Three significant Australian legal cases took out of the court’s hands the decision of whether a young person could be prescribed gender-affirming medicine.
The Full Court in Re Jamie, in 2013, established parents could consent to their children taking puberty blockers without court authorisation, finding the treatment was reversible.
In Re Kelvin, four years later, the Full Court removed the requirement for court authorisation of the provision of cross-sex hormones.
In 2020, a single judge in Re Imogen clarified that while Re Kelvin relaxed the need for court oversight, authorisation was mandatory if there was a dispute over treatment.
Now it appears another court case could flip the treatment on its head again. Could it be that a judge – not a doctor – is about to change the face of gender medicine in Australia?
The forensic 400-paragraph judgment of the Family Court’s Justice Andrew Strum, Re Devin, has made waves among lawyers, judges, pediatricians and psychologists after he effectively stripped a mother of custody of her 12-year-old child.
Strum found the mother, who wanted her child to be prescribed puberty blockers, attempted to use the child’s gender fluidity to damage their relationship with the father, who opposed treatment. He took aim at the “oddly binary” Australian Standards of Care and Treatment Guidelines – authored by pediatrician Michelle Telfer – that “affirm unreservedly” any child that raises concerns over their gender.
Strum suggested Telfer – who initially was anonymised in the judgment but named after The Australian successfully fought a statutory prohibition – gave “misleading” evidence in support of the mother, contrary to her obligations as an expert witness.
He criticised the Royal Children’s Hospital Melbourne – at which Telfer is chief of medicine – for identifying the child as gender dysphoric only when court proceedings began and ultimately rejected the diagnosis.
And, significantly, he said the Full Court might reconsider categorising puberty blockers as reversible.
“The Full Court may, in the future, see fit to reconsider the categorisation in Re Jamie of Stage 1 treatment (puberty blockers) as being reversible and not attended by grave risk if a wrong decision is made, such as to fall within the wide ambit of parental responsibility and not require court authorisation,” he wrote.
“That is a fact (and a relevant one), not a criticism.”
Former Family Court judge Steven Strickland sat on the Full Court in both Jamie and Kelvin.
At the time of Jamie, he says, there was limited and specific evidence about the consequences of treatment for gender dysphoria.
If the case were to be decided today with the vast evidence that was available to Strum, Strickland says, the outcome “may have been different”.
“What’s now pretty clear from the evidence is that even blockers are risky,” he says. “There are things that can go wrong and impacts that can occur with the child. The other medical evidence was the other way in Re Jamie.”
Strickland is clear that he is “perfectly satisfied” with the decisions made at the time because they were made on the basis of the evidence before the court.
“A judge can only reach a decision on the basis of the evidence before him or her, because a judge is not a medical expert of course,” he says. “Very much so in this area, the judge will be very reliant upon the expert evidence before him or her.”
He says Strum “had a significant or a substantial body of expert evidence” before him that looked “at this matter from both sides”.
“That’s what struck me and that expansive evidence before Justice Strum allowed him, I think, to explore the issue in greater detail than had been previously been able to be done and allowed him to make his decision far easier,” he says.
“His decision wasn’t easy, no decision’s easy, but it gave him food for thought from both sides of the argument.”
Strum’s and Strickland’s comments come against an internationally changing landscape for the way children who express gender incongruence are treated medically.
In a landmark report released in April 2024, British pediatrician Hilary Cass endorsed a fundamental shift in approach away from medical intervention towards a holistic model that addressed other mental health problems children questioning their gender might have.
As a result of her review, the English National Health Service moved to restrict the prescription of puberty blockers to clinical trials, mirroring growing doubts over the safety and clinical effectiveness of the hormone drugs in a host of European countries.
This week, the US Supreme Court upheld a Tennessee ban on youth gender-affirming care.
Chief Justice John Roberts, in his majority decision, said the ruling hinged on the bench’s finding that the law did not violate the equal protection clause, not an ideological opposition to transgender rights.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound,” Roberts wrote. He continued: “The court’s role is … only to ensure that the law does not violate equal protection guarantees. It does not.
“Questions regarding the law’s policy are thus appropriately left to the people, their elected representatives and the democratic process.
A dissent from the court’s three liberal justices, read aloud by Sonia Sotomayor, said: “The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review.
“By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims. In sadness, I dissent.”
The state government also ordered an immediate statewide freeze on hormone therapy for new patients under the age of 18.
In January Federal Health Minister Mark Butler announced Labor’s plan to have the National Health and Medical Research Council and the Therapeutic Goods Administration conduct a two-year review into gender therapies and develop new national guidelines.
When The Australian first broke the story on Strum’s judgment in April, Butler told reporters he had been “thinking quite a lot about this issue over the summer” and keeping a close eye on changing attitudes overseas.
“After the Cass review, I asked the National Health and Medical Research Council to start a formal review of the clinical guidelines around gender-affirming care. This is a body that has been doing this work for decades. It has a statutory charter to do it,” he said.
Strickland says he believes Strum’s decision will have a “significant impact” on the results of the NHRMC review.
“Justice Strum really said a lot of things about the guidelines and not necessarily complimentary or not necessarily supportive, so I would be extremely surprised if Justice Strum’s judgment isn’t front and centre in that review,” he tells Inquirer.
He says Strum’s decision is a clear example of how the medical evidence relating to gender dysphoria – particularly in young people – has changed across time.
“The medical evidence in relation to gender dysphoria has changed over the years, and so when you look at that continuum of cases and now you come to Justice Strum’s decision, you can see through that how the medical evidence has changed because there were a plethora of expert medical people who gave evidence before Justice Strum,” he says.
“If you looked at some of the earlier cases there wasn’t that range of medical evidence before the court.”
Ultimately, Strickland says Strum’s “excellent” decision should make clinicians “sit up and think more about what they’re doing and how they approach it”.
He says: “Here we have a decision by a judge which said, ‘Well no, I don’t agree with the diagnosis of gender dysphoria. But and even if I did, I wouldn’t allow the treatment of the child in the way that was being proposed because of the risks to their child that the evidence demonstrated.’ ”
Government’s inexorable growth is killing incentive
One of things we teach our children is that there is difference between wants and needs. Too many politicians have forgotten this lesson and are happy to spend other people’s money.
Ex-PM fires potshots in the battle of ideas
Paul Keating’s views on security are heard widely. But it’s only reasonable to expect he will be challenged on them.