Crime unseen

Government lawyers in Australia try to retrofit safeguards into a radical model of gender medicine likely to sterilise more children

Photo by Hu Chen on Unsplash

The gist

Doctors may be committing criminal offences when prescribing cross-sex hormones for some transgender-identifying minors in Australia’s most populous state.

It is unknown whether paediatric medical transition has already resulted in criminal offences punishable by seven years’ prison in the state of New South Wales (NSW), and many doctors may be unaware of the risk they face.

For guidance on gender medicine, doctors in the public and private sector are expected to look to the NSW government’s 51-page Framework for the Specialist Trans and Gender-Diverse Health Service for People Under 25 Years, launched in July 2023.

That NSW Health document, welcomed by LGBTQ lobbies and showing signs of their activist influence, makes no reference to the risk of medical practitioners committing criminal offences under two state laws if they put some young people on the path to permanent infertility.

Beneath the heading “Informed consent procedures” it simply says that, “On a case-by-case basis, additional approval may be required from the NSW Civil and Administrative Tribunal.” Nothing is said about the potential criminal liability if this approval is not obtained.

Doctors would be expected to know that federal Family Court approval is required if the parents of a minor disagree over gender treatment such as puberty blockers, cross-sex hormones or surgery.

But the importance of the NSW state tribunal in this realm is not well known. Its permission may be needed in gender medicine cases where cross-sex hormones for a child younger than age 16—or for a patient aged 16 and above affected by cognitive impairment—are likely to lead to sterilisation.

Without permission, the doctor may be committing a criminal offence under potentially overlooked laws on the protection of minors and vulnerable people enacted in an era before the unprecedented trend of gender medicalisation.

The centre-left Labor Party administration in NSW and its LGBTQ allies, which together promote “gender-affirming care” as a straightforward entitlement, have an incentive not to issue strong public warnings on this topic.

However, government lawyers within NSW Health have belatedly and quietly turned their minds to the medico-legal risks of the state’s rapidly expanding network of gender clinics for young people aged up to 25 who identify as trans or non-binary.

For ministers or health authorities to mount a campaign to ensure that doctors, including suburban practitioners, are aware of these legal risks could also draw unwanted mainstream attention to—

the facts of a little-known legal case—predating this year’s historic ruling by Family Court Justice Andrew Strum—where a proposal to treat a 15-year-old autistic boy, “Lisa”, with cross-sex hormones was rejected;

the likelihood that senior officials in the NSW Health ministry are aware that early puberty blockers followed by hormones will render boys incapable of orgasm, with bleak implications for adult relationships;

the perhaps surprising news that the NSW Health ministry does not regard gender dysphoria as a life-threatening condition;

the legal concession of the ministry that oestrogen and testosterone given as cross-sex hormones may be “reasonably likely” to sterilise minors;

the revelation that the negative side effects of puberty blockers on the mental health of children are known to NSW Health clinicians;

the increasing practice of prescribing irreversible cross-sex hormones to younger and more troubled minors with next to no data on the likely outcomes;

and the fact that officials in the ministry and its lawyers are aware of the risk that cognitively impaired minors may be unable to give informed consent to hormones.

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The detail

NSW Health, a government agency, refused to answer GCN’s questions about what steps it had taken to determine whether doctors had unwittingly been committing criminal offences, nor did it reply to questions about any official measures to alert doctors across the state to these medico-legal risks of prescribing cross-sex hormones to minors.

To discover the sobering results of belated warnings issued by NSW Health’s own legal team, doctors would have to chance upon the webpage that hosts the 2023 Framework for the Specialist Trans and Gender-Diverse Health Service for People Under 25 Years (the document itself is of little help).

Doctors who do find their way to the webpage will read: “Please note—since the publication of this [framework] document, further guidance has been released regarding the consent requirements for gender-affirming treatment for young people under 18.”

This further guidance is found via a link to a section on minors from a newer document, the Consent to Medical and Healthcare Treatment Manual, published by NSW Health in April 2025 (almost two years after the confident, rainbow-coloured framework document went live).

