Gender grind

Dr Cass's report complicates life for Australia's family court

Photo by Sebastian Pichler on Unsplash

An Australian family law judge, Peter Tree, has raised the prospect that lengthy disputes over access to gender medicine for minors could “grind the court to death.”

Justice Tree, of the Federal Circuit and Family Court, made the remark yesterday in a protracted case¹ where the parents are divided over a girl’s wish for cross-sex hormone treatment and where there are conflicting views about the relevance of England’s Cass report issued in April.

“Is this going to be the litigious formula for every child who wants to take puberty blockers or cross-sex hormones where there is no parental consent?” the judge asked.

The gender dysphoria case was originally set down for four days of hearings in March, but lawyers for the parent opposed to testosterone treatment were allowed to call further expert evidence.

Justice Tree said that if every such dispute required a four-week trial, “it’s going to grind the court to death,” and take hearing time from family law cases involving parenting and property orders.

The court heard there were two other lengthy gender medicine cases now running, and the judge suggested it might reach the point where “the case for statutory intervention becomes overwhelming”—meaning law reform by federal parliament.

The court had the job of ensuring minors were competent to consent to puberty blockers, cross-sex hormones and surgery, such as double mastectomy, given the attendant risks. However, human rights lawyers and the gender clinic of the Royal Children’s Hospital (RCH) Melbourne argued this requirement was unnecessary and discriminated against trans-identifying patients.

In the 2017 re Kelvin case, the full Family Court agreed to wind back judicial supervision of treatment decisions involving irreversible cross-sex hormones, endorsing a claim by RCH Melbourne that advances in the medical science of gender dysphoria justified the change. Since that ruling, the court has only taken gender medicine cases where parents or doctors disagree.

In yesterday’s hearing, barrister Belle Lane, appearing for the parent opposed to hormone treatment, argued for the relevance of the Cass report to Australian clinical practice. She described it as the “most significant and comprehensive review” of gender medicine.

During cross-examination of a witness called by the independent children’s lawyer², Ms Lane suggested the Cass report was relevant to the evidence base for treatment, the “flawed” clinical assessment of the child in the case, the risks of cross-sex hormones, and the question of a child’s competence to consent to treatment.

The barrister for the parent supporting the child’s wish for hormones, Richard Carstone³, objected and suggested Ms Lane was inviting the court to overstep its role and use the Cass report to critique the trans treatment policy of the state government.

He said the question before the court was whether or not to approve treatment under that state policy; no other treatment model or jurisdiction was relevant.

Ms Lane said her questions should be allowed, insofar as treatment policy related to the best interests of the child.

Justice Tree said the proposal was only to administer testosterone— “that’s all that’s proposed.”

“… with lifelong implications,” Ms Lane added.

She said the relevance of the Cass report extended to the re Kelvin decision.

“Part of the problem is that I’ve never read the Cass report because nobody has put it in evidence yet,” Justice Tree said.

Ms Lane said that was what she was proposing; Mr Carstone objected.

Justice Tree said that whatever view he took of the Cass report, it would set no precedent and judges in future gender medicine cases could disagree with him.

And he said “the real problem” with re Kelvin was that it had “pretended” to be a case stated—a procedure where a court is asked to decide certain questions based on agreed facts—when the point had been determined.

Ms Lane said the full court in re Kelvin had failed to analyse the scientific evidence, and the agreed facts had included the assertion that there was a clinical consensus on gender dysphoria treatment internationally.

Justice Tree said re Kelvin would not “stand in the way” of a legal challenge arguing that cross-sex hormone treatment was “not therapeutic”.

Ms Lane suggested it might be cosmetic or experimental. Justice Tree said it either fixed a condition or it might be just some “swanning around in corporeal fancy dress”.

As for the Cass report, the judge said he would allow Ms Lane’s line of questioning “but on a tight leash”.

Chapter and verse

Ms Lane asked the witness for the independent children’s lawyer—a gender-affirming psychiatrist—whether it was agreed that chapters 1-16 of the Cass report were relevant to Australia’s clinical practice and approach to gender dysphoria treatment.

The psychiatrist said the Cass report was “a major report in a country with a similar health system” and the onus fell on Australian clinicians and health service decision-makers to assess the application of the report and see whether or not practice in Australia should be changed.

The psychiatrist said there had been extensive discussions about the Cass report within and between gender services in Australia.

“The consensus is that the sections of Cass that are good advice are mostly things Australia is already doing [such as the use of multi-disciplinary teams],” the psychiatrist said.

“There are a number of recommendations which we think were mistakes, poor advice.”

