What the judges didn't hear

The little-known story of how inconvenient expert opinion was silenced in the legal campaign to free-up puberty blockers

Think again

Diana Bryant, who was Australia’s chief justice of the Family Court in the 2010s when the transgender idea took off here and abroad, says she now has doubts about the landmark ruling in the re Jamie case that liberalised access to puberty blockers.

“If I were deciding the [2013 re Jamie] case now and had the evidence that’s now becoming available, I certainly doubt that I would have come to the conclusion that we should move to the general view that [court] approval wasn’t needed for puberty blockers,” she said. “Things have absolutely moved on since 2013.”¹

The influences in her reconsideration, as reported in The Australian newspaper this week, include—

the 2020-24 UK Cass review, which undermines gender clinic claims of beneficial outcomes and confirms the weak evidence base for their supposedly “lifesaving” hormonal treatments;

concerns that the natural sex hormones suppressed by blockers are necessary for critical stages of cognitive development, plus the adolescent brain’s bias towards impulsive decision-making and group belonging;

the unprecedented surge in chiefly female teenage patients with the possibility of peer pressure; and

the risk that a minor’s rejection of birth sex may be driven by overlooked factors such as poor mental health, autism or awkward same-sex attraction.

A new consensus?

In the 2013 Family Court appeal case of re Jamie, a 10-year-old boy who identified as a girl, the court heard no challenge to the claims of an endocrinologist, “Dr G”, that a new international consensus favoured the use of these drugs to block the puberty of a gender-distressed child.

Both Jamie’s parents supported treatment, but court approval was needed.

Ms Bryant and her judicial colleagues accepted an argument by the Australian Human Rights Commission that the risk of a child being wrongly prescribed blockers was not too serious because anonymised experts in the proceedings had asserted the drugs were “fully reversible” and had “no side effects”.

Loss of fertility was barely discussed in the case because it was assumed to be temporary.

Judicial oversight of paediatric gender medicine was based on the 1992 re Marion case where it was held that only a court, not the parents, could approve the fraught sterilisation of a 14-year-old intellectually disabled girl. The stated aim of the parents was to protect their daughter from the distress of menstruation and prevent her falling pregnant with a child she could not care for.

A key element of the High Court’s concern was that Marion was otherwise healthy, and sterilisation was not a side effect of some other “therapeutic” intervention to cure a disease or disorder. One judge in this case invoked the spectre of Nazi eugenics.

The Family Court’s 2013 re Jamie ruling was celebrated as a human rights victory, although puberty blockers followed by cross-sex hormones create a real risk of sterilisation in physically healthy minors often with untreated mental health disorders.

Without the delay of court approval, children’s hospital gender clinics were free to roll out blockers.²

It is a little-known fact of the re Jamie proceedings that an unnamed “public authority”, concerned about the interests of other children with disabilities, was not allowed to show the judges a report that might have disrupted the gender medicine groupthink.³

That report, the court was told in 2012, covered—

“the nature of the controversies currently in the medico-scientific literature in respect of this [gender identity] disorder,⁴ the ethical issues in respect of the attitude of the child, and the controversies and issues which arise in respect of treatment for a child which may span a significant number of years, between [puberty blockers and cross-sex hormones]”.

Sounds like potentially useful information.

The public authority wanted the court to have the benefit of a psychiatrist’s affidavit on “the state of the medical evidence on childhood gender identity disorder”, which the authority described as a “controversial and complex psychiatric disorder”.

Introduction of this competing evidence was “strongly opposed” by the lawyers for Jamie’s parents, who claimed that a thorough exploration of the issues did not require the involvement of “someone who simply disagrees” with their own argument that judicial oversight of puberty blockers could safely be relaxed.

They would say that, wouldn’t they? As things stood, the evidence before the court was Dr G and the human rights commission singing from the same song sheet.

The parents’ lawyers also complained of the procedural difficulty and costs involved in calling contested evidence during an appeal.

But that was a function of the parents having failed to challenge the “judge must approve blockers” rule when Jamie’s case first came before the court in 2011—when Justice Linda Dessau’s approval of treatment was sought and given.

The public authority had been invited to get involved at this trial stage—the stage where competing evidence is supposed to be weighed and assessed.

Had the parents flagged their challenge to Ms Dessau’s jurisdiction, the authority said it would indeed have intervened to defend this judicial oversight of puberty blockers; perhaps its evidence would have effectively challenged Dr G’s.

But, at the appeal level before the full court with Ms Bryant presiding in 2013, the public authority was allowed to intervene but only on the proviso that it not call evidence; so, no competing psychiatric opinion for the potential illumination of the judges.

In this unusual appeal, where Jamie’s parents were permitted to seek the overthrow of a rule they had not contested at trial, the authority was restricted to making submissions.

Even in this limited form, the authority’s arguments make compelling reading—

“The pharmaco-therapeutic treatment sought for [childhood gender identity disorder] ‘does not treat the psychological imperative at the heart of the condition, but alters an otherwise healthy body to accommodate to the psychological imperative.’

“Rather than address a bodily malfunction or disease, the treatment is ‘inextricably associated with the patient’s self-identity’ in a developmental stage when this is still forming.”

In other words, like the sterilisation in re Marion, puberty blockers are “non-therapeutic”, beyond the reach of parental approval and require judicial oversight.

