience of their gender identity. Further, neither expert was able to point to any other aspects of human identity that are similarly said to be immutable.

“The proposition [of immutable gender identity] is also difficult to reconcile with the necessarily conceded incidence of detransitioning (albeit that the frequency thereof is disputed), as well as the evidence of some children’s gender incongruence-dysphoria resolving upon going through puberty.

“[W]hilst neither Dr N nor Associate Professor L contended, and it would seem not unreasonably so, that gender identity is something known by a child at birth, they could not proffer a definitive age at which it could be known or understood.

“However, they contended without explanation that the child would have had the capacity for such self-knowledge by the time of answering the initial questionnaire at the CHGS, at the age of merely six years.”

The judge gave much weight to the expert views of Dr O, a consultant psychiatrist who gave evidence for the Independent Children’s Lawyer representing Devin and critical of the CHGS.

Dr O cautioned that “gender dysphoria in youth can be complex and multifaceted. For example, it can sometimes be a developmental stage that will naturally resolve. It may sometimes be a precursor to later homosexual orientation…”

She stressed “the potential for prepubescent children who may be experiencing what will emerge to be homosexuality being mis-identified as transgender.”

The judge brought into view a notion of childhood not long ago regarded as commonsense.

He said: “Children may fervently believe, feel and, indeed, wish for many things which may well fall by the wayside as they develop from childhood into adulthood. At one end of a very broad spectrum, these may be innocuous, whilst, at the other end thereof, they may be deep-seated and genuinely felt or held.

“But, even then, they are still children, and their beliefs, feelings or wishes in childhood may have potentially grave ramifications for their future lives… At this stage in the child’s life, all options should be left open, without any unacceptable risk of harm to the child.”

(Devin is referred to as “the child” in the judgment; I use male pronouns for him.)

“A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life.

“We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.”—Italian physician and educator Maria Montessori, as quoted by Justice Strum in Devin’s case

We should respect the autonomy of young people | Can parents give true informed consent to gender medicalisation? Can children assent?

On this point, Justice Strum accepted the evidence of Dr O, who said: “First, my observation is that there is a tendency for [CHGS] clinicians to overstate the certainty of the evidence, to underplay risks and to dismiss the possibility of alternative treatments...

“Second, the [CHGS] has an ideological commitment to [gender-affirming treatment], which it single-mindedly promotes.

“Third, [Dr N’s] report, although brief, indicates [that] her clinical practice/discussions with [the child] and parents follows this ethos.

“All this suggests that [the child] and parents are not receiving/and will be unlikely to receive accurate information from [CHGC] clinicians to enable them to make true informed treatment decisions.”

The judge set out the unchallenged evidence of Dr R, a clinical psychologist, who said she did “not believe that, at the age of 11 years or until sexual maturation, the child could have a concrete (as opposed to abstract) understanding of sexuality and sexual functioning, such as to properly understand the long-term ramifications of gender-affirming treatment, in particular, puberty blockers.”

Dr R, the judge said, “opined that puberty and ensuing sexual experience need to be experienced by children and that gender identity can reconcile with biological sex in puberty.”

The judge raised the risk of Devin coming under “influence and coercion.”

In her report, Dr O highlighted the CHGS promotion of gender-affirming treatment “to media, parents, schools, mental health agencies, other health professionals and policymakers.”

Justice Strum also saw significance in the mother’s wishes and her immersive isolation in an LGBTQ subculture with her son.

“By reason of the child’s nature (namely, the child’s relatively young age) and the child’s nurture (namely, the mother’s gender-affirming approach to the child’s gender identity, which identity I have found to have been substantially influenced in, and by, the mother’s care), I give no weight to the child’s expressed desire for puberty blockers,” the judge said.

Gender-affirming care is the standard, the science is settled | Justice Strum: “In cross-examination, Associate Professor L broadly accepted that there was no clinical consensus as to the use of puberty blockers (or cross-sex hormones), but maintained that, within ‘particular expert groups,’ there is consensus.

