Re Ash (No 4)
[2024] FedCFamC1F 777
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Re Ash (No 4) [2024] FedCFamC1F 777
File number: By Court order the file number is suppressed Judgment of: TREE J Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – PARENTING – GENDER DYSPHORIA – Where the applicant, supported by the Independent Children’s Lawyer seeks sole parental responsibility for the elder child for the purpose of authorising stage 2 hormone treatment, which was opposed by the respondent – Where the child has had a fixed gender identity for the past five years – Where the major focus of the respondent’s case was the contended risks of stage 2 hormone treatment – Where the respondent was using these proceedings to attempt to subvert both the determination of the relevant medical professional bodies and the policy of the State Government – Where the risks of stage 2 hormone treatment are not unacceptable – Where it is in the best interests of the child for the applicant to be afforded sole parental responsibility including any decision in relation to the administration of stage 2 hormone treatment. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61CA, 61DA, 65DAC, 68B Cases cited: Banks & Banks (2015) FLC 93-637
Bell v Tavistock [2022] 1 All ER 416
CDJ v VAJ (1998) 197 CLR 172
O v P and Q [2024] EWHC 1077
Re J (Transgender Puberty block and Hormone Replacement Therapy) [2024] EWHC 922
Re Jamie (2013) FLC 93-547
Re Kelvin (2017) FLC 93-809
Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218
Division: Division 1 First Instance Number of paragraphs: 277 Date of hearing: 4, 5, 6 7 and 19 March 2024, 11, 12, 13, 14, 17, 18, 19 and 20 June 2024, 1 and 19 July 2024 Counsel for the Applicant: By Court order the names of the legal practitioners are suppressed Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: By Court order the names of the legal practitioners are suppressed Solicitor for the Respondent: Watts McCray Counsel for the Independent Children's Lawyer: By Court order the names of the legal practitioners are suppressed Solicitor for the Independent Children's Lawyer: A Legal Aid Commission ORDERS
SUPPRESSED FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: PARENT B
Applicant
AND: PARENT C
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
Non-publication
1.Save as provided in Order 3:
(a)publication of the non-anonymised version of these orders and the reasons for them except to the Applicant, Respondent and Independent Children's Lawyer and their legal representatives, is prohibited; and
(b)upon distribution of the anonymised version of these orders and the reasons for them to the Applicant, Respondent and Independent Children's Lawyer and their lawyers, further publication of them to any other person is prohibited for within a further 28 days, subject to further order, with each of those parties having liberty within those 28 days to communicate with the chambers of Justice Tree (copying in the other parties) as to any further anonymisation that may be required.
Ash
2.That the Applicant, have sole parental responsibility for the child Casey Morgan-Tyler, now known as Ash Morgan-Tyler, born 2008 (“Ash”), including but not limited to the provision of any necessary parental consent for:
(a)proposed stage 2 treatment for Ash’s gender dysphoria, being the administration of testosterone on and from a date, in such dose, in such manner and with such frequency as determined by Ash’s treating medical practitioners.
3.That the Applicant be at liberty to provide a copy of the non-anonymised orders and non-anonymised reasons for judgment to all persons involved in the Ash’s treatment.
4.That the Applicant notify the Respondent, of any decision about a major long-term issue in relation to Ash within 14 days of making any such decision.
AND IT IS FURTHER ORDERED BY CONSENT
5.That Ash live with the Applicant.
6.That Ash spend time with the Respondent in accordance with his wishes.
7.A change of name for the child from “Casey Morgan-Tyler” to “Ash Morgan-Tyler” is approved by the Court.
8.The Registrar of the Registry of Births, Deaths and Marriages is to register the change of name from “Casey Morgan-Tyler” to “Ash Morgan-Tyler” and issue a change of name certificate.
9.That the Applicant do all things and sign all documents necessary to give effect to Orders 7 and 8 above including providing a copy of the non-anonymised orders to the Registrar of the Registry of Births, Deaths and Marriages.
10.That the Applicant be at liberty to unilaterally approach the Department of Home Affairs to have such change of name recorded on Ash's Australian Citizenship Certificate and it is directed that upon any application by the Applicant, the Department of Home Affairs give full force and effect to this order for a change of name and Ash be henceforth known as ASH MORGAN-TYLER.
Lee
11.The Applicant and Respondent are to notify each other of any decision they have made about a major long-term issue in relation to the child Lee Morgan-Tyler born 2010 (“Lee”) within 14 days of making any such decision.
12.(Removed)
Ash and Lee (“the children”)
13.That the Applicant and Respondent shall keep the other informed of their current residential address, telephone number and email address and will otherwise inform the other party of any changes to those details, at least seven (7) days prior to any change in residential address and within twenty-four (24) hours of any change to their telephone number or email address.