The psychiatrist said the restriction of puberty blockers to clinical trials would have been “all very well” if a trial had been prepared and ready to start; the February 2022 interim report of the Cass review had foreshadowed a likely end to routine treatment with puberty blockers⁴.

“But [a clinical trial] is not up and running and there is no sign of it.”

The psychiatrist said it was therefore very difficult to access puberty blockers and it was believed there might be only 100-odd minors on blockers in England.

The psychiatrist criticised the emergency UK-wide ban on puberty blockers announced by Health Secretary Victoria Atkins on May 30 just before the dissolution of parliament for general elections on July 4.

“That [ban] seems very out of keeping with the level of risk in puberty suppression,” the psychiatrist said.

Ms Lane asked if the gender-affirming treatment approach included psychological interventions.

“There is no evidence of any psychological treatment successfully resolving gender dysphoria,” the psychiatrist said.

Asked about medical treatments, the psychiatrist said: “I never recommend that someone has blockers, I never recommend that someone has hormones.”

The psychiatrist said, “People think about what they want” and then clinicians discussed eligibility for medical interventions under treatment guidelines.

In the case of the child before the court, Mr Carstone said one psychologist had seen a hint of autism spectrum disorder but abandoned a half-completed autism screening test when the child scored lower than expected.

The child had seen many other health professionals who had not noted possible signs of autism; there had been no formal assessment to determine this question.

The psychiatrist giving expert evidence had not met the child but said the more health professionals who thought the child did not have autism, the less likely it was that autism was present.

Cross-examined by Ms Lane on differential diagnosis, the psychiatrist said: “If you have autism, it doesn’t mean you’re not trans.”

The psychiatrist said it was a matter of assessing the “communication needs” of a child with autism and distinguishing between a stable, long-lasting gender identity and an obsessional interest in gender.

Ms Lane asked about the “high correlation” between same-sex orientation and gender identity.

The psychiatrist said that by their “own frame of reference,” many trans young people were gay or lesbian; “a registered-male-at-birth feels she is attracted to other females, [there are] lots of lesbian trans women”. (An earlier version of this article mistakenly referred to “trans men”.—GCN)

Ms Lane asked if there was a risk of young people at gender clinics confusing same-sex attraction with gender identity.

“I’ve seen a small number of people like that,” the psychiatrist said, suggesting that the confused would “not make it through the gate of the gender clinic”, but would drop off the waiting list.

Earlier, on the question of gender identity and social influence, the psychiatrist spoke of some young people whose expression of trans identity had been evident from 18 months of age.

“The person came out apparently a boy, although they had female genitals,” the psychiatrist said.

“It’s not difficult for me to believe that some people are just trans.”

Ms Lane asked about Dr Cass’s conclusion that greater social acceptance of trans was not an adequate explanation for the exponential increase in gender clinic referrals and the unprecedented flip in patient profile from males to females.

The psychiatrist said such a conclusion was “completely subjective”.

The psychiatrist attributed the rise in referrals to media coverage, more widespread knowledge of trans identity and availability of treatment.

The psychiatrist recalled being puzzled as a teenager about the pop song Lola by The Kinks⁵; the psychiatrist did not think many 13-year-olds today would be unaware of trans.

Ms Lane asked if it were the case that a biological basis for gender dysphoria could not be confirmed. The psychiatrist agreed, in the sense that the causes of dysphoria were not known in the way that the causes of, say, cystic fibrosis were.

The psychiatrist was also asked about the December 2023 position statement on gender dysphoria issued by the Royal Australian & New Zealand College of Psychiatrists.

The psychiatrist said the college had taken into account concerns about the previous September 2021 statement, which had been criticised by the gender-affirming Australian Professional Association for Trans Health.

The psychiatrist said the process for the 2023 dysphoria statement involved psychiatrists who worked with trans youth and in gender clinics, as well as critics of the gender-affirming approach, and included a trans person who had “significant input on the drafting” of the statement.

The psychiatrist said that nobody in the college was perfectly happy with the outcome, but the statement represented an acceptable compromise that people could “live with”.

The hearing continues.

1. Suppression orders of the court prohibit publication of certain details of the case, including the identities of expert witnesses, the names of clinics or hospitals, the state where the legal proceedings originate, and the birth sex or gender identity of the parents.

2. The independent children’s lawyer is funded by a state legal aid commission.

3. This is a pseudonym. The name of the barrister for the parent seeking a court order approving testosterone treatment has been suppressed.

4. Puberty blockers remain routine treatment in Australia.

5. Lola was a hit for The Kinks in 1970. The lyrics include lines such as, “Well, I’m not dumb, but I can’t understand / Why she walks like a woman and talks like a man” and, “Girls will be boys and boys will be girls / It’s a mixed up, muddled up, shook up world”.