Transgender medical critics get their day in court

In a potential test case on underage transgender medical treatments, a mother is expected to argue doctors broke the law when giving opposite-sex hormone drugs to her son.

Gender casts an uncertain shadow over life for some teens.

 

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.

In a potential test case on underage transgender medical treatments, a mother is expected to argue doctors broke the law when giving the green light to opposite-sex hormone drugs for her son.

Former Family Court chief justice Diana Bryant said she believed it was the first time the court had agreed to hear expert evidence critical of the pro-trans “affirmative” treatment model that dominates children’s hospital gender clinics.

In the case re Imogen, Justice Garry Watts recently decided to allow the mother, Mrs G, to call evidence from Dr B, a psychiatrist who has more than 20 years’ experience, and questions the safety and benefit of gender clinic medical treatments.

Former Federal Circuit Court judge Stuart Lindsay said it was possible the case might develop into a challenge to the Family Court’s landmark 2017 re Kelvin ruling, which is celebrated by gender clinics, the trans lobby and human rights lawyers for making it easier, faster and cheaper for under-18s to get irreversible cross-sex hormones by cutting back judicial oversight of treatment decisions.

In re Kelvin, the full court cited the justification of “advances in medical science in treating and understanding gender dysphoria (distress at feeling ‘born in the wrong body’)” and relied on expert evidence from paediatrician Michelle Telfer, director of Australia’s biggest gender clinic at the Royal Children’s Hospital in Melbourne.

“The way (re Kelvin) was conducted, we ended up only hearing from one side of a very keen scientific and medical controversy,” Mr Lindsay said.

In re Imogen, a pseudonym for the 16-year-old who was born male, the mother’s psychiatric expert Dr B claims the gender clinic regime of puberty blocker drugs, opposite-sex hormones and sometimes surgery for minors who present with gender issues “can gloss over deeper and more complex relational and psychological difficulties”, making non-invasive psychotherapy the better response.

“Neither courts or parents should approve non-therapeutic (gender clinic) treatment likely to result in infertility and other long-term harm on behalf of a child lacking capacity to consent,” the judge was told by an unidentified watchdog group of international health and medical practitioners unsuccessfully seeking to join the case on the mother’s side.

The group pointed out that consent was not a defence to assault charges against doctors if a child was not in truth competent under the common law Gillick rule, which allows medical interventions with so-called “mature minors” even if parents are opposed.

In April 2019 and with her father’s support, Imogen started on puberty blocker drugs, which suppress testosterone, and four months later her treating psychiatrist, Dr C, ruled her competent to consent to the opposite-sex hormone drug oestrogen.

The risks of this combination of hormone drugs include infertility, and Mrs G says oestrogen was approved without her consent, contrary to the law as laid down by the judges in re Kelvin, where there was no dispute between parents.

The rationale of “gender affirming” clinicians is to arrest the “wrong” puberty and refashion the body in harmony with a trans “gender identity” at odds with birth sex. Children as young as three are regarded as experts about this inner sense of identity, which clinicians “affirm”.

Gender clinics insist their treatments are “lifesaving”, based on the “best available evidence”, and suggest they prevent suicide in a “transphobic” society, but all these claims are contested.

In re Imogen, the Family Court for the first time has acknowledged the international debate about youth gender clinics.

In a preliminary decision about the wish of the watchdog group to intervene Justice Watts notes, without expressing a view, concerns about young adult “detransitioners” who regret medical treatment, evidence that gender clinics have falsely promoted puberty blockers as reversible, the possible role of “social contagion” in teenage trans declarations, the dangers of “aggressive trans activism”, a failure of media reporting, and “persecution” of parents and practitioners worried about child welfare.

Today I discovered that I was accused of hate by shadow environment minister Lloyd Russell-Moyle in the pages of @tribunemagazine. He claimed I was ‘using’ my experiences of sexual assault and domestic violence to ‘discriminate’ against trans people. 1/9

— J.K. Rowling (@jk_rowling) June 28, 2020

In the UK, litigation against the government’s Tavistock youth gender clinic is thought to have played a role in the Minister for Women and Equalities, Liz Truss, promising legislative change to guarantee trans adult rights while ensuring that still maturing under-18s are “protected from making decisions that are irreversible about their bodies that they could possibly regret in the future”.

Ms Bryant said it was possible that re Imogen could develop into a test case at odds with re Kelvin, but the dispute might simply be resolved on its own facts.

Prominent medical negligence lawyer Bill Madden of Carroll & O’Dea said the case “may well create an important decision, but it is likely that the court’s focus will be on the particular child, Imogen”, leaving unresolved the wider medical debate about treatment.

Ms Bryant said the court’s order that Imogen co-operate and be interviewed by her mother’s chosen psychiatric expert, Dr B, was “unusual but understandable” in order to get the best evidence possible.

Dr B wanted to check whether Imogen’s psychiatrist, Dr C, was correct to judge her competent to consent to treatment under the Gillick rule.

Dr B also was concerned about proper diagnosis of any underlying mental health issues for Imogen. The watchdog group suggested investigation of possible autism spectrum disorder.

In unreported 2018 remarks to RCH alumni, Dr Telfer recounted the media, political and legal campaign to cut back Family Court oversight of trans youth medical decisions, which she saw as a costly, risky and discriminatory obstacle to lifesaving treatment, and unnecessary because the judges had never vetoed it.

“We had success with getting positive media coverage and the (then federal) Attorney-General (George Brandis) appeared on our side, but with a Liberal government housing a vocal and dominant right faction — think George Christensen, Cory Bernardi and Tony Abbott — we had no success in achieving any tangible, practical change,” she said.

