Australia’s Largest Christian News Site

Whether he realised it or not, Federal Court judge Peter Tree has laid the responsibility for the continued use of puberty blockers and cross-sex hormones on children — despite increasing international caution — firmly at the feet of the New South Wales Government. 

Justice Tree recently handed down his decision in the case of Re Ash, a case involving a biological girl aged 16 years who wanted to access testosterone to make her physical appearance reflect that of her identified gender.  

While ostensibly a case about which of Ash’s parents — now separated — should have parental responsibility for Ash, the case focused in on the administration of cross-sex hormones because Ash’s parents differed on whether this would be in Ash’s best interests.  

Each side presented evidence from doctors and psychiatrists who fundamentally disagreed about whether to prescribe testosterone to Ash, which is unsurprising in times when even medicine can be a highly politicised profession. 

Model of Care

At the outset of the litigation, Justice Tree told the parties that he “would not permit the trial to be run as a kind of Royal Commission into the administration of cross-sex hormones to adolescents” and made it clear that his decision was specifically focused on the particular situation of Ash, and Ash’s best interests.  

Ultimately, Justice Tree decided that the parent who agreed with Ash’s gender transition should have sole custody of Ash, including the authority to consent to the administration of testosterone to Ash.

While the case is of high importance to Ash and their family, it has limited legal significance because, as Justice Tree wrote, it was “no test case, and it will not establish any general precedent.” 

However, what is significant is the weight Justice Tree and the medical professionals placed on the NSW Department of Health model of care for gender dysphoric kids, which allows for the administration of cross-sex hormones like testosterone to teenagers.

(The court did not specify the state in which Ash is being treated; however, the judgment quoted extracts from the relevant state clinical guidance, and it is clear the document quoted is the “Framework for the Specialist Trans and Gender Diverse Health Service for People Under 25 Years” published by the NSW Ministry of Health.])

After quoting from the NSW Health guidelines on the treatment of gender dysphoria, Justice Tree wrote: “The simple fact is that the relevant government has, as it should, established the relevant policy, and it is not my role to second-guess its wisdom.”  

At one point, Justice Tree concedes the argument that the relevant professional guidelines on treatment of gender dysphoria may not be right, but asked, “If that is what the relevant bodies in this jurisdiction — and indeed the world — have agreed, who am I, without medical training or clinical experience whatsoever, to disagree?” 

Government Guidelines

It wasn’t only the judge pointing to NSW Health as the key decision-maker.

Ash’s treating psychiatrist, who works at a gender clinic run by the NSW Department of Health, gave evidence in court that those who worked at the clinic were required to adhere to the model of care outlined by NSW Health.   

The psychiatrist — known only as Dr H — told the court that a failure to follow Department of Health guidelines would impact on funding and potentially the ability to practise at all. “We follow the guidelines… we’re a [state government] health clinic. We do what our boss tells us,” Dr H said. 

It seems to me that the key idea to be taken from Ash’s case is that if the NSW Department of Health guidelines were different and, like Norway, Sweden and the UK, had banned the use of cross-sex hormones on kids or at least highly restricted their use, then Ash’s case might have been decided differently.  

But the hands of judges are essentially tied, and objecting clinicians marginalised while the official clinical guidance still says that giving testosterone to minors is okay. 

As it stands, if one parent does not want their kids to have access to puberty blockers and cross-sex hormones but the other parent does, the resisting parent faces “something of an uphill battle”, according to Justice Tree.  

And it will only change if the NSW Government has the courage to act. 

___

Republished with thanks to The Catholic Weekly. Image courtesy of Adobe.