Lawyers zone in on transgender drug therapy

A new paper, written by a doctor and a lawyer, has questioned the safety of puberty blockers for transgender youth.

Coloured flares are seen during the lesbian, gay, bisexual and transgender Pride Parade in Pristina, Kosovo, on October 10, 2019 (Photo by Armend NIMANI / AFP)

 

EDITORIAL: We will not shy away from uncomfortable topics that deserve attention. This is particularly so when the health and wellbeing of vulnerable children are at stake.

Children who identify as transgender and their parents should be warned by clinics that treatment to make their bodies seem more like the opposite sex is still experimental, according to one of Australia’s top class action lawyers and a doctor who is ­an expert in legal medicine.

A new paper in the Journal of Law and Medicine, written by leading medical negligence lawyer Bill Madden and professor of obstetrics and gynaecology Mike O’Connor, also argues that judges have wrongly accepted the assertion of doctors that ­puberty blockers are safe and ­reversible for trans youth.

In a series of confidential cases, the Family Court has given up much of its role in scrutinising transgender treatment decisions for minors, handing power to clinicians and parents who have celebrated this as a victory for youth rights.

Puberty blocker drugs are given to children as young as 10, with clinicians insisting that putting on hold “distressing” sexual development — breasts, for ­example, or lowering of the voice — simply creates a no-regrets “breathing space” for gender identity to be explored.

But the medico-legal paper by Professor O’Connor and Mr Madden points to concerns about the effect of these drugs on cognitive function, including memory and IQ, during a critical window of development, with teens on puberty blockers for six to seven years at risk of falling behind peers psychologically and physically, and struggling to find their place in the world.

The paper runs through the risks of cross-sex hormones, begun around 16, including ­infertility, blood clots, stroke, mood swings and a decline in “good” cholesterol, and says understanding the “experimental” aspects of hormonal treatment beginning with blockers is necessary for informed consent.

Critics of the medicalised model of trans youth also cite evidence that almost all children who start on supposedly reversible blocker drugs go on to irreversible cross-sex hormones, leaving them infertile, incapable of orgasm and permanently dependent on the health system.

In rare cases with minors, a diagnosis of gender dysphoria, or ­severe distress with biological sex, also leads to surgery.

Mr Madden, from law firm Carroll & O’Dea, is a closely followed commentator on medico-legal issues after many years with class action firm Slater & Gordon. Professor O’Connor has a masters in health law and serves as an expert medical witness. Both have appointments at Western Sydney University

Negligence risk

University of Queensland law dean Patrick Parkinson, who has expressed concerns about the pro-trans “affirmative” approach to treatment, said the new paper raised the spectre of medical negligence litigation.

“Are all of those risks being spelled out in words of one ­syllable to parents and children before prescribing puberty blockers, let alone cross-sex hormones?,” he asked.

“Hospital ethics committees (overseeing gender clinics) and medical insurers need to pay very careful attention to the risks both of misdiagnosis and the proposed treatment.”

Slater & Gordon principal lawyer Anne Shortall, a nurse before retraining, said medical negligence might be shown if an expert in gender dysphoria testified that a diagnosis was wrong or unreasonable, and unnecessary treatment had done physical or psychological harm.

A decade ago she won a confidential settlement for a man who underwent gender change at Melbourne’s original Monash Gender Dysphoria Clinic who in effect told her: “I have just the same amount of psychological distress as before (transition) and now I’ve got all these physical (complications from transition) as well.”

Complaints of hasty hormone treatment and surgery, and a failure to screen for serious psychiatric disorders almost led to the closure of that clinic in 2009.

Its Monash Health successor is Australia’s busiest adult gender clinic and was given a special funding injection of $6.4 million in 2016 by Victoria’s Andrews government to deal with galloping demand.

Youth gender clinics in the developed world are reporting a wave of atypical dysphoria patients: troubled teenagers, disproportionately female, who suddenly declare trans status on top of pre-existing issues including mental health problems, autism spectrum disorder, awkward same-sex attraction and family trauma.

Typically they have no childhood history of gender confusion. Some clinicians and parents believe social media that glamorises trans identity and peer influence drive this trend.

Claims under scrutiny

Swedish child and adolescent psychiatrist Christopher Gillberg, a world authority on autism, runs an international research group which is attempting to review all the evidence supposed to justify risky medical treatment of trans-identifying youth.

