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At a recent seminar on youth gender medicine, Professor Patrick Parkinson highlighted a concerning legal case where an Australian judge approved gender testosterone treatment for a 16-year-old despite acknowledging medical risks, highlighting legal inconsistency and the need for legislative clarity in protecting vulnerable youth.

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This article is Part 1 of 3.

On March 14, 2025, a seminar was held at the NSW Parliament House in Sydney on The Future of Youth Gender Medicine. The papers given on the day were collected into a Report, a free copy of which may be obtained from the National Association of Practising Psychiatrists website (napp.org.au).

Professor Patrick Parkinson AM, Emeritus Professor of Law at the University of Queensland, was among the contributors. In his address, he offered a legal perspective on the complexities of consent in the treatment of minors, particularly in cases where parents do not agree.

In this first excerpt of three from his address, Professor Parkinson recounts the first of two recent legal decisions that reached opposing conclusions regarding the administration of gender-affirming hormones.

I shall address some of the legal issues that I see arising from the current practices in Australia in relation to the health of trans and gender diverse children and young people.

By way of background, I am a lawyer with expertise in family law, child protection and medico-legal matters and a sometime Law Professor and Dean. I have been involved in certain court cases where these issues are considered.

First, it is worth saying that there is a whole group of lawyers who have been very active in this space, concerned about the issues for young people in particular, who may make irreversible changes to their bodies that they later regret. People have been acting pro bono, spending countless hours preparing for and participating in court cases concerning children and young people.

Consent to Gender Medical Treatment: Minors

The current law provides that both parents must give their consent to puberty blockers or cross-sex hormones for any child under 18. If one parent refuses consent, then the matter has to go to the Family Court, now known as Division 1 of the Federal Circuit and Family Court of Australia.

More and more cases are being filed in that court. Why? Because the message has got out that gender identity isn’t fixed and stable in children and adolescents, that hormone treatments are not the lifesaving interventions claimed, that many adults regret the treatment that they experienced as children and young people, and wish they had been better advised or had waited.

The word is out that many of the claims that have been made about gender-affirming care aren’t based on reliable evidence.

These cases are sometimes both long and complex. They are typically subject to stringent suppression orders, not just about the details of the case but even the state in which the case takes place. Some of these cases settle without a judgement. I was involved in one case where it settled after ten days of hearing, with the parent seeking puberty blockers for the child agreeing that no such treatment would be offered. There have been other cases I know of that have settled as well, and a couple of recent cases where the judge has delivered a judgement.

The Case re Ash: 16-Year-Old Female

In this case, one parent supported, and one parent opposed, the provision of testosterone to a 16-year-old female who had identified as male for some four years. It was heard in the Federal Circuit and Family Court of Australia. In these cases, the Court just has to make a decision in the best interests of the child.

In the published judgement in this case, there are certain deletions and facts not given. The gender of each parent is not recorded, and the names of all expert witnesses are suppressed. The gender of the experts who were supportive of providing this teenage female with testosterone is also suppressed. They are described using they/them pronouns, whereas the gender of the experts called in opposition to the treatment is not suppressed.

The judge gave a strong judgement in favour of allowing the treatment. He praised the experts on one side while disparaging the experts on the other. He endorsed the WPATH Standards of Care, version 8, as “authoritative”, while according the Cass Review “little weight” in determining where Ash’s best interests lie.

Notwithstanding that he said judges should avoid getting involved in politics, he went out of his way to offer commentary on the Cass Review, suggesting that it may have been driven by an “overt political imperative” and implying that perhaps the British Government may have been motivated by financial issues, given that the National Health Service had been “overwhelmed” by the increase in clients seeking gender-affirming treatment, particularly adolescent girls. He also cast aspersions on Dr Hilary Cass’ qualifications to lead the review and how she conducted it.

It is fair to say, in other words, that it is a somewhat extraordinary judgement.

However, the judge also sought to make clear that the judgement is not a precedent of any kind. This was a case about whether one teenager, Ash, should be allowed to receive cross-sex hormone treatment before the age of 18 in circumstances where s/he was likely to make that decision for him/herself after turning 18. It is not a precedent for any other case because each case is only about the best interests of the child as the judge sees it, on the basis of the evidence provided in the case. It is notorious that judges can reach quite different views about what is in the best interests of a particular child, and their judgements may be influenced by their personal values and beliefs.

Three Takeaways from re Ash

What can we learn from it? Three things stand out.

1. The Older the Child, the Harder for the Judge to Say ‘No’ to Gender Transitioning

The first is that in these cases, the closer a young person gets to 18, the harder it is for a parent to oppose the treatment successfully. In these cases, almost by definition, the young person really wants the treatment and is not put off by worries about adverse health consequences, loss of fertility, or the risk of later regret. The parent who is opposing the treatment is asking the judge to go against the strongly held wishes of an older adolescent concerning their body, in circumstances where, in a year or two, they will be able to decide for themselves. The older the child, the harder it is for the judge to say “no”.

2. Even Judges with Pro-Child Gender Transition Views Now Acknowledge the Risks

The second point to make is that even this judge, who clearly had very strong opinions, acknowledged that the risks this young person wanted to take were considerable. He accepted the view of an expert witness that she should be afforded “the dignity of risk” to undergo testosterone therapy but he said he had no idea whether it would be for Ash’s benefit in the medium- to long-term. This is because there really haven’t been long-term studies of more than about six years’ duration. There is so much we don’t know.

So, the question in the judge’s mind was whether the risks of treatment were “unacceptable”.

These risks included:

• A risk that Ash may live to regret – even bitterly regret – taking testosterone.
• That it may not alleviate Ash’s dysphoria, either materially or even at all.
• That it would lead to unintended consequences, including pain and disease.
• That it will likely impair, at least to some degree, and perhaps completely, Ash’s fertility.

The judge also acknowledged the risks that because Ash’s cognitive development is still ongoing, Ash may not fully comprehend:

• All the risks associated with the taking of testosterone.
• The limitations to the effects of testosterone.

However, the judge did not regard these risks as unacceptable when taking into account the expected benefits.

Clearly, there are other judges who might well take a very different view of those risks. Dr Cass, after a four-year review of all the evidence, concluded that cross-sex hormones should not be provided to teenagers without a clear clinical rationale, and that generally doctors should show “extreme caution”.

At the end of the day, this judge authorised treatment because the young person really wanted it and his/her gender identity as male had been stable over a four-year period.

3. Inconsistency in Child Gender Cases will Continue Until Legislation Exists

The third point to make is that unless there is legislation specifically in this area, there is likely to be a lot of inconsistency between judges. If the only test is what is in the best interests of the child, then inevitably, much will depend on the judge’s personal views as to what is in the young person’s best interests. In NSW, there is such legislation, at least for under 16s. That legislation was considered in a recent case, re Lisa (October 8, 2024).

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Republished with thanks to News Weekly. Image via Adobe.