Court out

Australia's judges are urged to rethink their affirmation of gender medicine

Teenage girls are the group now dominating gender clinic caseloads. Photo by Pablo Varela on Unsplash

Australia’s Family Court, which relied on testimony from gender-affirming clinicians when liberalising access to hormonal and surgical treatments for minors, has been left “largely unaware” of the intense debate about these poorly evidenced medical interventions.

This is the claim of a landmark paper by family law barrister Belle Lane urging judges to catch up and come to grips with the profound questions raised by an unprecedented international surge in teenagers, chiefly girls, seeking medicalised gender change.

The 135-page closely argued paper, based on Ms Lane’s presentation last month to judges of the Federal Circuit and Family Court of Australia, is circulating through legal, medical and gender-critical networks.

The court’s famous 2017 decision in the case re Kelvin—celebrated at the time as a victory for transgender health rights—had appeared to entrench the gender-affirming treatment model in family law as the only proven response to the distress of gender dysphoria. The ruling cut back judicial supervision of cross-sex hormone treatment decisions involving minors.

The court relied on evidence from Australia’s most influential gender clinic at the Royal Children’s Hospital Melbourne and a draft version of its confident 2018 treatment guideline, which has been heavily promoted as “Australian standards of care”.

Now, Ms Lane’s paper tells the judges that far from being settled science, the medicalised gender-affirming approach is under increasing scrutiny, with systematic reviews of the weak evidence base leading to more cautious treatment approaches in Finland, Sweden and the United Kingdom.

“Psychological interventions for gender dysphoria have regained prominence and have developed with a modern approach—that is, a neutral stance as to outcome,” Ms Lane says in the paper.

She argues that the “medical affirmation” of minors has become “one of the most controversial areas of medicine.”

“There is a lack of clinical consensus about what is being treated, the diagnostic process, whether a diagnosis is required, the asserted benefits, risks and outcomes of the medical pathway and what alternative pathways exist.

“Since [re Kelvin and other family law rulings freeing up gender medicine for minors] the evidence base around what is called ‘gender-affirming treatment’ has moved rapidly and much more is known about the asserted benefits of the medical pathway and risks.

“Alternative treatment pathways have returned to prominence.

“In an adversarial system, the court relies upon parties and their expert witnesses to bring this information before it, so that it can make decisions in the best interests of children.

“Until recently this has not occurred, and the court has been left without evidence of the raging international and national debate about the evidence base for gender-affirming treatment.”

Queensland University legal academic Professor Patrick Parkinson, who is acknowledged as an authority by Ms Lane, welcomed her paper as “a comprehensive and balanced account of all the issues that courts need to consider before approving the prescription of puberty blockers or cross-sex hormones for a child under 18, when parents disagree.”

Ms Lane presents three immediate—and potentially awkward—questions for Australia’s family law judges, who must decide whether or not to authorise medical treatment of a gender-distressed minor in the event of disagreement between parents or clinicians.

Her questions are—

Should re Kelvin be reconsidered?

How does the court keep updated about evolving medical evidence in an adversarial system [where judges may only hear one side of the story if a party does not come under challenge by another party]?

What is the obligation of treating medical professionals [such as gender clinicians] to bring alternate views and contrary evidence to the court’s attention?

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Video: Canada’s “Billboard Chris” says children cannot consent to puberty blockers

‘No side effects’

In the 2013 Family Court case re Jamie, which liberalised access to puberty blockers in a case involving a 10-year-old child, the trial judge had noted the claim by the endocrinologist “Dr G” that this treatment was “fully reversible [and] has no side effects.”

In re Kelvin, the case for a more permissive approach to cross-sex hormone prescription faced no opposing party, and the agreed facts before the full court included the claim that puberty blockers were reversible and allowed children time to mature as they approached the decision whether or not to proceed to lifelong cross-sex hormones.

“The only risk of puberty blockade referred to in the agreed facts in re Kelvin was [reduced] bone density,” Ms Lane says in her paper. “There are more risks associated with puberty blockers than were put before the full court.”

The 2018 RCH treatment guideline, cited in draft form by the court, made no reference to the 2015 Dutch “empirical ethical” study, which surveyed 17 clinical teams worldwide and reported stark disagreement on seven key issues—including child competence and decision-making authority—raised by the push for early use of puberty blockers.