He said “experimental” puberty blocker drug treatment should be immediately stopped with these rapid-onset dysphoric teenagers until there was solid long-term research about its risks and benefits.

These hormone suppression drugs have been used for prostate cancer, endometriosis and to pause “precocious puberty” in children as young as 6 to 8 years of age, meaning the blockers are withdrawn as the child attains the age of puberty for peers.

Western Sydney University’s professor of paediatrics John Whitehall has said the use of these drugs with trans-identifying teenagers is “experimental”, and Oxford University’s professor of evidence-based medicine Carl Heneghan has said it is tantamount to “an unregulated live experiment on children.”

Gender clinicians who follow the confident, pro-trans “affirmative” model argue that not to offer medical treatment itself does harm, pushing up the risk of depression, anxiety and suicide.

The contentious 2018 treatment guidelines issued by the youth gender clinic at the Royal Children’s Hospital in Melbourne — and promoted as “the world’s most progressive” — claim that puberty blockers are reversible, cite bone density as “the main concern,” and do not discuss possible effects on the brain.

In 2015 clinic director and paediatrician Michelle Telfer told GQ magazine that puberty blockers “don’t stop growth generally, or your brain from maturing emotionally and cognitively, they just stop the sexual characteristics from developing.”

Growing brains

As part of a long-term study launched in 2017, the RCH clinic has advertised a PhD project under the title “Influence of pubertal hormones on brain development.”

It said the project, part of the Trans20 study, would “seek to address specific questions and hypotheses relating to the role of sex hormones on cognition during adolescence, and will at the same time provide important insights on the cognitive effects of using puberty blocker medication in young transgender individuals.”

RCH did not reply when asked what information parents and children were given about the risks, benefits and unknowns of puberty blocker use.

In a 2013 test case the Family Court considered a puberty blocker treatment request for a 10-year-old boy, given the pseudonym Jamie, who began to identify as a girl at pre-school age. The court ruled it no longer had to approve administration of puberty blockers to minors unable to consent themselves, unless there was conflict about the merits of treatment. Clinicians and parents in favour of treatment had argued the need for court approval was costly, damaging for the child’s mental health and redundant, because the judges had never declined to approve medical intervention.

In her decision, chief justice Diana Bryant relied on expert opinion to conclude that puberty blocker treatment was “reversible (and) not attended by grave risk if a wrong decision is made.”

She said: “Previously some clinicians felt it was important for children to experience pubertal development of their own biological sex, so that they knew what it was really like to be for example ‘a boy’, before any changes were made (but) at the major centres now treating such children, (this is) no longer considered necessary or appropriate in circumstances where a child has a strong and persistent conviction that they are of the opposite gender.”

An endocrinologist, referred to as Dr G, told the court he “saw no problems” with puberty blocking: “It is fully reversible. It has no side-effects.” The Human Rights Commission intervened in the case and argued there were “no alternative treatments available” for dysphoria.

The court suppressed the names of the doctors who gave evidence, as well as the hospital, the state and the file number.

Lessons of “detransition”

Young adult “detransitioners” who come to decide gender change was an illusion that solved nothing and who say medical transition was harmful have been sharing non-invasive means — such as psychotherapy and cognitive behaviour therapy — to cope with lingering discomfort in their bodies.

Meanwhile, a mother’s legal campaign to stop a London gender clinic giving puberty blocker drugs to her 15-year-old autistic daughter may force Australian hospitals to be more cautious.

Professor Parkinson said the crowd-funded litigation against the NHS Tavistock youth gender clinic would be “extremely significant” for Australia if it required doctors to give more detailed, up-to-date warnings about the risks and unknowns of medically assisted transitioning.

“If we get more clarity about what kids do need to understand — the full range of medical risks — before they can consent, that will probably make hospitals much more cautious about treatment,” he said.

The autistic girl’s mother has been joined in the case by a former psychiatric nurse at the clinic, Sue Evans, who became alarmed when she saw children were rapidly referred for hormone treatment without proper assessment of their full medical history.

The campaign has raised more than £12,000 ($22,500) towards legal costs with a target of £50,000.

Ms Evans said the plan was to “press ahead with the (Tavistock) litigation and hope that it raises sufficient publicity and interest that people want to donate to the cause.”

People pledging money can leave comments on the crowdfunding webpage.