The new sub-section on “gender-affirming medical treatments” for minors is quite detailed, running across seven pages with repeated prompts for doctors to contact the Legal and Regulatory Service of NSW Health for advice and clarification.

By contrast, the better-known under-25 framework document devotes just eight sentences to informed consent.

Apart from the daunting complexity of the April 2025 NSW Health legal advice, its tone and relative caution are at odds with the urgent-seeming “transition or suicide” narrative of the gender-affirming worldview.

It also makes a vague but telling reference to new case law arising from three little known tribunal proceedings. This case law suggests an emerging division between NSW Health gender clinicians in the field and the agency’s senior officials over when cross-sex hormone treatment for children under 16 can be justified.

Judging by those tribunal cases, NSW Health officials are aware that their clinicians are putting young boys and girls on a novel treatment pathway from early puberty blockers to cross-sex hormones with almost no research data available to answer the question whether sterilisation is inevitable, should these patients one day stop hormones and hope to start a family.

Be warned

Fear of future litigation may explain why the NSW Health legal advice is especially insistent on the need for Family Court approval in the case of potential disagreement among parents. Jurisdictions elsewhere have appeared untroubled by gender clinicians fast-tracking the treatment of minors with only the custodial parent on board. The tactic is to proceed as if there were no disagreement after choosing not to discover the attitude of the other parent deemed to be “unsupportive”.

“If there is any indication at all that the absent parent may not agree with the proposed GAMT [gender-affirming medical treatment], the prudent approach is to assume there is a dispute or controversy and a court order will be required before commencing GAMT,” the NSW Health advice says.

“Careful documentation of discussions with the parents and young person is required, including discussion of benefits, risks and any long-term side-effects, and sequelae [or outcomes] of treatment as is currently known.”

But the relatively new concern preoccupying the NSW Health legal team arises from the interaction between over-confident gender clinicians and two state laws overseen by the NSW Civil and Administrative Tribunal.

First, s33 of the Guardianship Act 1987 is triggered “where the young person aged 16 years and above has a cognitive impairment such that they cannot understand the general nature and effect” of treatment that is reasonably likely to render them permanently infertile. (Sterilisation is a potential outcome of cross-sex hormones.)

This section of the Act deals with people who are in need of a guardian and lack the capacity to consent to medical treatment; intellectual disability would be one reason for such cognitive impairment.¹

Has this impairment been invoked by NSW Health lawyers in the gender clinic context because young people with autism and ADHD are disproportionately prone to confusion about sex and difficulties in puberty? Some affirmative clinicians speak of using drawings to try to explain their “lifesaving” treatment to autistic children who struggle with verbal communication.

A radical turn

Gender-affirming care has reportedly become more radical since the 1990s-2000s when the Dutch innovators of paediatric medical transition made a point of denying treatment to minors with serious psychiatric or neuro-developmental disorders on the grounds that they were unlikely to enjoy good outcomes.

Has it become a practice for NSW Health clinicians to prescribe cross-sex hormones to intellectually disabled minors? The agency did not reply when asked this.

The new legal advice links to a fact sheet which says that the NSW tribunal, if asked to approve treatment for the cognitively impaired under the Act, will take account of “the nature and extent of the person’s disability … and how this affects their understanding of the treatment.”

The tribunal may also want to know, “Has the person indicated, in any way, that they want the proposed treatment?”—which suggests the clinician may be dealing with a child incapable of verbal communication.

In any event, the tribunal can only give its consent in such cases if “it is satisfied that the treatment is necessary to save the person’s life or prevent serious damage to their health.”

“Evidence” of this necessity will be expected by the tribunal, according to the NSW Health legal advice, and it may be “difficult to determine if the treatment is necessary”. The gender-affirming zeal of a clinician would seem insufficient.

Especially when the research evidence “does not adequately support the claim that gender-affirming treatment reduces suicide risk,” according to England’s 2020-24 Cass review, the world’s most comprehensive and credible inquiry into the care of gender-distressed youth.

But if a NSW clinician prescribes cross-sex hormones for a young person contrary to this “special treatment” regimen of the Guardianship Act, it is a criminal offence carrying a maximum seven-year prison term.