“As long as debate remains on these seven themes and only limited long-term data are available, there will be no consensus on treatment,” the Dutch study concludes.

In her paper, Ms Lane suggests Australia’s family law judges may be unable to do justice in gender medicine cases if they rely on a sole expert, typically the treating clinician of the child.

“It could be argued that it is in the interests of justice to allow the party opposing medicalisation to call their own expert witnesses,” she says.

“This is the very area where justice is better served by having experts who can set out the differences of medical opinion, medical evidence, benefits, risks, and nature and extent of the informed consent for the court.

“The court’s decisions have the potential to impact children and young people’s physical and mental health and well-being for the rest of their lives…

“The medical evidence underpinning the asserted benefits [of these gender-affirming medical interventions] is weak and the risks potentially profound and lifelong, including impacting fertility and sexual function.

“The impact of puberty blockers on sexual function and fertility are important to consider, given that almost all children on puberty blockers will continue to cross-sex hormones. This raises questions about a pubescent child being able to comprehend the impact of these decisions.”

Ms Lane quotes psychiatrist Dr Alison Clayton, who points out that “children as young as ten, who do not have the capacity for informed consent, are starting a treatment course that will likely render them infertile or sterile and this raises complex bioethical issues.”

“Are these children and young people juvenile trans adults, whose identity is fixed? For some, could their gender dysphoria be explained by something else, which they might grow out of on their own or with the assistance of therapy? Why would a child’s identity be medicalised if it is not permanent? How does a clinician determine whether a young person’s dislike of their genitalia is due to trauma from sexual abuse or gender dysphoria? What is the difference between body dysmorphia about a limb or a nose and body dysmorphia about genitals or breasts that causes the conditions to be treated so differently?”—Belle Lane, “Gender questioning children and family law: an evolving landscape”, a paper to be kept up to date for the family law profession

Judicial education

The lessons of Ms Lane’s paper include—

that sex is binary because there are only two types of gametes

the term “sex assigned at birth” is a form of political lobbying, not science

diagnosis of gender dysphoria relies on outdated sex-role stereotypes, meaning that gender non-conforming children may get labelled “trans”

a paediatrician in a 2022 family law case argued that her teenage patient, a biological female, displayed a male identity by showing “thoughtfulness, empathy, compassion for others and a desire to protect his mother and sister, which is consistent with typical feelings of many men in today’s society”

that the gender-affirming treatment model derives from gender identity theory, not evidence-based medicine

under this model, treatment is based on a child’s subjective identity in a child-led process, “a situation unheard of in other areas of medicine”

all drug prescriptions for gender dysphoria are “off label”, meaning they have no regulatory approval for that use

gender identity is a subjective and open-ended category, including the eunuch identity—males who “wish to eliminate masculine physical features, masculine genitals, or genital functioning”—validated by the latest treatment guidelines from the World Professional Association for Transgender Health

a popular list of 72 gender identities includes Anxiegender (an identity with anxiety as its prominent characteristic); Cloudgender (a gender that cannot be comprehended or understood due to depersonalisation and derealisation disorder); and Genderblank (closely related to a blank space)

the “gender tree” graphic of the Maple Leaf House youth gender clinic in Newcastle, NSW, grows blockers, hormones and surgery as leaves

same-sex attraction has been redefined by gender theory as biology-neutral same-gender identity attraction

gender identity theory has become “the dominant political discourse which informs many governments, universities, and schools, causing potentially unintended consequences for parents and children and young people”

“A concern about the gender-affirming model is that it risks iatrogenically causing the gender dysphoria—that is, the child’s gender dysphoria being caused by the treatment. If a child’s current gender identification is continuously affirmed by medical professionals, there is a risk that it may reinforce an otherwise transient identity. Encouragement to socially transition may also impact how strongly the identity is held and how difficult it may be for a child or young person to step back from the identity. Concerns have also been raised about a child being educated under this model that the only pathway to authenticity and psychological health and well-being is through medical transition, rather than exploring possibilities for an authentic transgender identity without medicalisation”—Belle Lane

Note: GCN sought comment from RCH; Ms Lane declined to comment