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Gender clinics in Australia are pitching their alarming suicide narrative to state judges
The gist
Gender clinics in Australia are side-stepping a federal Family Court ruling that makes it difficult for them to start medical treatments for minors without consulting both parents and potentially exposes them to more informed scrutiny.
The clinic at the Royal Children’s Hospital Melbourne (RCH) successfully argued in a state Supreme Court last month that a 12-year-old boy, “CD”, who identifies as a girl, could be started on “reversible” puberty blockers relying on the mother’s consent without the need to try to track down the estranged father.
The court was told that RCH Melbourne was worried that the hospital or its gender clinicians could face civil or criminal liability if they went ahead with blockers for CD.
Also last month, it was revealed that the Queensland Children’s Gender Service follows the decisions on consent to treatment handed down by its state Supreme Court.
In the corrective 2020 re Imogen ruling, Family Court judge Garry Watts warned gender clinicians to stop giving teenagers irreversible cross-sex hormones that potentially sterilise them without first checking that both parents agree.
In the event of disagreement over gender medicine for minors, he said, treatment required court approval. (The parents of a gender clinic patient may be living separately and in deep conflict.)
“Imogen” was a trans-identified boy started on puberty blockers and the cross-sex hormone oestrogen without reference to his mother, who agreed with a psychiatrist’s opinion that her son’s distress was not a gender identity issue but reflected untreated trauma from exposure to family violence.
The case highlighted the practice of clinicians and one trans-affirmative parent pushing ahead with treatment, while the “unsupportive” parent sceptical of medicalisation is kept in the dark. This gave the impression of “no active dispute,” meaning clinicians and the affirmative parent felt no compulsion to seek court authorisation for treatment.
Until the more strict re Imogen ruling, the Family Court had been celebrated by trans activists and human rights lawyers for a series of decisions relaxing its oversight of gender medicalisation of minors and easing access to “lifesaving” treatment. RCH Melbourne led the campaign to reduce “discriminatory” judicial supervision in cases where both parents approved treatment.1
“The [RCH] clinical team, the lawyers, the young people and their parents standing together … We had changed the law. Transgender adolescents now have the same legal rights to access medical treatment as all other adolescents,” the then director of the RCH gender clinic, Dr Michelle Telfer, said in 2018, referring to the Family Court’s 2017 re Kelvin decision on access to cross-sex hormones.
The Family Court gave its imprimatur to a draft of the “Australian standards” treatment guideline written by the RCH gender clinic, and endorsed that clinic’s unexamined claim of a new scientific consensus in favour of the “gender-affirming” treatment approach with puberty blockers, opposite-sex hormones and trans surgery such as mastectomy.
But conflicting expert evidence in re Imogen ended a run of one-sided cases in the Family Court.
And in May last year, Family Court judges were presented with a landmark 135-page conference paper on gender medicine and the law by barrister Belle Lane, who alerted the court to the intensifying international debate and the contested nature of claims unchallenged in a string of previous gender dysphoria cases.
For example, Ms Lane targeted the assertion that puberty blockers are a reversible intervention capable of being understood by children.
“The impact of puberty blockers on sexual function and fertility is important to consider, given that [according to research data] almost all children on puberty blockers will continue to cross-sex hormones,” she wrote. “This raises questions about a pubescent child being able to comprehend the impact of these decisions.”
With gender medicine cases in the Family Court recently exposing trans-affirmative clinicians to more critical scrutiny and evidence from “non-affirmative” experts, one response of clinicians and the parent favouring treatment is to settle proceedings brought against them in this jurisdiction so as to prevent the reputational damage of an adverse judgment on the public record.
The other response, as in last month’s Victorian case of CD, is to pivot to state Supreme Courts with “urgent” treatment applications involving only one parent, thereby side-stepping expert counter-argument as well as the more exacting consultation process set out in re Imogen by the federal Family Court.2
And state judges, presented with alarming claims of suicide risk to young people, have approved these applications on the spot, despite in some instances acknowledging the greater experience of their federal Family Court counterparts in gender dysphoria cases.
