Litigation: next moves

Gender clinics face potential court challenges on multiple fronts

Photo by Lou Levit on Unsplash

The gist

Litigation over Australia’s youth gender clinics is likely to fix on fertility-destroying treatment, lack of fully informed consent, and medical negligence, the legal academic Professor Patrick Parkinson has predicted.

“There's now a massive amount of evidence to suggest the need for serious scrutiny of any decision to put a child on puberty blockers or cross-sex hormones,” Professor Parkinson, from the University of Queensland, told GCN.

The latest development in favour of greater caution is England’s draft treatment plan for youth gender care which, like Sweden and Finland, would make exploratory psychotherapy the first-line treatment for minors, and tightly restrict access to puberty blocker drugs.

All three countries carried out systematic reviews of the medical literature, each showing a weak and uncertain evidence base for medicalised gender change with minors.

“There's been an assumption in the Australian case law that once you find a child has got gender dysphoria [a distressing sense of conflict with the body], then the justified treatment is puberty blockers, cross-sex hormones and, eventually, surgery,” Professor Parkinson said.

“But that doesn't follow — you may have a child who fits the diagnosis of gender dysphoria for whom exploratory therapy is the frontline treatment option.”

Professor Parkinson, who is a specialist in family law, gender dysphoria cases and child protection, said he expected litigation would also focus more sharply on whether or not patients under age 18 — often affected by mental illness or autism — and their parents could give fully informed consent to medical transition with hormonal or surgical interventions.

“One of the issues is that they’re just not being told enough at the moment about the risks and the uncertainties in the scientific literature to give a  properly informed consent,” he said.

“And so my expectation is that we will see, down the track, very substantial negligence liability for doctors and hospitals, and the taxpayer will end up funding it.”

Reportage: The New York Times (belatedly) covers some of the concerns about chemical suppression of normal puberty

Heather E Heying @HeatherEHeying

"They paused puberty, but is there a cost?" Of course there's a cost. Development is complex, and halting part of it with exogenous hormones will be destructive. This has always been obvious. Next time, before legions of children are harmed, let's think.

nytimes.comThey Paused Puberty, but Is There a Cost?Puberty blockers can ease transgender youths’ anguish and buy time to weigh options. But concerns are growing about long-term physical effects and other consequences.

The detail

We need to talk about Kelvin

In a recent article in the Australian Journal of Family Law, Professor Parkinson analyses a famous 2017 court ruling, in the case known as re Kelvin, which cut back judicial supervision of the decision to start adolescents on irreversible, potentially lifelong cross-hormone treatment.

The Family Court ruled that minors such as “Kelvin” — the pseudonym for a 17-year-old biological female who identified as male — no longer had to secure judicial approval before beginning synthetic cross-sex hormones, as long as parents and doctors agreed it was the right course.

The decision was celebrated by gender clinicians, transgender groups, news media and human rights lawyers for enabling faster, less costly access to “life-saving” treatment. It was the culmination of a years-long campaign by Australia’s most influential gender clinic at the Royal Children’s Hospital (RCH) Melbourne.

But in his paper, Professor Parkinson challenges the reason given by the Family Court majority for changing the law and shifting responsibility from judges to clinicians.

The majority decision in re Kelvin said: “It is readily apparent that the judicial understanding of gender dysphoria and its treatment have fallen behind the advances in medical science.”

However, the court had decided to disregard several scientific articles — including a 2014 paper from the Dutch clinic which pioneered medicalised gender change for adolescents — presented by the parties in the case as proofs of the state of scientific knowledge of gender dysphoria. For technical legal reasons, it was not clear that this material could be admitted into evidence.

“The decision in re Kelvin was not actually based upon a comprehensive review of that medical and scientific knowledge,” Professor Parkinson says in his paper.

“The majority judges had no evidential basis for their conclusion that new developments in the medical and scientific understanding of gender dysphoria justified a [change in the law].

“This is for the simple reason that [they] declined to admit any such evidence.

“The court was presented with a view that there was a settled medical consensus on the risks and benefits of the treatment; but that consensus did not then, and does not now, exist internationally.

“The court was not made aware of the diversity of views amongst clinicians treating this very troubled population of adolescents, as well as the areas of uncertainty and controversy about [medicalised gender change] in the medical and scientific literature.” 

Professor Parkinson says the court did rely, in a limited way, on untested evidence from the RCH gender clinic director, Dr Michelle Telfer, about the disciplinary expertise of her team and the persistence over time of transgender identity among her patients.

But Dr Telfer herself had stated that, “No longitudinal study is yet available,” and this concession appears in the court’s decision.

The majority judges’ view that the science had overtaken the law also relied on the existence of RCH’s draft treatment guidelines, badged as “Australian Standards of Care”, but the evidence for this document and its prudence have been questioned.