The public authority argued there was indeed a serious risk if blockers are wrongly prescribed because—

“the aetiology of the [gender identity] disorder is not understood;

“the procedures to treat it/ respond to it are experimental;

“the procedures are ethically complex and contentious;

“the procedures will commence or continue a gender change process, a major life-altering decision; and

“there are differing professional opinions as to how a child or adolescent should be treated for gender identity disorder.”

That snapshot of the state of play holds true today.

It fits with the 2024 findings of the Cass review and the rationale for the international shift away from routine gender medicalisation—begun in Nordic countries five years ago. This new, more cautious approach gives priority to psychological and psychiatric treatment of the mental health disorders that are over-represented in gender clinic caseloads.

Mental and emotional disorders, not gender distress itself, are the real drivers of suicide risk in gender clinic caseloads, according to recent research based on Finland’s comprehensive health registers.

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Video: Susan Bradley, the distinguished child and adolescent psychiatrist who co-founded Toronto’s youth gender clinic in 1975, regrets taking early advice that puberty blockers were reversible

Overwhelming evidence

In her 2013 appeal judgment in re Jamie, Ms Bryant countered the submissions of the public authority with the fact that the evidence before the court in was “overwhelmingly indicative of the [puberty blocker] treatment being a common treatment”.

True, the appeal point on the court’s jurisdiction had not been raised at first instance and so the public authority had had no opportunity to challenge Dr G’s blandishments with its expert psychiatric advice.

In her decision Ms Bryant cited Dr G’s reassuring (but misleading) parallel between the uncharted business of blocking the normal puberty of a trans-identified child and the more established use of these hormone suppression drugs with the quite distinct condition of precocious puberty, where a child’s sexual development begins very early.

Nor did she accept the authority’s argument in the appeal that hormonal intervention for gender distress fails to treat the psychological problem at issue.

“If the condition involves self-identity of a different gender from the biological gender with which one is born, then the treatment can be fairly said to address the imbalance of the patient’s self-identity with some, at least, of its bodily representation,” she said.

“In my view, it is not, as the submissions of the public authority propose, the alteration of an otherwise healthy body to accommodate a psychological imperative, but rather it is the alignment of the body with the person’s self-identity.”

For Ms Bryant, back then as chief justice, blockers were indeed therapeutic.

“The submission, as put [by the authority], suggests a normative state which, in individual cases, cannot be a rational basis for consideration of the complex issues of transsexualism,” she said.

“Underlying the submission is a suggestion that to have a self-identity which departs from the normative (that is the expected physical characteristics of a particular sex) is abnormal and to treat it is a mere accommodation and not therapeutic.

“Once it is accepted that there is no normative state, at least not in every person, then the absolute necessity of aligning the self-identity and the physical characteristics becomes apparent.”

For the public authority, the issue was not simply whether these hormonal interventions were invasive or irreversible with a concomitantly grave risk attending the wrong treatment decision.

In its submissions, the public authority said it was “mindful of the social model of disability” and “concerned about the social consequences of treatment, including the risk of rejection by sections of the community and significant others, and the lack of longitudinal studies about the long-term social consequences—what percentage of people ultimately regret the choices made and what percentage are satisfied with the outcome—to inform decision-making”.⁵

The authority urged the judges “to [prize] the jurisdiction of this court as a monitoring, over-sighting ‘check and balance’” and to continue to supervise paediatric gender medicine. It was not to be.

Ms Bryant told GCN she agreed that, in hindsight, it was unfortunate that the point of law on the court’s jurisdiction was not raised at trial before Ms Dessau, with the public authority calling evidence on the state of the scientific controversy to challenge Dr G.

GCN does not dispute that gender-affirming clinicians believe their interventions benefit vulnerable young people, nor that parents relying on treatment recommendations expect positive outcomes.

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1. Ms Bryant stresses that her rethink relates to the point of law, not the specific facts going to a child’s best interests in any given case.

2. Since re Jamie, gender clinics have prescribed these hormone suppression drugs at an estimated per capita rate higher than at the London-based Tavistock centre, which was the world’s largest youth gender dysphoria service before its closure as a result of Dr Cass’s review. Our per capita rate is an estimate based on figures released under Freedom of Information law; the clinics do not publish basic patient data.

3. We cannot know the identity of this public authority, nor of Dr G, because the court has imposed extraordinary suppression orders in gender dysphoria cases, which reach beyond the privacy of the child and family to anonymise even the state in which the proceedings were run. An unintended effect is that experts cannot be held accountable for false and misleading claims.

Earlier this year, in the re Devin case involving a 12-year-old gender non-conforming boy who was protected from puberty blockers, Family Court Justice Andrew Strum broke with this tradition. He upheld a public interest application from The Australian that the clinic in the case—the Royal Children’s Hospital Melbourne—be identified, along with its former director, paediatrician Dr Michelle Telfer, who was rebuked in the case for giving misleading evidence as an advocate rather than an objective expert witness.

4. In 2013, the “depathologised” term gender dysphoria replaced “gender identity disorder” in the diagnostic manual of mental disorders known as the DSM of the American Psychiatric Association.

5. The true scale of detransition among the young people medicalised in the surge of new referrals since the mid-2010s is unknown, despite gender clinicians relying on dated and flawed studies to suggest that regret is vanishingly rare.