Judges warned on trans protocols amid new research on puberty blockers and hormone treatment effects
Family Court judges are being urged to consider new evidence of the effects of hormone treatments and puberty blockers on young Australians that refutes a gender-affirming model of care.
Family Court judges have been urged to consider new evidence at odds with current legal frameworks governing cases of gender-dysphoric children, or risk contributing to the “worst medical scandal in 100 years”.
A legal paper, compiled by top Victorian family law barrister Belle Lane and delivered to judges of the Federal Circuit and Family Court of Australia last month, argues fresh research into the effects of hormone treatments and puberty blockers on young Australians refutes older research touting a gender-affirming model of care.
In light of this, Ms Lane argues, the court must reassess how scientific advancements should apply to the family law system.
“The evidence base around what is called ‘gender-affirming treatment’ has moved rapidly and much more is known about the asserted benefits of the medical pathway and risks,” Ms Lane writes, adding: “Alternative treatment pathways have returned to prominence.”
The paper documents in forensic detail a lack of clinical consensus on the concept of gender dysphoria, the diagnostic process or even whether a diagnosis is required to begin medical treatment, and the benefits, risks and outcome of the medical pathway.
It tracks the development of the Australian “standards of care” for the treatment of gender dysphoria, authored by prominent Royal Children’s Hospital Melbourne pediatrician Michelle Telfer, as being based upon the so-called “gold standard” Dutch model which was based on an extraordinarily small sample of patients, which has now been critically reassessed in several countries, prompting greater safeguards for adolescents.
“There are significant concerns about quality and applicability of the Dutch studies to the current cohort of children presenting at gender clinics,” Ms Lane writes. “Many of the children have complex mental health, neurodiversity, and adverse childhood experiences. Most of these children would have been excluded under the original Dutch protocol, however now almost all the safeguards of the original Dutch protocols have been removed. Treatment is now based on a child’s subjective identity in a child-led process, a situation unheard of in other areas of medicine.
“The Dutch studies would not meet the standards of evidence-based medicine today.
“The asserted positive results of the Dutch studies are questioned and have not been able to be repeated in subsequent studies, yet the gender-affirming treatment pathway remains. Over time, awareness of risks of harm of puberty blockers, cross-sex hormones and surgery have increased and underlying assumptions such as puberty blockers acting as a pause have been discredited.”
The paper is set to be presented and made public to all members of the Australian family law profession in coming months, after Ms Lane presents it to the Victorian Bar association.
The paper argues the legal industry should reconsider treating the case of Re Kelvin (2017) as the authority in matters of gender dysphoria in children.
Re Kelvin was a landmark case finding that when there is no dispute between the child, their parents and their treating doctors, hormone treatment could be prescribed, eliminating the need to apply to the court for approval. As a result, the adversarial process of testing evidence rarely takes place in the Family Court.
“The court has been left without evidence of the raging international and national debate about the evidence base for gender-affirming treatment,” Ms Lane writes in her paper.
University of Queensland emeritus professor of law Patrick Parkinson, who is quoted in the paper, said the court presiding over Re Kelvin did not appropriately consider evidence of the implications of a legal framework supporting gender-affirming care.
“The whole basis on which the Family Court has said ‘we don’t need to be involved in this anymore’ is now falling like a stack of cards,” he said. “Furthermore, in Re Kelvin, which is the leading case, they never actually looked at the medical evidence.”
Mr Parkinson said courts should not be approving “this sort of treatment without hearing both sides of that medical argument.”
He said the courts have long been told “things which aren’t actually true” in regards to puberty blockers and hormone treatments on young Australians.
“They‘ve been told there was no controversy about this stuff,” he said.
Courts have been told for years that puberty blockers are entirely reversible, and they aren’t. They are reversible in part ... but they were never authorised for this purpose.
“Critically, we also do not know what effect this has on brain development at all, given that we know adolescence is a hugely important time for brain development.”
Cautioning against a “massive liability bill” if Australia continues on its current path, Mr Parkinson said the country could be on the brink of the “worst medical scandal in 100 years.”
“I really do (think so) and the and the liability risk is enormous,” he said.