The court, Professor Parkinson says, “was not presented with a literature review on the state of knowledge in the medical and scientific community as a whole on rates of persistence and desistence [of gender dysphoria] in children and young people where other therapeutic approaches have been adopted.”

He argues that the shortcomings of re Kelvin “fatally undermined” its authority, and he predicts that fresh litigation will require judges to revisit issues not properly scrutinised in this heavily promoted case.

“This is likely to necessitate a more nuanced and balanced examination of the state of the medical and scientific evidence and the issues of controversy and uncertainty which surround the question of whether the benefits of treatment are likely to outweigh the risks in any given case,” Professor Parkinson says.

The Family Court ruling in re Kelvin received positive media coverage.

On the case: Gender medicine and the law

Gillick, 1986: The United Kingdom’s House of Lords ruled that a girl under age 16 could be given oral contraceptives (or comparable medical interventions) by a doctor — without her parents’ knowledge or permission — as long as she had the maturity and intelligence to understand the nature and implications of the treatment. Australia’s High Court later adopted this test, and the Family Court has had a role in deciding whether minors are “Gillick competent” to authorise their own treatment in gender dysphoria cases.

Re Kelvin, 2017: “Kelvin”, a 17-year-old who identified as male, wished to start cross-sex hormones. Using a procedure known as “a case stated”, a full Family Court majority agreed with Kelvin and his supporters — including the RCH gender service and the Australian Human Rights Commission — that clinicians and not the court should decide Gillick competence for irreversible hormones. The court cited advances in the medical understanding of gender dysphoria. There was no longer any need to involve the court before starting hormones, except in the case of disagreement between parents or doctors.

As was typical of gender dysphoria cases, the proceedings in re Kelvin were not adversarial, the parties all agreed on diagnosis and treatment, and so the judges did not have the advantage of hearing rival expert witnesses or competing evidence being tested by cross-examination. From July 2013 to August 2017, the Family Court had heard 63 applications on behalf of minors seeking cross-sex hormones or surgery; in 62 cases, treatment was allowed and in 55 cases the child was found to be Gillick competent.

Australia’s largest youth gender clinic, at the Royal Children’s Hospital Melbourne, has seen a dramatic increase in patient numbers.

After the much-publicised 2017 ruling in re Kelvin, researchers associated with the gender service of The Children’s Hospital at Westmead, Sydney, noticed a trend: “With the change in law, some families began to put increased pressure on clinicians from our gender service (and clinicians in New South Wales, more generally) to provide cross-sex hormones before the children turned 16 and sometimes as young as 12.” In their 2021 article, the Westmead researchers say they fear “conveyor belt” medicalisation of children who in truth need holistic, “trauma-informed mental health care” reflecting their histories of high rates of abuse, separation from family members, and exposure to domestic violence.

Re Imogen, 2020: “Imogen”, a 16-year-old male who identified as a girl, wanted cross-sex hormones to feminise the body. The father agreed, but not the mother, whose expert witness diagnosed Imogen with complex post-traumatic stress disorder arising from exposure to family violence, parental conflict and the mental health problems of a sibling. Family Court judge Garry Watts sided with Imogen’s treating psychiatrist, and approved oestrogen drugs, which can lead to sterilisation.

However, Justice Watts warned doctors not to prescribe irreversible cross-sex hormones without first checking whether or not both parents agree. He said the RCH treatment guideline — used nationally — had incorrectly stated the law declared in re Kelvin. The RCH advice for clinicians was that, while “obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be [Gillick] competent to provide informed consent”.

The implication was that physicians may have been starting a child on potentially lifelong hormone drugs on the strength of one parent’s agreement, and not contacting the other parent who might be seen as “unsupportive” of the “gender-affirming” treatment approach. Gender clinics appear to regard the re Imogen ruling not as a clarification but as a rolling back of case law that had opened up access to puberty blockers, cross-sex hormones and surgery for minors.

An RCH ten-year audit, covering a period predating re Kelvin, reported that, of the total 317 patients, 10 had neither parent or caregiver “supportive of gender diversity”, and 83 patients had only one parent supportive. The majority (224) had both parents supportive.

A golden era

The RCH gender clinic had a policy of not consulting parents believed to be “ideologically” opposed to gender diversity, the 31st Medico-Legal Congress in Sydney was told in March.

Psychiatrist Dr Tram Nguyen said she had joined the Melbourne-based gender clinic during the “golden era” before the re Imogen ruling.

“[Back then] we would try and obtain parental consent from both parents, but where there is an uninvolved parent, in a [Gillick-competent] child's life, we would not actively pursue it,” she said. (This reflected the clinic’s understanding of the re Kelvin decision.)

“Where you have a parent who's been uninvolved for a long time, has left the mother in the delivery room and has not returned, a parent who has gone overseas and started a new family elsewhere, a parent who was incarcerated … and parents who, we know, ideologically, do not support the idea of gender diversity — so we would not seek their active consent [and the onus was on] that disputing parent to apply [to the court].”