“Nevertheless, she agreed that there is a clear debate regarding the appropriate care for a transgender child, she being positioned on one side of that debate.”

The judge noted that Associate Professor L was among the authors of the gender-affirming Australian Standards of Care and Treatment Guidelines (ASCTG) for trans and gender diverse children and adolescents. “[I]n cross-examination, Associate Professor L conceded that her opinion that the ASCTG is ‘best practice’ was essentially tantamount to her agreeing with herself.”

The judge took a cautious and concerned view of this senior paediatrician’s evidence. He said Associate Professor L’s self-description as an “advocate for trans rights” was in conflict with her duty as an expert witness to give objective and unbiased testimony in court.

By contrast, the judge placed reliance on the opinions of Dr M, a general paediatrician and witness opposed to puberty blockers for Devin and called by the Independent Children’s Lawyer.

Dr M was concerned about unknown treatment outcomes “due to the lack of long-term data on puberty-blocked children when they grow up.”

And yet, Dr M said, “[the child] will be a medical patient for the rest of his life to manage these knowns and unknowns.

“No children’s gender clinic, including those studying the original Dutch cohort, has produced any long-term data on outcomes of puberty blockade and cross sex hormone treatments. [The CHGS] has not produced any long-term data on the patients it has treated.”

England’s biased Cass review is irrelevant to Australia | The judge observed that Dr Cass’s final report, issued in April 2024, was “independent of the NHS and government and neither required nor sought approval or sign-off of this report’s contents prior to publication.”

He dismissed insinuations about the Cass report in a previous case by a fellow Family Court judge, Peter Tree, as “entirely unclear” and “speculation.”

Justice Strum agreed with the conclusion that Associate Professor L’s critiques of the Cass report “were ‘misleading or omitted findings/material that detracted from her opinion’ contrary to [her] obligations as an expert witness.”

On the much-debated question of detransition and its prevalence, Associate Professor L had “referenced only one study which, indeed, showed a very small percentage of detransitioning, but did not reference either the criticisms of studies on detransitioning numbers, or the other studies showing higher numbers.”

The CHGS paediatrician also drew on a Scientific American article to place the Cass report within a “trans-oppressive” tradition stretching back to Germany’s Nazis burning “trans healthcare” books and murdering “thousands of LGBTIQ people in the Holocaust.”

The judge said this framing of the Cass report had “no place whatsoever in the independent evidence that should be expected of such an expert.

“It demonstrates ignorance of the true evils of Nazism and cheapens the sufferings—and mass murder—of the millions of the victims thereof, which included, but were most certainly not limited to, transgender people, as well as gay and lesbian people, amongst other groups of people. I consider there to be no comparison whatsoever.”

The judge quoted extensively from the Cass report. He recited the findings of Cass-commissioned systematic reviews of the evidence undermining the confident claims of benefit made for blockers and hormones. And he made the point that Dr Cass’s report was broadly consistent with the expert witnesses in Devin’s case sceptical of gender medicalisation.

Gender-affirming care is holistic multidisciplinary care | Although Devin had been going to the CHGS since 2020, Dr N’s notes showed no indication of any gender distress until after the subject of puberty blockers was raised in June 2022. Once blockers were on the table, the judge said, “the child had been led to believe that a masculinising puberty was optional, rather than a foregone conclusion, because there were things that could be done to stop it.”

Diagnoses of “gender incongruence” then “gender dysphoria” were only made as pending trial dates approached in the case pitting the mother against the father, with Justice Strum observing that court approval of puberty blockers would have been unobtainable without a diagnosis.

Also troubling for the judge was the fact that Dr N’s notes revealed no sign of the comprehensive “biopsychosocial” assessment that gender clinicians claim to undertake.

“Of concern is the seeming dismissal by the mother, as well as largely by Dr N and Associate Professor L, of the possible relevance of other factors, such as maternal influence and underlying neurodivergence, playing any part in the child’s presentation,” the judge said.