“‘Gender-affirming’ hormonal and surgical interventions do not reduce the risk of suicide for transgender-identifying adolescents, according to an unusually comprehensive and rigorous study. The landmark research from Finland, an international leader in the shift away from medicalised gender change, found that suicide risk in a large group of adolescents was predicted by the psychiatric problems that often accompany gender distress, not by the gender distress itself.”—Gender Clinic News, post, 19 February 2024
The detail
At a medicolegal conference in March 2022, RCH psychiatrist Tram Nguyen said she had joined the Melbourne-based gender clinic during what she called the “golden era” before the 2020 re Imogen ruling when the policy was not to seek the “active consent” of a parent who was uninvolved or “ideologically” opposed to “gender diversity”.
“It’s very easy [if there are] two supporting parents—we get the treatment, it’s very quick,” Dr Nguyen said.
It is not uncommon for there to be conflict, dysfunction, and contested stories in the families of children who present with what looks like gender distress.
The 2018 RCH treatment guideline cited the Family Court’s 2013 re Jamie and 2017 re Kelvin rulings easing judicial supervision of decisions to start minors on puberty blockers and cross-sex hormones, and declared, “Court authorisation prior to commencement of hormone treatment is no longer required.”3
In re Imogen, Justice Watts said the RCH guideline had misrepresented the law as stated by the court, and warned that, “Any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate [puberty blockers, cross-sex hormones or trans surgery] without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment.”
In response, RCH reissued its treatment guideline with all Family Court citations cut from the reference list, but acknowledging that clinicians did have to check the position of both parents—and seek judicial authorisation for treatment in the event of disagreement involving parents or doctors.
The Queensland Children’s Gender Service—which issued a work instruction to clinicians leaving open the possibility of teenage female patients being referred to private surgeons for trans mastectomy—appears not to follow the more strict re Imogen process for consulting parents.
“[The clinic] is consistent in seeking informed consent from all parties, where possible, and has a practice which has been defined by, and is consistent with, decisions of the Queensland Supreme Court,” according to an official evaluation report released last month. The report, however, does say that gender service staff have “taken into consideration the determinations of several Family Court cases”; these are not named.
In last month’s Victorian case involving the 12-year-old boy known as CD, Supreme Court judge Melinda Richards held that the law allowed one parent to exercise responsibility for children independently of the other, and the mother’s consent was sufficient.
The relationship had ended when CD was an infant, the mother had raised the child alone, there had been a domestic violence order against the father, and his whereabouts were now unknown, court was told by the mother.
“I can’t think of another area of paediatric care where we give young people a potentially irreversible treatment and have no idea what happens to them in adulthood.”—Dr Hilary Cass, leader of the world’s most comprehensive review of youth gender medicine, interview, the British Medical Journal, 9 April 2024
No different
In her reasons published on August 2, Victorian Supreme Court judge Richards said, “the legal requirements for consent to [puberty blockers] for gender dysphoria are no different from those that apply to any other medical treatment to which a parent may consent—such as childhood vaccinations, surgery to mend a broken bone, or chemotherapy to treat cancer.”
On July 31, Justice Richards gave her ruling ex tempore—on the same day as the hearing—and without the benefit of any other parties or expert witnesses scrutinising the case put by RCH Melbourne and the mother.
The judge said puberty blockers were “reversible” and cited claims by RCH gender clinicians that suppressing CD’s natural testosterone would bring “immediate psychological relief” and time to explore gender before committing to lifelong oestrogen treatment.
In the opinion of an RCH clinician, the judge noted, “CD is likely to remain stable in her female gender identity, in which case she will also derive long-term benefit from having had [puberty blocker] treatment to prevent unwanted and irreversible masculinisation during puberty. If she later becomes unsure about her gender identity, she can stop the treatment.”
The judge said CD had identified as female since age 7, became an RCH gender clinic patient the following year, and “lives and presents as a girl, with a preference for stereotypically female colours and clothing.”
“She is distressed at the prospect of her voice breaking, of her Adam’s apple developing, and of facial and increased body hair. Recently, her level of distress has been so high that it has affected her functioning at home and at school, and last year she began to report suicidal thoughts.
“There is an element of urgency, because CD is in the early stages of puberty.”4
“While there is some evidence that indicates pubertal suppression may impact cognitive function [in the still developing adolescent brain], there is no evidence to date to support the oft-cited assertion that the effects of puberty blockers are fully reversible. Indeed, the only study to date that has addressed this in sheep suggests that this is not the case.”—Neuropsychologist Sallie Baxendale, review paper, Acta Paediatrica, 9 February 2024
Fast justice
Amid familiar claims of urgency, a judge of the Supreme Court in the state of Queensland made an ex tempore ruling approving puberty blockers in a case brought on the last day of the court year in December 2020, three months after re Imogen.
