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Garbled account of a clinic shut-down used to discredit a cautious rival
An Australian court hearing a landmark gender dysphoria case was incorrectly told that an international expert had his clinic shut down by his country’s government for unlawful “conversion therapy”, a practice punishable by imprisonment in a growing number of jurisdictions.
The inaccurate claim against the Toronto-based psychologist and researcher, Dr Kenneth Zucker, known for his nuanced approach to treatment, was made during the Family Court’s 2017 re Kelvin case, which was celebrated as a victory for the dogmatic “gender-affirming”model and its medical interventions.
The context was an attempt by the Canberra-based transgender group, A Gender Agender, to discredit potential evidence undermining the confident case in favour of medicalised gender change being put to the court.
The court’s ruling, which freed up access to trans hormone drugs for minors, is in the news again after a detailed critique by legal academic Professor Patrick Parkinson published in the Australian Journal of Family Law.
In re Kelvin, the full Family Court agreed to cut back judicial supervision of under-18 access to irreversible cross-sex hormone treatment, which is promoted as “gender-affirming care” but can leave young people permanently infertile and lacks long-term safety data for this patient group.
The court majority justified its ruling on the basis that the law had to catch up with clear advances in the scientific understanding of gender dysphoria and medical interventions.
Promoters of the child-led gender-affirming approach in Australia include the gender clinic at the Royal Children’s Hospital (RCH) Melbourne, the group A Gender Agenda, and the Australian Human Rights Commission (AHRC), all of which intervened in the re Kelvin case and urged the court to shift more responsibility for treatment decisions from judges to clinicians.
But in his article, Professor Parkinson says:
“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 [gender transition] in the medical and scientific literature.”
In its submissions to the court, the AHRC said: “There is no evidence of any alternative treatments [other than gender-affirming medical interventions] for gender dysphoria.”
This government agency also argued that given the claimed existence of standard treatment protocols, there was “a sufficiently low risk of making the wrong decision about [the child’s capacity to consent to cross-sex hormone treatment.]”
Professor Parkinson points out that the “case stated” material presented to the Family Court did not refer to “the cautious therapeutic approach associated with the work of one of the world’s leading experts, Dr Kenneth Zucker, the longtime editor of Archives of Sexual Behavior.”
Podcast: Psychotherapists Sasha Ayad and Stella O’Malley talk to Ken Zucker
Dr Zucker was clinical lead from 1981 to 2015 at the Gender Identity Service, one of the few centres internationally with a strong research record; the gender service was part of the Centre for Addiction and Mental Health (CAMH), a psychiatric teaching hospital in Toronto.
An international authority on youth gender dysphoria, Dr Zucker has long been a target for activists seeking to maximise youth “autonomy” because of his cautious approach drawing on mainstream developmental psychology and child attachment theory.
Unlike the gender-affirming model, Dr Zucker has been wary of early social transition, in which parents, schools and clinicians go along with a pre-pubertal child’s wish to live out a self-declared opposite-sex identity.
He believes this is itself a psychological and social intervention that may lock-in the distress of gender dysphoria, whereas multiple studies had found that the vast majority of children with early-onset gender dysphoria would outgrow it, without need of any medical treatment. Many of those children reportedly emerged as gay or bisexual adults in healthy bodies.
Non-invasive alternatives to gender-affirming medicalisation of minors have new relevance now that England is considering a more holistic mental health approach to what is presented as gender distress. This follows the decision to close the world’s largest youth gender service, the London-based Tavistock clinic, next year.
Draft plans for post-Tavistock treatment warn clinicians that —
a minor’s opposite-sex identity may be “a transient phase”
social transition is not “a neutral act”
the cautious “watchful waiting” approach is a legitimate clinical option
patients with gender distress and other potentially complicating issues are entitled to “careful therapeutic exploration” and holistic care
Finland and Sweden — which like England carried out systematic reviews of the research literature showing the weak and uncertain evidence base for medical transition of minors — have recently made psychological and social interventions the first-line treatments.
In the re Kelvin test case, the Family Court was urged by A Gender Agenda not to rely on an article by Western Sydney University’s Professor of Paediatrics Dr John Whitehall, who is a critic of gender-affirming medicalisation.
The significance of the Whitehall paper was its argument that the “long-term effects of puberty blockers and cross-sex hormones are not known” and that the risks of these interventions had to take account of research suggesting most children would grow out of gender dysphoria, according to the NSW Department of Family and Community Services.
The department was the only voice in the re Kelvin case pleading for judicial supervision of hormone treatment to be maintained, and it urged the judges to use their capacity to ensure that they would have the benefit of hearing independent expert evidence in a case that was not adversarial.
For the group A Gender Agenda, however, the fact that Dr Whitehall had cited research from the Zucker clinic was a reason for the judges to disregard his paper.
In submissions to the court, lawyers for A Gender Agenda said: “Dr Zucker’s clinic was forced to close by the Canadian government due to its practice of conversion therapy, which is unlawful in Canada; and that ‘therapy’ would have affected the outcomes of Dr Zucker’s research.”
This incorrect claim is footnoted as an “inference available” from the unpublished affidavit of the RCH gender clinic director, Dr Michelle Telfer.
In a 2020 debate about how best to do gender clinic research — published by the journal BMJ Open — Dr Telfer and colleagues from her clinic objected to the use of “data originating from a controversial gender clinic in Toronto that was shut down by Canadian health authorities in 2015.