“Given the possibility adverted to, inter alia, in the Cass report… regarding the inter-relationship and overlap between features of autism spectrum disorder and gender dysphoria, it is remarkable that the child was not assessed for any neurodivergence.”

Nor did the CHGS make any assessment of possible factors such as anxiety, trauma, adverse childhood experiences or social pressure via LGBTQ community groups.

The judge said: “From the evidence of Dr N and Associate Professor L, the CHGS has a single approach; gender dysphoria, if diagnosed there, is treated with puberty blockers and attendances upon Dr N or one of her colleagues. No alternative treatment options are offered by the CHGS for gender dysphoria diagnosed there, other than prescription of puberty blockers by a paediatrician.”

Indeed, “the evidence of Dr N [was] that no child or young person who has been diagnosed with gender dysphoria by, and has asked for puberty blockers from, the CHGS, and has supportive parents, has ever been refused… No alternative treatment options are offered by the CHGS…

“Key components of [the] gender-affirming treatment approach propounded by the CHGS, as identified in the evidence, include: acceptance and affirmation of a child’s or young person’s stated gender identity, without question; facilitation of early childhood social transition; provision of puberty blockers at early puberty to prevent the pubertal changes consistent with biological sex; and possibly the use of cross-sex hormones and, subsequently, surgical interventions in mid-to-late adolescence to align physical characteristics with gender identity.”

Dr O gave evidence, accepted by the judge, that, “The risks posed by medical (and surgical) gender-affirming treatment include risks to fertility, sexual function, bone health, brain development, cardiovascular function and carcinogenesis, as well as the risks of being a lifelong medical patient and of later regret.

“Given both the lack of evidence and expert consensus regarding gender-affirming treatment, youth gender dysphoria should be viewed as an area of medicine where there is genuine scope for debate about treatment options. Treating clinicians should clearly explain, in an unbiased manner, to parents and children, the benefits and harms, the uncertainties and the available alternatives,” Dr O said.

“A distinction is drawn between sex, which is biological, on the one hand, and gender, which is a matter of identity, on the other. A biological male and a transgender female, even one with breast implants and/or a vaginoplasty, have and always will have XY chromosomes.

Conversely, a biological female and a transgender male, even one with a mastectomy and a phalloplasty, have and always will have XX chromosomes. Save for rare chromosomal anomalies, that biological fact is immutable, irrespective of gender identity.”—Paediatrician Dr M, as paraphrased by Justice Strum in Devin’s case

Puberty blockers are just a pause button giving kids time to think | The judge said that the CHGS psychologist, Dr N, conceded under cross-examination “that the side-effects of puberty blockers, even when ceased, are not entirely reversible and include ongoing risks to fertility and bone density, which the child, at this age, could not properly understand or appreciate.

“In relation to the possibility of amelioration of the risks to fertility, Associate Professor L gave evidence that, prior to the administration of puberty blockers, a testicular biopsy could be undertaken to extract sperm. However, if puberty blockers are administered before the onset of puberty, as the mother seeks, there may well be no sperm to extract.

“Faced with that conundrum, Associate Professor L speculated that the biopsy might remove testicular tissue which could be frozen in the ‘hope’ that medical progress might, in the future, enable use to be made thereof for reproductive purposes, in lieu of sperm. That would appear to be entirely experimental, rather than therapeutic, medicine.”

Dr O, relied upon by the judge, argued it was “doubtful that puberty blockers may be best viewed as a ‘pause button’ that merely allows a child more time to consider their options; rather they may ‘lock-in’ a child to ongoing gender dysphoria and progression to cross-sex hormones, by impeding the usual progress of sexual orientation and gender development.

“Puberty blockers, especially when given at the earliest stages of puberty, which the child in this case has not even reached, followed by oestrogen/cross-sex hormones (which, [Dr O] opines, would be the likely trajectory), lead to infertility and sexual dysfunction.”