Delays in the federal Family Court and the 12-year-old boy’s increasing distress at the onset of puberty were cited as reasons for the mother to apply to the state Supreme Court, which has a jurisdiction to stand in the shoes of a parent and make decisions in the best interests of a child.
In her published reasons, Queensland Supreme Court judge Ann Lyons noted the opinion of a clinician, “Dr B,” that unless the boy, who identified as a girl, was given puberty blockers, a “significant risk of depression, anxiety, social isolation and suicide will continue, as well as potential self-harm concerning her genitalia.”
The mother approved of this intervention suppressing her son’s natural testosterone, while the estranged father, whereabouts unknown and with a history of drug and weapon offences, was deemed “unlikely to consent to the medical treatment.”
Justice Lyons said that puberty blockers were “considered therapeutic and reversible.”
“The main concern with such treatment relates to the impact upon bone mineral density and that the long-term impact on bone mineralisation is currently unknown.”5
Although the judge upheld the mother’s application, she said she believed the Family Court would be the better venue to deal with any proposal that the child proceed to cross-sex hormones “given its expertise in matters of this nature” and because the urgency attending puberty blockers “would not be operative.”
“… given that the vast majority of young people started on puberty blockers proceed from puberty blockers to masculinising/feminising [cross-sex] hormones, there is no evidence that puberty blockers buy time to think, and some concern that they may change the trajectory of psychosexual and gender identity development.”—Final report from England’s 2020-24 Cass review, April 2024
He/him
In March 2022, a different Queensland Supreme Court judge, David Boddice, gave another ex tempore decision in a gender dysphoria case, this time in favour of “urgent” cross-sex hormone treatment with testosterone for a girl almost 17 years old diagnosed with gender dysphoria.
“The child was born as what would be commonly referred to as female but identifies as male. He uses ‘he, him’ for pronouns. He dresses as a male and he considers himself to be a male,” Justice Boddice said in his written reasons.
“The child does suffer from autism spectrum disorder. It appears the child had insight into that condition in that, for a time, the child wondered whether in fact the view as to being not a girl was part of that condition.”6
The father, who was the respondent in the Supreme Court case, did not appear, but the judge said it was clear from paperwork that he did not agree with the treatment or the dysphoria diagnosis assigned to his daughter.
Justice Boddice took the view that if he found the girl competent to give consent, “that really should be the end of the matter,” meaning treatment would follow “notwithstanding the views of one or more of the child’s parents.”
He discussed the principle in Family Court decisions, including re Imogen, that judicial authorisation was required for treatment if parents disagreed.
He dismissed that principle as obiter dicta—a passing remark by a judge not necessary to resolution of the issues in a case. Justice Boddice went on to say that, if he had to decide the point, he would find the principle wrong in law and not to be followed.
But in the case before him, he ruled that the girl’s competence to consent to testosterone was decisive, and he saw “no reason why the court ought not to accept the detailed expert opinions expressed in the affidavit material relied on in the [mother’s] application.”
“There remains diversity of opinion as to how best to treat these children and young people [who present with what seems to be gender distress]. The evidence is weak and clinicians have told us they are unable to determine with any certainty which children and young people will go on to have an enduring trans identity.”—Final report from England’s 2020-24 Cass review, April 2024
An uncertain clarification
In the Victorian case re CD, Supreme Court judge Melinda Richards noted the position of RCH Melbourne that, following the Family Court’s re Imogen ruling, the hospital was uncertain whether the law would allow its gender clinic to start CD on blockers without attempting to consult the father.
Justice Richards said that Dr Tom Connell, executive director of medical services and chief medical officer of RCH, had sought legal advice “whether hospital practitioners could administer that [puberty blocker] treatment without risk of being criminally or civilly liable in the event that valid consent has not been given if one parent is not available to consent.”
“[Dr] Connell added that his understanding is that, if treatment is provided without valid consent, there may be a risk of professional conduct proceedings for individual practitioners involved in the provision of that treatment.”
Lawyers external to RCH had advised that if a child was not competent to consent and the parent not present with the child at the hospital could not be contacted or did not consent, then “there is a risk that valid consent has not been given and that the hospital or its medical practitioners could be civilly or criminally liable.”