“It's very easy [if there are] two supporting parents — we get the treatment, it's very quick.”

Dr Nguyen said adolescent patients suffered psychological distress when told that, following re Imogen, a disengaged parent had a say.

“So that leaves me in a state of great moral injury — moral injury because I didn't sign up to be a psychiatrist in a system that creates psychological distress.”

She said that suicidal patients given medical interventions under the re Kelvin system would have missed out under re Imogen.

“So this is where [a court ruling] impacts on medical treatment — medical decision-making — and where, really, we need legislative change.”

Parents internationally have complained that the gender-affirming treatment model misrepresents parental concern about risky transgender medicalisation as a failure to support the child — and even as neglect requiring intervention by child welfare authorities.

GCN put questions to RCH and Australia’s Labor Party Attorney-General Mark Dreyfus. The Liberal Party Shadow Attorney-General, Julian Leeser, said he had sought briefings on gender dysphoria and the law. In 2020, the then Liberal Attorney-General, Christian Porter, who had intervened in re Imogen, rejected a request from the gender clinicians’ lobby, the Australian Professional Association for Trans Health, that the Family Court decision be reversed by legislation.

Video: Psychotherapist Marcus Evans and psychologist Susan Evans discuss trauma and gender-questioning adolescents (from Genspect)

Disputes ahead

In his paper, Professor Parkinson says the re Imogen case — with evidence of family violence, mental illness and trauma — illustrates the complexity now facing gender clinics and the courts.

In his ruling, Justice Watts identified three crucial areas of potential dispute likely to be litigated in the near future — Gillick competence, medical diagnosis and treatment choice.

Professor Parkinson highlights the English Court of Appeal’s warning in the Tavistock case that the information given to adolescents has to keep up with “developing understanding” and evolving research in this difficult area of healthcare.

This information has to include “concerns about the efficacy of treatment in resolving gender dysphoria and the possibilities of subsequent regret,” he says.

And he says it is unclear how Gillick competence — developed with an intelligent 15-year-old in mind — should be applied to adolescents with poor mental health or autism.

“There is surely a vast chasm of difference between the level of understanding and wisdom needed to consent to having one’s tonsils removed and having a hysterectomy or double mastectomy,” Professor Parkinson writes. (In the Gillick case, tonsillectomy was given as an example of the kind of intervention a child under 16 might be competent to authorise.)

“Medical practitioners who understate the risks [of hormonal or surgical interventions] or do not properly convey to the child and parents the current state of medical and scientific knowledge and debate, are exposed to significant medico-legal risk,” Professor Parkinson says.

Nor, he says, is diagnosis straightforward.

“Given the emerging evidence — not least in the Westmead studies — of high rates of psychiatric comorbidities and histories of family dysfunction and trauma, the issue arises whether some children and adolescents now presenting with gender dysphoria may have wrongly attributed the cause of their distress to issues of gender identity.

“It follows that the consideration by a court of whether there has been a proper diagnostic assessment will need to consider whether the clinicians have adequately explored the possibility that the gender dysphoria is better accounted for by other diagnoses, with implications for the appropriate treatment.”

In re Imogen, Justice Watts also made clear that parents may challenge a Gillick-competent child’s consent to cross-sex hormones, reflecting the fact that this treatment may destroy the patient’s fertility.

Professor Parkinson says courts will have to consider whether such treatment is appropriate and proportionate.

He says the Family Court in re Kelvin did not make “any assessment of the medical and scientific evidence” for hormonal interventions — “the benefits of medically assisted transition were asserted rather than evaluated.

“There is now considerable controversy about whether the empirical evidence supports the use of puberty blockers and cross-sex hormones.”

He cites last year’s conclusion by the U.K. National Institute for Health and Care Excellence that the evidence base for blockers and hormones was very uncertain. He also notes the serious concerns raised by paediatrician Dr Hilary Cass, who is leading an independent review of youth gender care in England.

“Expert therapeutic counselling with gender dysphoric adolescents has been shown to be effective in assisting some young people to address issues of gender dysphoria without going down the path of cross-hormone treatment and surgical interventions,” Professor Parkinson writes.

“The potential benefits of such interventions would need to be weighed in any individual case with the risks of declining to approve treatment.”

He says courts have to be conscious that the research evidence does not support claims of dramatically high suicide risk for patients denied gender-affirming medical interventions.

And he says the reliance of gender clinicians on historically low rates of treatment regret should be viewed sceptically because of changes in treatment and patient type, missing data from regret studies, and new research reporting that only 24 per cent of a group of 100 detransitioners went back to their clinicians to inform them that they now regretted these medical interventions.

Note: GCN does not dispute that gender-affirming clinicians believe their interventions are of benefit to vulnerable patients in distress. In a 2019 statement, RCH said its treatment was based on the “best available medical evidence”, in line with “international best practice”, and followed “strict clinical governance standards”.