"Asperger’s expert Tony Attwood calls for a searching inquiry into dramatic overrepresentation of teens with autism in gender clinics. In Australia's busiest clinic, 45 per cent of 383 patients, mostly girls around 14, showed #autism features." @australianhttps://t.co/Otp4Hw6YPw

— Bernard Lane (@Bernard_Lane) June 3, 2020

Dr Telfer credited “a clever group of lawyers in Sydney” for coming up with the “case stated” method used by the five judge panel of the Family Court to hear re Kelvin.

Mr Lindsay said both these features of the case were unusual, and added that although the full court acknowledged that High Court authority made it “inappropriate” to proceed by case stated, the five judges went ahead anyway.

With several institutions backing RCH, only the NSW Department of Family and Community Services opposed a winding back of Family Court supervision.

Dr Telfer told hospital alumni she “experienced the schadenfreude of watching the barrister for our opposition (NSW) get eaten alive by the five judges who had been through too many of these individual cases to count”.

The NSW government’s barrister cited evidence critical of gender clinic medical treatments from Western Sydney University’s professor of paediatrics John Whitehall — who is also a well-known Christian — published in the conservative magazine Quadrant.

“(The barrister) was interrupted 20 seconds into his evidence by Justice Ryan, ‘Mr X, the Quadrant magazine is hardly a peer reviewed medical journal now is it?’,” Dr Telfer said.

“(The barrister) moved on to argue that the (Family Court) should remain in place to protect these children, criticising ‘doctors like me’ by saying that we didn’t have the children’s best interests at heart, that we were driven by our own political agenda and couldn’t be trusted.

“Justice Thackeray piped up, looking flabbergasted, ‘Mr X, do you really think these parents would rather trust a barrister like you than the Royal Children’s Hospital’?”

In the re Kelvin judgment, the court disregarded Professor Whitehall’s medical evidence, and misspelt his name in a one-line acknowledgement that his writing was among material put to the trial judge.

Mr Lindsay said the Australian Human Rights Commission and other bodies with “a phalanx of well-paid silks (barristers)” had backed RCH in the case, “all furiously in agreement about these (hormonal interventions) being the best and the only appropriate treatments.”

He asked why the Family Court had not appointed an independent barrister to make sure the arguments in favour of medical treatment were scrutinised and tested.

@RCHMelbourne is proud to deliver a Gender Service recognised as one of the world’s best.

Trans and gender diverse young people deserve nothing less.https://t.co/9E9O9OtG6M

— Michelle Telfer (@michelle_telfer) December 13, 2019

When judgment in re Kelvin was handed down in November 2017, the then NSW Minister for Family and Community Services Pru Goward said: “I have great misgivings in the treatment of gender dysphoria in children and young people and feel we need to be very careful in the way this is managed”.

“Kelvin” was born female in 2000, and in his case there was no dispute between parents and treating doctors about the wisdom of going ahead with testosterone drugs.

Mr Lindsay said the way that re Kelvin was heard — as a case stated based on hypothetical facts — made it difficult for a challenge to revisit the issues, although this procedural flaw might attract the interest of the High Court.

Justice Watts, who was involved in an earlier stage of the re Kelvin litigation, invited the human rights commission to intervene in the re Imogen case.

In another trans-celebrated gender dysphoria landmark, the 2013 re Jamie case, the court ruled its judges no longer had to be asked for approval before under-18s were given puberty blocker drugs.

In this case, involving a 10-year-old born male who identified as a girl, there was also no dispute about treatment between parents or clinicians.

An endocrinologist, Dr G, gave evidence that in his experience puberty blockers had “never caused any unwanted side-effects”.

The court accepted these drugs were completely reversible, and noted the claim of the human rights commission that “the consequences of making a wrong decision (to give blockers) are not grave”.

Puberty often provokes anxieties about the body, sexual roles, procreation. Mental health services need to help kids tolerate these anxieties rather than medicalising them in an attempt to eradicate confusion provoked by a natural process. Please support @sueevansprotect

— Marcus Evans (@marcusevanspsyc) December 28, 2019

Dr G gave evidence the puberty blocker drugs would “slow the process of maturation and the growth plates of the long bones” but “bone mineral density will increase during treatment”.

It’s not clear from the judgment if this means an increase in bone density but at a slower rate than would have been the case with natural puberty.

Gender clinics have acknowledged the risk of low bone density with the possibility of osteoporosis in later life but critics of this treatment say its known and unknown physical and psychological risks have been underplayed.

In a 2016 gender treatment case, re Darryl, involving a 17-year-old born female, psychiatrist Dr N gave evidence that until about the age of 25 a young person’s brain was not developed enough to “understand fully” the treatment on offer.

On this basis, Dr N said “no child could ever be found by the court to be Gillick competent”, although she believed Darryl was “capable of giving fully informed consent” to opposite-sex hormones, Justice Peter Tree said in his decision.

The judge said the key case, re Jamie, offered “two, and perhaps three conflicting answers” about the court’s role when a child’s Gillick competence was in dispute.

Ms Bryant, who was one of the three judges in re Jamie, disagreed, saying that, properly understood, the approach of all three was consistent.

Mr Lindsay said the gender dysphoria cases such as re Kelvin involved unusual secrecy, even for the Family Court, meaning parties that might have offered contrary medical evidence were unlikely to know about the proceedings.

In 2013, permission was given for “Jamie” to be identified publicly, and she has featured with Dr Telfer in media coverage, chiefly by the ABC, promoting trans rights and the benefits of gender clinic treatments.

The Australian put questions to RCH, Dr Telfer and La Trobe University law dean Fiona Kelly, a prominent figure in gender dysphoria law, but none replied.

Professor Kelly had argued the average wait of eight months between recommendation of opposite-sex hormone treatment and Family Court approval affected the “emotional wellbeing” of minors, and Australia was alone in imposing such an obstacle.