Justice Richards said that one of the points offered as clarification in the Family Court’s re Imogen ruling had “been interpreted by some to require the positive express consent of both parents, rather than the absence of any objection or dispute.”
And she conceded there was support for that interpretation in Justice Watts’ remark that a doctor was “not at liberty to initiate [puberty blockers, cross-sex hormones or trans surgery] without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment.”
But she regarded this strict interpretation as obiter dicta—not necessary to resolution of the issue in re Imogen, and she pointed out that Justice Watts was dealing with a different case involving cross-sex hormones rather than puberty blockers, and the views of both parents were known.
“It is concerning that an obiter statement of a single judge of the Family Court has created additional uncertainty for families like CD’s where one parent has been absent from the child’s life for many years, effectively abdicating their parental responsibility,” Justice Richards said.
Drawing on Victorian statute law, she said that a decision about the medical treatment of a child could be made by one responsible parent who was willing and able to make that decision.
She said the independent exercise of parental responsibility was also the default position under federal family law, subject to an order giving one parent sole responsibility.
She took issue with two family law rulings applying the strict view on parental consultation stated in re Imogen “as if it had legislative effect.”
“I do not consider that they correctly state the law in relation to consent to [puberty blocker] treatment for gender dysphoria,” she said. “In particular, I do not agree that it is necessary to seek court approval for that treatment only because the affirmative consent of an absent parent has not been obtained.”
Days after the re Imogen decision was handed down in September 2020, the trans-affirmative lobby, the Australian Professional Association for Trans Health, urged the then federal Attorney-General Christian Porter to override Justice Watts’s ruling with legislation.
Mr Porter, who had formally intervened in the Family Court case, said the Watts ruling on parental consent was “consistent with the submissions I made to the court, and there is no intention to legislate on this issue”.
In remarks to The Australian newspaper Mr Porter pointed out that in previous Family Court cases, parents were agreed on treatment, leaving the role of the court unclear when they were in conflict.
“The decision in re Imogen has clarified that court authorisation is required in the event of a dispute about the diagnosis and proposed treatment for gender dysphoria, with appropriately the best interests of the individual child in any particular matter being the paramount consideration,” he told The Australian.
GCN sought comment from RCH Melbourne and the Children’s Health Queensland
The oversight seemed theoretical in the sense that Family Court judges had almost always found children competent to consent to life-altering gender medicalisation.
The federal Family Court does not have exclusive jurisdiction over cases involving medical treatment of children.
The 2018 re Matthew ruling extended this logic to trans surgery, although this was the decision of a single Family Court judge.
Various RCH claims recited by Justice Richards are used internationally by gender clinicians and trans activists and have been found to be baseless or doubtful by British paediatrician Hilary Cass in her 2020-24 review of youth gender care.
There was no reference in the judgment to the unknown effects of puberty suppression on the developing adolescent brain or whether it might distort the process of psychological and social identity formation and associated sexual orientation. A significant number of young people at the London-based Tavistock gender clinic were same-sex attracted, raising the concern that some proportion of gender clinic patients internationally are being subjected to a form of unethical “conversion therapy” making them appear “trans”, not gay, lesbian or bisexual. One gay clinician at the Tavistock, Anastassis Spiliadis, raised this very issue with managers, saying, “We are medicalising some people who would later identify as lesbian, gay and bisexual, not trans [if they were not medicalised].”
Children with autism are also over-represented in gender clinic caseloads. Tavistock clinician Dr Kirsty Entwistle observed that many teenage female patients had indications for autism but said “there was no special investigation into this new phenomenon” at the clinic. England’s Cass review commissioned a survey of gender clinics internationally, and it was revealed that one Australian clinic did not screen new patients for autism.
The much marketed ‘suicide risk’ as a medico-legal rationale for proceeding with these ghastly interventions in children is nothing less than emotional blackmail to get the job done.
The disproportionally high rate of mental health pathology in the GD cohort more than explains the suicidality in those lining up at the gender clinics.
Long-term studies (20 or 30 years) confirm that the outcome of those who ‘transition’ is peppered with suicide and ongoing misery.
The scalpel has no place in managing childhood distress.
It always comes back to psychiatry defining anyone who doesn’t agree with it as catastrophically dangerous. It’s particularly egregious with trans.
It means that soon there will be a national review, country by country of the entire premise of psychiatry.
It has now entirely failed its role to both help those in need, and to protect against the mentally ill.
It must undergo complete reform.