“A key aim of that clinic [run by Dr Zucker] was to ‘help children feel more comfortable with their biological sex’, which led to suggestions that it was practising ‘conversion therapy’ and questions over the validity of natural history data from this clinic.”
GCN put questions about the Zucker claim to RCH, A Gender Agenda and its pro-bono barristers in the case.
Conversion therapy originally meant an attempt to make gays “straight”, but its use has been extended by gender-affirming activists seemingly to try to shut down standard, exploratory psychotherapy that might result in young people accepting their bodies and easing their distress without risky medical transitions.
Dr Zucker, whose Toronto gender clinic was abruptly closed in 2015 following an activist-driven external review, told GCN that the re Kelvin claim made against him was “nonsense.”
“The Canadian government had nothing to do with the closure of the clinic,” he said. “The ‘complaints’ about the clinic came from local activists.
“That some senior administrators at the hospital [the Centre for Addiction and Mental Health (CAMH)] ceded to these complaints was very disappointing to me and the clinic team.”
There was no Canadian government law against conversion therapy until last year.
Comment: Zucker on conversion therapy, retrofitted
Dr Zucker said: “The idea [of the RCH gender clinic team] that therapy might have affected the developmental course of gender dysphoria is also nonsense, in a general way. Maybe therapy did have an impact on long-term outcomes, but so what?
“One could just as easily say, for example, that the therapeutic approach of a pre-pubertal gendered social transition is also likely to affect the long-term developmental course.”
Dr Zucker was dismissed in 2015 by CAMH without an opportunity to properly review or respond to the external reviewers’ report, which was made public, complete with errors.
One false allegation against him — that he had called a patient “a hairy little vermin” — turned out to be a case of mistaken identity, according to American journalist Jesse Singal, who looked into the affair.
“The review is a markedly unprofessional document that takes many of the worst claims about the [Zucker clinic] at face value — without bothering to check them,” Singal reported in New York Magazine.
On the claim that Dr Zucker and his team had practised unethical “conversion or reparative therapy”, the reviewers said, “We cannot state that the clinic does not practice reparative approaches (if not outright therapies) with respect to influencing gender identity development.”
Singal: “They don’t bother to explain how reparative therapy would even be defined in this context, which seems crucial given the bedrock debate over gender-identity development. The charge is left unresolved — but in a way which still suggests malfeasance — and not treated with an iota of the gravity it deserves.”
Dr Zucker took legal action against the Centre for Addiction and Mental Health and in 2018, his former employer made a public apology and agreed to pay him $586,000 in damages, legal fees and interest.
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In debt to Zucker
Although A Gender Agenda sought to discredit Dr Zucker, the group — and the Family Court — also relied indirectly on his work to support the argument that the science of gender dysphoria had made demonstrable advances.
Citing oral argument from A Gender Agenda’s senior counsel, Kristen Walker QC, the court majority agreed it was “significant” that the most recent diagnostic manual of psychiatry (known as DSM-V) had depathologised the condition of “gender identity disorder” by renaming it “gender dysphoria.”
“[The new term] focusses very much on the dysphoria as the disorder to be treated rather than the issue of identity, and identity itself is no longer regarded as any kind of pathology,” Ms Walker, who is now a judge, told the court.
It was Dr Zucker who led the DSM-V Work Group on Sexual and Gender Identity Disorders which presided over this depathologising of diagnostic terminology.
The court also accepted Ms Walker’s argument that the 7th edition Standards of Care from the World Professional Association for Transgender Health (WPATH) was another token of a field in which the science had made progress.
Dr Zucker was an important contributor to this WPATH document.
The court noted Ms Walker’s special emphasis on the emergence of standards of care specific to Australia, with a draft version of this RCH document being appended to Dr Telfer’s affidavit.
Standards: From the 2018 RCH position statement in the Medical Journal of Australia
A year after the re Kelvin ruling, the Medical Journal of Australia published a peer reviewed version of the RCH “Australian Standards of Care”, with the authors stating that, “The scarcity of high-quality published evidence on the topic prohibited the assessment of level (and quality) of evidence for these recommendations.”
The RCH standards of care were considered for inclusion in the online portal Australian Clinical Practice Guidelines run by the National Health and Medical Research Council (NHMRC) but did not qualify.
An NHMRC spokeswoman said: “At the screening stage it was determined that the [RCH standards] did not include a funding statement, an evidence base for the recommendations or information about conflict of interest, and that it would not meet the portal selection criteria, so a full assessment was not carried out.”
As for WPATH, its latest standards of care were launched in September this year with lower minimum ages for treatment — 14 for opposite-sex hormones, 15 for removal of breasts, 17 for testicles — followed by an abrupt “correction” eliminating all age minimums amid confusion and competing explanations.
The WPATH standards introduce a new chapter on adolescent care, noting “a sharp increase” in teenagers seeking treatment, but claiming that a systematic review was “not possible” because of the sparse medical literature.
The document also devotes a fresh chapter to “eunuchs”, saying that castration may be “medically necessary gender-affirming care” for adults. However, this advice is offered for adult patients only.
“Due to the lack of research into the treatment of children who may identify as eunuchs, we refrain from making specific suggestions,” WPATH says.
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 gender clinic treatment was based on the “best available medical evidence”, in line with “international best practice”, and followed “strict clinical governance standards”.