The same prison term can be imposed for a breach of the second relevant state law, under s175 of the Children and Young Persons (Care and Protection) Act 1998.²

This deals with “special medical treatment” reasonably likely to leave a child younger than age 16 permanently infertile.

It may be a criminal offence to prescribe cross-sex hormones without approval from the tribunal “unless the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment to save the child’s life or prevent serious damage to their health.”

This exception, the NSW Health advice says, “will not ordinarily be available in respect of [gender-affirming medical treatment].” (That might surprise clinicians who present hesitant parents with a stark choice between “a dead daughter or a live son”.)

“Whether or not there is a ‘real, not speculative or remote’ risk of permanent infertility will require the treating team to form an opinion on a case-by-case basis,” the advice says.

“This is an evolving area of medicine and further evidence is required on the fertility risks for children who commence puberty suppression early and proceed to gender-affirming hormone treatment.

“Clinicians should remain aware of any new evidence in this respect and make their own clinical determination as to whether the proposed treatment is ‘reasonably likely’ to cause permanent infertility. This may require referring the child to a fertility specialist for an independent opinion.”

All this troubling uncertainty runs counter to the up-beat gender-affirming campaign for ever-younger hormones ever more widely available through suburban medical practices and mental health centres, with the aim to liberate the movement from the capacity constraints of specialist gender clinics.

The current Endocrine Society guidelines, issued in 2017 and still cited by Australian clinics, suggest that children under 16 may be too immature to consent to cross-sex hormones, and admit “there is minimal published experience treating [children] prior to 13.5 to 14 years of age.”

However, the NSW under-25 framework belongs to the more recent, militant generation of guidance with no minimum age for cross-sex hormones.³

And the story of the more cautious legal advice from NSW Health appears to be linked to the newer, more risky treatment pathway that puts children on puberty blockers at the very start of their natural sexual development, followed by cross-sex hormones.

This sequence is thought to make sterilisation more likely, especially for boys, but we are in the realm of experimental treatment and opinion rather than reliable data.

In July 2024, the NSW tribunal was presented with a test case comprising three proposals to treat minors younger than age 16 with irreversible cross-sex hormones.⁴

In each case, the application was made by an unnamed endocrinologist at an unnamed NSW Health gender clinic. Remember that it is the medical practitioner who faces a prison sentence for breaching the Children and Young Persons (Care and Protection) Act 1998.

Things became more official when the Hunter New England Local Health District of NSW Health, which operates in regions north of Sydney, took over as the formal applicant, and the ministry itself joined the proceedings, along with a “separate representative” lawyer for each child. This set up the possibility of divergent views.

The three cases were heard together, with newsworthy judgments in October 2024, apparently unreported by mainstream media.

The key case for understanding the tribunal’s approach appears to be that of “Lisa”, a 15-year-old boy who identified as a girl and wanted to start the cross-sex hormone oestrogen.

The boy had been diagnosed with autism, generalised anxiety, a learning disorder and low average IQ.

Dr 5, a psychiatrist at the NSW Health clinic, diagnosed Lisa with gender dysphoria after two appointments over the phone; there was said to be a history consistent with this diagnosis.

“In Dr 5’s opinion Lisa has a realistic understanding of what she can and cannot expect from the proposed treatment,” the tribunal said. In the same paragraph, Lisa was quoted as saying, “I don’t want boy puberty. I am a girl. I want to take hormones to make me a girl.”

The paediatric endocrinologist, Dr 3, translated this impossibility into the modest formula that Lisa wanted “to access oestrogen therapy to feminise her appearance.”

A social worker noted that Lisa—kept in a state of asexual suspension by puberty blockers since, it seems, the age of 11—was “very clear she does not want to have children in the future and would find a fertility referral distressing.”

In any event, because Lisa’s natural puberty had been blocked early, an expert in the case explained that the boy was “unlikely to have developed ejaculatory function or sperm production.” So, there would be no mature sperm to preserve for the sake of future fertility.⁵

There was no doubt that Lisa’s fertility would continue to be impaired while on hormones, but the question was whether that incapacity would prove to be permanent in the event that he decided to stop and wished to father a child.

