Bad law

An Australian "equality" bill would reduce gender medicine safeguards for minors

Photo by Ihor Malytskyi on Unsplash

Under the rubric of “equality”, a draft law in Australia’s most populous state of New South Wales would allow gender-distressed minors aged 16-17 to authorise their own irreversible hormone treatment, with risks including sterilisation and sexual dysfunction. The Equality Legislation Amendment (LGBTIQA+) Bill 2023 would also permit doctors in some circumstances to give children under 16 puberty blockers without the knowledge or consent of parents. Multiple systematic reviews of the scientific literature—including those most recently undertaken for England’s Cass review—have found the evidence for these hormonal treatments to be very weak and uncertain¹.

If enacted, this state “equality” Bill would be in conflict with a requirement under federal family law for court approval of gender medicine for minors if there is disagreement between parents. The NSW Bill was introduced by independent member of parliament Alex Greenwich², was referred for inquiry to a committee, which is due to report by June 3. The article that follows is an excerpt from a submission to the committee by Patrick Parkinson, emeritus professor of law at the University of Queensland—Bernard Lane

Patrick Parkinson

There is now a lot of confusion in schools and elsewhere in terms of what it means for a child or adolescent to have a “gender identity” and what consequences flow therefrom. For this reason, I recommend that if [the Equality Legislation Amendment (LGBTIQA+) Bill 2023] is passed, a new definition of “transgender” needs to be introduced to s4 to the effect that a transgender person³ is someone who identifies as another sex and is over the age of 18.

My reason for saying this is that the grounds for recognition of trans and gender-diverse persons keep shifting. Less than a decade ago, a reasonably acceptable definition would have been that a child or young person who meets the criteria for gender dysphoria in the DSM (the Diagnostic and Statistical Manual of Mental Disorders) has a gender identity that is incongruent with natal sex. Now the ground has shifted and some argue that a medical diagnosis of gender dysphoria is not needed.

Most schools accept a child as having a gender identity different to natal sex if the enrolling parent says so, and without the need for a mental health diagnosis. This can store up problems for future years. The girl who pretends to be a boy in primary school will eventually develop the characteristics of a young woman, and her voice will not deepen along with her peers, unless she takes medications that could lead her to be infertile for life. That difficulty may push her into wanting those medications to avoid the embarrassment of being a “boy” at school who develops physically as a girl.

Transgender identification used to be a rare problem, emerging first in early childhood, and mainly for natal males. Now the great majority of the children and young people who identify as gender diverse or “trans” are girls with complex histories of adverse childhood experiences and multiple psychiatric comorbidities. Many are on the autism spectrum.

Adolescence is a time of identity formation and exploration. Identity, at this age, is fluid, because part of the process of adolescence is working out “who I am” in relation to peers, parents and others. It follows that we shouldn’t assume that a child who adopts a gender identity that is fashionable amongst her peers is reflecting some innate and unchangeable truth about herself that will never change. It is very likely to change.

In these circumstances, it is best that the law does not seek to concretise a fluid gender identity by insisting that others treat the child as the gender with which she currently identifies. The overwhelming evidence from research is that even children who are consistently gender diverse from early childhood onwards will not grow up to be transgender if they are not treated as such and not medicated. As they go through puberty, these issues resolve, and most grow into gay or lesbian adults.

So pushing these children and young people towards puberty blockers and cross-sex hormones means denying to them a future as gay or lesbian adults with healthy bodies. If members of parliament are concerned about ill-treatment of gender-diverse children by adults, then the best way to tackle this would be by making sure that school policies are sufficiently nuanced and flexible to allow for proper pastoral care of the child or young person while also respecting the rights and interests of other children in the school.

The drafters of this Bill want to amend the Children and Young Persons (Care and Protection) Act 1998 to say that a young person (16 years and above) may make a decision about the young person’s own medical or dental treatment as validly and effectively as an adult. The Minors (Property and Contracts) Act already deals with medical treatment of minors, so why the duplication? Given the purpose⁴ of the rest of this Bill, it is reasonable to assume that the drafters of this Bill want to allow doctors to be able to give cross-sex hormones to a 16-year-old without parental knowledge or consent, even though this could risk permanent infertility as well as numerous other adverse medical consequences. This is not affected by s175 (special medical treatment⁵) because that section only prohibits such treatment without authorisation of a tribunal for children under 16.

The drafters also want to provide that for a child under 16, one parent’s consent to medical treatment is enough and that a doctor may treat a child under 16 without the knowledge and consent of either parent if the child is capable of understanding the nature, consequences and risks of treatment and it is in the child’s best interests.

Such changes would stand in contradiction to the decision of the Family Court in Re Kelvin to the effect that the consent of both parents is needed for puberty blockers or cross-sex hormone treatments as a treatment for gender dysphoria if the child is under 18. The conflict with the legal position in federal law would create yet more uncertainty.

The proposed changes, allowing for the prescription of puberty blockers by doctors without parental knowledge and consent ought to alarm members of parliament. For a long time, we were told that puberty blockers were perfectly safe and reversible, and they are when used to treat precocious puberty, for which they are licensed. However, when used off-label to block puberty in the normal period for pubertal development, there are significant risks.