The court heard evidence that 95-98 per cent of children who started on puberty blockers went on to cross-sex hormones, with the judge inferring that “the CHGS is, in fact, essentially a single medical pathway once [puberty blocker] treatment commences.”

The judge was concerned at the prospect, described by paediatrician Dr M, of Devin on puberty blockers, arrested at an early stage of development, with a penis that will never grow and testes that will not produce sperm; a state of affairs leaving a young man unable to achieve orgasm and exposed to potentially fatal complications if surgeons are obliged to use a section of his colon to create a neo-vagina, given the lack of a mature penis and testes to refashion.

Dr M continued: “[On puberty blockers, a child] will likely develop relative thinning of the bones due to lack of increase in bone density that occurs during puberty. This requires close monitoring and treatment, something [the child] would not need if he went through puberty.

“There are unknown effects [of puberty blockers] on the development and maturation of the brain. [The CHGS] has only recently employed a PhD candidate to study possible effects despite blocking children’s puberty for several years.

“It is important that the adults in [Devin’s] life remember that puberty is not a disease, it is a normal developmental stage of humans that brings sexual and reproductive maturity. Avoiding this means [the child] will never reach this stage of maturity.

“If [the child] progresses [from blockers] onto oestrogen, he will have a significant increased risk of cardiovascular disease (stroke, heart attacks) and male breast cancer. This includes a 7-fold increase in ischaemic stroke, a 6-fold increase in heart attacks, a 5-fold increase in pulmonary embolism (blood clot to the lungs) and a 46-fold increase in breast cancer risk (although it remains rare overall.)”

Justice Strum was not persuaded that interfering in Devin’s natural puberty would be life-affirming.

The judge said: “I am not satisfied that, given the current levels of symptoms or distress expressed or manifested by the child, even if gender incongruent or dysphoric, the purported benefits of puberty blockers outweigh the identified risks thereof.

“I do not accept that the child’s desire for puberty blockers can be determinative, or even of significant weight, given, not only the child’s age but, equally so, the concessions by Dr N that the information given to the child thus far was ‘rose tinted’ and by Associate Professor L that this could influence the child’s desire for such treatment.

“It is of considerable concern that, notwithstanding the weight of the evidence, including, but not limited to, the Cass report, the CHGS continues to represent to parents and children that puberty blockers are fully reversible and relatively risk-free and yet, through practitioners such as Dr N and Associate Professor L, to concede the lack of evidence to support that position.”

Only bigots oppose gender-affirming care | The judge said Devin’s mother had “presented the father as being unreasonable in his position, out of ‘anti-transgender’ bigotry, a wish to be oppositional to her or, simply, a refusal to accept the child as the child is.

“However, I find that the father has not been unsupportive in his response to the child’s gender diversity but, rather, only with respect to the gender-affirming treatment pathway and, in particular, medical treatment.

“Further, based on my findings as to that treatment pathway, I find that his questions and objections have been, and are, reasonably held by him, given the risks inherent in that proposed pathway, especially with respect to the prescription of puberty blockers for the child.

“Far from refusing to accept the child as the child is, I find that is precisely what the father has sought, seeks and proposes for the child to do—to grow and develop into whatever person the child does become, with the passage of time and the acquisition of maturity.”

Nor did the judge agree with the characterisation of some evidence from paediatrician Dr M as “transphobic or ideologically extreme (or, indeed, extreme at all).”

Dr M had said: “It is not possible for [Devin] to be a girl, a woman when he’s older, or a female. He can only ever be a male, or a male whose body has been medicalised. It should be celebrated that [the child] is a male who refuses to be constrained by current society’s expectations of his sex, while at the same time maintaining the reality of that sex.”

Apart from gender-affirming care, the only options are unethical conversion therapy or “doing nothing” to ease suicidal distress | Submissions for Devin’s mother alerted the judge to the state criminal law against “conversion” of someone’s gender identity, tagging in expert evidence in the case critical of the gender-affirming worldview.