The short answer: nobody knew.

Expert 1, an unnamed Australian obstetrician and gynaecologist, said there was no “high-quality evidence to accurately predict return of fertility” if, as was proposed in Lisa’s case, oestrogen treatment starts before puberty with its normal reproductive capacity is allowed to fully develop.

Elsewhere, expert 1 was more frank: there was “a complete lack of guiding evidence” to predict whether Lisa would lose all hope of future fertility.

Even so, this expert ventured the opinion that permanent infertility was not a “remote” possibility because puberty suppression had begun so early, and the tribunal accepted her evidence.

The “special medical treatment” provisions of the Act were enlivened.

Next came the question whether the risk of a criminal offence would evaporate because cross-sex hormones were judged necessary to prevent serious damage to Lisa’s psychological health.

Dr 5 reported that Lisa had said, “I will be sad and mad” if not given approval to start oestrogen.

The separate representative lawyer, speaking for Lisa, said hormones were indeed necessary to prevent mental harm, and of course, Dr 3 and the Hunter New England Local Health District of NSW Health stood behind the treatment application.

But the ministry disagreed, and the tribunal rejected the application.

This is a rarity. Most reported legal proceedings, state and federal, have rubber stamped the gender medicalisation of young people.

In this case, the tribunal acknowledged that Dr 5 might be correct in predicting Lisa would succumb to a mood disorder if denied oestrogen, but felt the teenager “will probably be able to cope with the distress and disappointment.”

At age 16, three months away, Lisa could begin treatment without need of the tribunal’s approval.

Is gender dysphoria life threatening?

The second case feeding in to the NSW Health legal advice involved “Jess”, another trans-identifying 15-year-old boy seeking oestrogen.

The suppression of Jess’s natural male puberty began a little later but even so, expert 1 testified that the risk of his becoming permanently infertile was not remote.⁶

And the ministry took the cautious position that it was indeed open to the tribunal to find that sterilisation was reasonably likely for Jess.

The tribunal had to consider a threshold question under the Children and Young Persons (Care and Protection) Act 1998. If the potentially sterilising treatment was “intended to remediate a life-threatening condition,” then it was not the kind of “special medical treatment” requiring the tribunal’s approval.

According to years of trans activist messaging, gender dysphoria is a potential killer and gender-affirming care is the only possible lifesaver.

The separate representative lawyer for Jess argued that hormones are indeed used to treat gender dysphoria as a life-threatening condition.

The lawyer said “that Jess is actively suicidal and deeply distressed at the prospect that she may not receive Stage 2 [cross-sex hormone] treatment or that the treatment may be delayed.”

But notwithstanding NSW Health’s uncritical public promotion of gender-affirming care, the ministry adopted a real-world position before the tribunal.

“[The ministry] contends that gender dysphoria is not a life-threatening condition either at large or in Jess’s case,” the tribunal said.

“NSW Health says that while not seeking to diminish or minimise the distressing impact of gender dysphoria on Jess, the evidence does not support a finding that that condition is life-threatening.

“The expert evidence reveals that the cause of Jess’s distress and suicidality is multi-factorial.”

In other words, the cause cannot and should not be ideologically assigned to the gender issue alone—precisely the objection of those who deplore the “trans suicide” narrative.

Dr 7, Jess’s clinical psychologist at the NSW Health gender clinic, attributed the boy’s decline in mental health to the side-effects of puberty blocker drugs, as well as increased gender dysphoria.

On 6 August 2024, Jess had reportedly said, “I will kill myself if I can’t access oestrogen.”

Dr 7 and the psychiatrist, Dr 5, both argued that cross-sex hormones in this case should be approved by the tribunal because they were necessary to save Jess’s life or at least prevent serious psychological harm.

The tribunal agreed, noting that oestrogen “would not, of itself, alleviate Jess’s depression and the co-morbidities which are contributing to suicidal ideation. Oestrogen is not an antidepressant. Jess will continue to require anti-depressants to treat her depression.”