There is now sufficient evidence, for example, that they could adversely affect brain development, as Professor Sallie Baxendale’s recent research demonstrates. Furthermore, there is ample evidence that almost all children placed on puberty blockers will go on to cross-sex hormones, and this will render them infertile as well as affecting their capacity for sexual pleasure.

Boys, treated in this way from the onset of puberty will never be able to experience orgasm. Girls will experience an impaired capacity for sexual pleasure due to vaginal atrophy and a greatly enlarged clitoris which can sometimes be painful. I have not seen any gender clinic consent form that has spelled out to parents, and their children, what will happen to their sexual function if the children have these treatments.

For boys, in particular, the medical pathway should now be understood as indescribably cruel, given what we now know of its impacts and the lack of any objective way of identifying who will remain “trans” and who will grow out of it if puberty is allowed to progress in the normal way.

These radical treatments have been promoted as necessary, lifesaving interventions to address the risk of children committing suicide. However, it turns out that isn’t true either. There is an elevated risk of suicide attempts in this cohort, but most have psychiatric co-morbidities, and the risk of suicide attempts is no greater than in matched cohorts of young people with psychiatric illnesses.

Furthermore, suicide, while always tragic, remains rare amongst trans-identified children and young people. Despite these issues, puberty blockers are being given out liberally in the Hunter region [of NSW], and increasingly by Westmead Hospital [in Sydney]. Private doctors are entirely unregulated in this area. In my litigation work, I have become aware that practices in this country vary widely, and some at least are inconsistent with what clinicians say publicly are their practices.

There is a grave risk of harm to same-sex attracted young people from unnecessary and irreversible medications. There is a great need now for strict regulation of this practice, as the NHS has decided in England and as occurs in Scandinavian countries. It is certainly not the time to decrease the regulation of puberty blockers or cross-sex hormones and to allow doctors to act without parental knowledge and consent to authorise treatments that have lifelong and very serious consequences.

While some activists still claim that less than one per cent of young people will come to regret the treatment, this is based on an old study concerning regret about genital surgeries. An average of the recent studies would indicate a regret rate of around eight per cent now; but we don’t really know, because this is all so new⁶.

The large number of teenagers with mental health issues who now identify as “trans” may not come to regret it for many years to come, when they struggle to form satisfying intimate relationships and want to have children. Few of them have been told of the impact of these treatments on their sexual function and capacity for sexual pleasure. Leading doctors in gender clinics in North America have acknowledged that adolescents are incapable of giving an informed consent, but they give the drugs anyway.

1. In his commentary on the 2024 Cass report, the British Medical Journal’s editor-in-chief, Dr Kamran Abbasi, said: “One emerging criticism of the Cass review is that it set the methodological bar too high for research [on gender medicine] to be included in its analysis and discarded too many studies on the basis of quality. In fact, the reality is different: studies in gender medicine fall woefully short in terms of methodological rigour; the methodological bar for gender medicine studies was set too low, generating research findings that are therefore hard to interpret. The methodological quality of research matters because a drug efficacy study in humans with an inappropriate or no control group is a potential breach of research ethics. Offering treatments without an adequate understanding of benefits and harms is unethical. All of this matters even more when the treatments are not trivial; puberty blockers and hormone therapies are major, life-altering interventions.”

2. In his second reading speech, Mr Greenwich said: “Young trans people face significant barriers to gender-affirming care that other young persons do not for treatment with similar outcomes or risks. The prospect of experiencing a puberty that does not align with one’s gender can be highly distressing. Strong evidence from over at least a decade shows that gender-affirming medical care can reduce depression and suicidal ideation in young trans people [See footnote 1—GCN]. But without support from both parents, children can only access gender-affirming medical care through the courts. Although the courts generally approve requests, courts are difficult to access for young people, who end up missing out on the care they need. The bill would legislate Gillick competence [This is a common law test of capacity to give informed consent—GCN] by clarifying in the Children and Young Persons (Care and Protection) Act 1998 that a young person who is 16 or over is able to make a decision about their own medical and dental treatment as validly and effectively as an adult. Children under 16 will need a parent’s consent, or their treating medical practitioner would need to ensure that they are capable of understanding the nature, consequences and risks of the treatment and that the treatment is in the child's best interest.”

3. The Bill would allow an open-ended form of self-declared “gender identity” and not just for adults. The draft law defines a transgender person as “a person who lives or seeks to live as a person of a different sex to the one registered to the person at birth.”

4. Easier access to paediatric gender medicine is just one aspect of this Bill, which in its original form would amend 22 existing statutes.

5. The NSW Children and Young Persons (Care and Protection) Act 1998 restricts various kinds of “special medical treatment”, such as an intervention likely to render a child under the age of 16 permanently infertile.

6. The Cass report said: “The percentage of people treated with hormones who subsequently detransition remains unknown due to the lack of long-term follow-up studies, although there is suggestion that numbers are increasing.”