Justice Strum wondered if the reference to this criminal law, with its maximum penalty of ten years in prison, “might be, or might be perceived to be, a subtle, indirect attempt to suborn the evidence of the witnesses” regarded as less than affirming.

This overbearing context, the judge said, might explain why the father had approached “hundreds” of therapists in his state only to find them unwilling to take on a case involving a gender-distressed child, because of the chilling effect of the anti-conversion criminal law. (The father had to look interstate to find Dr R, who was willing to see Devin.)

But the assumptions encoded in that hastily enacted statute are coming under challenge, according to the expert witness Mr CC, a clinical child psychologist with experience in gender dysphoria who gave evidence for the Independent Children’s Lawyer.

In remarks given weight by the judge, Mr CC said: “The presentation of gender identity as innate, internal and immutable is fundamentally contested by a significant number of experts in the field, including those with direct treating experience with gender-diverse and gender-questioning children.

“There is growing concern and disquiet among experts about the appropriateness and effectiveness of the medical gender-affirming treatment model of CHGS.

“The notion that medical treatments alleviate gender dysphoria in children is simplistic. Medical treatments are not required to affirm a person’s gender identity and they do not systematically reduce dysphoria in the mid-to-long-term.”

The judge rejected the claim by Dr N that should Devin “be denied an opportunity to access treatment with puberty blockers, she will be at heightened risk of increased gender dysphoria and a decline in her general mental health.”

The judge also rejected the mother’s account that Devin suffered from suicidal ideation and had engaged in self-harm by hitting his penis in the bath when he was six years old.

“It was striking that when, in the course of cross-examination about her allegations of self-harm by the child, it was pointed out to the mother that what she said she believed to be self-harm might not be so but might, in fact, be far more innocuous, there was no expression of relief by her, thereby confirming her rigid, fixed views,” the judge said.

He also expressed concern about the assertion in the Australian standards of care and treatment guidelines, authored by Associate Professor L, that the “‘[w]ithholding of-gender affirming treatment is not considered a neutral option’ and the related references to ‘psychological practices attempting to change a person’s gender identity to be more aligned with their sex assigned at birth’ lacking efficacy, being considered unethical and possibly causing lasting damage to a child or adolescent’s social and emotional health and well-being.”

In response, the judge said: “Whilst in no way howsoever endorsing the practices referred to, and identified, as ‘conversion or reparative therapies,’ it is concerning that an oddly binary approach is adopted in relation to children, especially of the age of the child the subject of these proceedings; that is, to affirm unreservedly those who present with concerns regarding their gender, brooking no questioning thereof.

“The case of the mother, supported by the evidence of Dr N, is that because the child says so, the child is, and must unquestioningly be affirmed as being, female in gender identity. However, that overlooks the obvious, namely, that the child is still a child and not even, if it matters, a teenager.”

Not put off by moral panic about “conversion,” the judge noted evidence from Dr O of a range of alternatives to the gender-affirming worldview, including holistic psychotherapy that takes account of a child’s progress through stages of development.

Approaches mentioned by Dr O included—

“Careful assessment and diagnostic formulation, appropriate treatment of co-existing psychological conditions, supportive/exploratory/educative psychological care, family and group therapy, developmentally informed gender exploratory psychotherapy, trauma-informed psychotherapy, and a non-promotion of early childhood social transition (sometimes labeled under the umbrella term of ‘watchful-waiting,’ which should not be interpreted as ‘doing nothing’.)”

The judge adopted Dr O’s recommendation that Devin “be assessed by a private psychologist for consideration of whether individual psychological therapy could be of benefit.

“She envisages that this therapy would differ from that at the CHGS, as it would not be solely based on a single model of gender-affirming treatment but, rather, would seek to explore and expand the child’s self-understanding, as well as helping to manage distress, including distress about puberty onset.”