“However, according to Dr 7, [cross-sex hormone] treatment will help to alleviate the gender dysphoria which is one of the primary drivers behind Jess’s current episode of depression. Dr 7 explained that the treatment is likely to result in Jess feeling that her body is moving to be more aligned with her gender identity.

“The proposed treatment is not without risk. As explained by [the paediatric endocrinologist] Dr 4, in addition to the risk of infertility, the proposed treatment could lead to a rise in blood pressure and clotting. Added to that risk is the unknown, whether in the future Jess will change her mind about her gender identity and, if so, the likely impact on her mental health.”

The idea of withdrawing puberty blockers, encouraging this teenage boy to accept himself as male and treating any remaining mental health issues with mainstream interventions does not seem to have occurred to anyone.

The third case dealt with by the tribunal involved a 15-year-old female, “Charles”. Like Lisa, this girl had her natural puberty suppressed early. She had spent almost five years on puberty blockers. Identifying as a boy, she wished to start on testosterone at the NSW Health gender clinic.

Expert 1, the Australian obstetrician and gynaecologist, noted there was “limited data about the long-term impact of testosterone on ovarian follicles and almost none in patients who have commenced testosterone in a pre-pubertal state.”

Again, this reflects the radical treatment pathway now presented as orthodox.

The word “patients” in expert 1’s statement, above, turns out to be a reference to mice.

There are trans-identifying females who go off testosterone, conceive and give birth, but the cases reported in the literature appear to be women who had experienced natural puberty before they began cross-sex hormones.⁷

There is a new group of children being exposed to early puberty suppression at the outset of their normal reproductive development; the fertility outlook for them is uncertain.

In this scientific vacuum, the experts at the tribunal appeared to take the view that testosterone is less destructive of female reproductive capacity than oestrogen is of male capacity.⁸

And so the tribunal, citing the increasing evidence of “trans males falling pregnant” after ceasing testosterone, concluded that permanent infertility was not “reasonably likely” for Charles.

This meant cross-sex hormones would not constitute “special medical treatment” under the Act and could go ahead without the tribunal’s approval.

But it is worth noting that, once again, the NSW Health ministry had adopted a more cautious position, submitting it was “open to the tribunal to find on the available evidence that the proposed treatment is reasonably likely to have the effect of rendering Charles permanently infertile.”

GCN put questions to the offices of the NSW Attorney-General Michael Daley, Health Minister Ryan Park and their departments; there was no reply

1. Young people under 16 affected by this incapacity would fall under parental responsibility.

2. The Act was mentioned in the 2020 Family Court gender dysphoria case re Imogen but this aspect of the ruling received scant media attention.

3. In one major US study, the minimum age for cross-sex hormones was reduced from 13 to 8. The 2022 standards of the World Professional Association for Transgender Health—cited by Australian clinics—abruptly deleted minimum ages for most surgery following political pressure from the US Biden administration.

4. A search of past decisions of the NSW tribunal did not turn up any previous cases involving minors potentially sterilised by cross-sex hormones for gender transition.

5. As for ejaculatory function, the American celebrity gender surgeon Dr Marci Bowers opined in 2021 that boys subject to early puberty suppression would never be able to achieve orgasm as female-identifying adults equipped with a neo-vagina. “[My] fear about these young children who never experience orgasm prior to undergoing surgery are going to reach adulthood and try to find intimacy and realise they don’t know how to respond sexually,” Dr Bowers said.

6. It’s interesting that the two experts called in to advise on the future fertility of Lisa and Jess were obstetricians/gynaecologists, as if the bodies of these two male patients had magically become female like their felt identity.

7. Australia’s official Medicare statistics state that 323 “males” have given birth since January 2010.

8. There was also reference to the example of the therapeutic recovery of fertility in females with congenital adrenal hyperplasia, a rare disorder which may virilise the body with unnaturally high levels of testosterone. This prompted no recognition in the tribunal ruling that cross-sex hormones are creating an endocrine disorder in otherwise healthy bodies.