“Karen” commented: “It’s horrendous that children are being fast tracked towards sterilisation when adult women in their 30s are being refused endometriosis treatment on the grounds that it would render them sterile, because their doctors don’t believe they know their own minds.”

Fix the mind

A psychiatric nurse said: “I am aghast that the gender clinics have abandoned talk therapy and underlying issues. This is not what we were trained to do. A problem with the mind deserves more exploration. It does not mean you fix the body to fix the mind. We don’t do this to anorexics.”

One parent said: “We are in the middle of this with our teen — who has (autism spectrum disorder) and suffers from mental health difficulties — and it’s so concerning. It feels like we can’t trust professionals to first do no harm. These are vulnerable kids.”

Australia and England share the common law test to decide whether minors can consent to medical treatment themselves. Known as Gillick competence, the test is whether the child has “sufficient understanding and intelligence to enable him or her to fully understand what is proposed.”

The trend in trans youth cases in the Family Court has been for the judges to delegate to clinicians the decision whether or not a child is Gillick competent.

Australian lawyer and writer Helen Dale has said the Tavistock litigation, if it went ahead, would test Gillick competence “to absolute destruction”.

Paul Conrathe of Sinclairslaw, the solicitor for Ms Evans and the autistic girl’s mother, said the Tavistock case would argue that decisions about “experimental (trans) treatment with lifelong consequences, many of which are unknown” required case-by-case vetting in the courts.

“Gillick is not the correct test to apply to children undergoing this type of experimental treatment,” he said.

“The prescription of puberty blockers and cross-sex hormones to children under the age of 18, without an order of the court, is unlawful. This is akin to sterilisation.”

Consent dilemma

Professor Parkinson said the Gillick test was “vague” but workable enough in relatively routine matters such as an appendectomy.

The issue in Gillick, an English case, was whether doctors could prescribe the pill to girls under 16 without parental knowledge or consent. The answer from the House of Lords was a conditional ‘yes.’

But this was “light years away” from allowing a 15-year-old girl who believed she was a boy to undergo a double mastectomy or consent to treatment that would make her infertile and a lifelong medical patient, Professor Parkinson said.

In a new article for the Swedish press, child and adolescent psychiatrist Sven Roman, Professor Gillberg and seven other clinicians highlight the fact that the brain is “not fully developed until about 25 years of age.”

“It is completely unreasonable for children to be able to make decisions on this issue (of trans medical treatment),” they said.

“It is common knowledge and realistic that children are not mature enough to take responsibility for or decide on minor life issues such as voting in general elections, applying for a driver’s license or shopping at the local liquor store.

“Sterilisation (for women) is comparable to gender correction (with hormones) and is performed at the earliest from the age of 25.”

In Australia, the law does not set a minimum age for a woman who wants no more children to be sterilised by tubal ligation, according to Claire Vissenga, chief executive of Family Planning Victoria.

But she said there were “very few” doctors who would agree to do it for a woman under 30. Anecdotally, the reason seemed to be belief that younger women might later change their mind and regret it.

Research brief

Meanwhile in the US, Republican congressman Chip Roy has called for a federal study into trans medical treatment of minors, including their mental health and suicide rates, as well as how many children with dysphoria simply grow out of it if given time.

His intervention follows a bitter family law dispute in Texas over a 7-year-old boy whose mother Anne Georgulas says he is a trans girl and who wants to act on gender clinic advice to “affirm” this identity and approve “social transition” with a new name, pronouns, hair and clothes for her daughter.

The father Jeffrey Younger opposes this, urges the more cautious “watchful waiting” approach and believes the child’s gender confusion will resolve itself if he is left alone. Although the case was not explicitly about medical transition, the mother gave evidence she realised that social transition was usually followed by puberty blockers and cross-sex hormones.

After a jury found in favour of the mother, the judge overruled this, opting for the parents to have joint responsibility for the child.

Mr Roy, a lawyer and a Texas Republican, has written to US federal attorney-general William Barr and the National Institutes of Health urging “a behavioural analysis study to determine the societal impacts” of trans medical treatment of the young.

“Many 7-year-olds think they can fly, they believe a fairy comes into their rooms at night to trade money for a lost tooth, and they often eat dirt. It is unthinkable that parents and medical professionals would act on the whimsy of a minor child to take life-changing, irreversible steps to alter his or her identity,” he wrote.

He stressed “how little we know about the long-term impact of forced medical treatments for gender dysphoria is young children.”