14.That the Applicant and Respondent are permitted to liaise directly with the children’s school principals or teachers to obtain any information about their progress at school or information about events such as swimming carnivals, sports days, parent days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards, and any other documents provided to parents directly from the school with these Orders authorising the release of such information, to each of the parties.
15.That upon either the Applicant or Respondent becoming aware of either of the children requiring surgery or suffering a serious health problem or illness, that parent must notify the other parent as soon as practicable.
16.That the Applicant and Respondent be restrained from denigrating the other parent or members of the other parent's family to the children, or either of them, or in the presence or hearing of the children, or either of them.
17.That the Applicant and Respondent do all things and sign all documents necessary to maintain a current Australian passport for each of the children and the Applicant will hold Ash’s passport and birth certificate and the Respondent will hold Lee’s passport and birth certificate.
18.Pursuant to s 65D of the Family Law Act 1975 (Cth) the Applicant and Respondent shall be permitted to take the children (or either of them) out of Australia in accordance with the children's wishes, and in accordance with the following orders:
(a)That the parent travelling with the children (“the travelling parent”) will give to the other party at least six (6) weeks written notice of the proposed travel;
(b)That the proposed travel does not unreasonably interfere with the children’s schooling or therapies;
(c)That the travelling parent provide the other party no later than four (4) weeks prior to the proposed travel with an itinerary which will include the date the children will be leaving Australia and the date the children will be returning, flight details including carrier and flight number, telephone number and address of where the children will be staying during their absence from Australia, and contact details for the children at each place they will be staying during their absence from Australia;
(d)That the travelling parent provide the other party with a copy of the children’s return ticket to Australia no later than four (4) weeks prior to the proposed travel.
19.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
AND IT IS FURTHER ORDERED:
20.The Independent Children's Lawyer is forthwith discharged with the thanks of the Court at the later of either the expiration of the appeal period from these orders, or the conclusion of any appeal.
21.That otherwise all extant applications are dismissed and the matter removed from the list of pending cases.
THE COURT NOTES:
A.As at the date of these orders, in accordance with Lee’s wishes, Lee does not live with either the Applicant or the Respondent.
B.No order with respect to parental responsibility has been made in relation to Lee Morgan-Tyler with the consequence that section 61C of the Family Law Act 1975 (Cth) shall apply.
C.On 18 March 2024 the Court made non-publication orders pursuant to s 102PE of the Family Law Act 1975 which remain in force until 1 January 2029 and which do not limit the operation of part XIVB of the Family Law Act 1975. The orders of 18 March 2024 impose restrictions on publication and restrictions on access to the Court’s file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re Ash (No 4) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
These parenting proceedings relate to the parties’ two children, presently aged 16 and 14. The oldest child, who was born female, prefers to be called Ash. In respect of the older child, I will use that name in these reasons, as well as his currently preferred pronouns of, “he” or “him.” The younger child I will simply refer to her as “Lee”.
As the trial progressed, the issues requiring judicial resolution narrowed to essentially only two. The first issue was whether Ash, who has now lived as male for nearly five years, should be permitted to have testosterone administered to him. That said, the issue was largely bound up with the allocation of parental responsibility. The applicant, supported by the Independent Children's Lawyer (“the ICL”), sought sole parental responsibility for Ash (thereby enabling them to consent to the testosterone). The respondent primarily sought equal shared parental responsibility, thereby effectively precluding the administration of testosterone, as they strongly oppose it. In the alternative, if the applicant has sole parental responsibility, then the respondent sought an order prohibiting any administration of testosterone to Ash.
The second issue was who should have parental responsibility for Lee. As to that, the applicant sought sole parental responsibility, whilst the respondent, supported by the ICL, sought that parental responsibility be shared between the applicant and the respondent, although they arrived at that by different pathways.
Despite the ultimate relative simplicity of those issues, nonetheless vast numbers of documents were placed before me, with the trial taking some 15 hearing days to complete, over some four months, at the conclusion of which I reserved my decision. This is that decision and the reasons for it.
I should explain that although I had hoped to provide this judgment far sooner, the task of reviewing the thousands of pages of material, including transcript, has occupied a great deal of time. In large, if not entire part, that was because it appears that one or more of the parties have elected to turn this into something approximating a test case, about which I shall have something to say later.
BACKGROUND
The applicant was born in Country M in 1980 and is presently 44 years of age.
The respondent was born in Country M in 1974 and is currently 50 years of age.
The parties met in Country M and married there in 2004. Both children were born in Country M.
In 2015 the parties and the children emigrated to Australia, where they have remained living thereafter.
Up until about 2018 both the applicant and the respondent were, as described by the respondent’s counsel, deeply religious, and had raised their children in their faith; only the respondent still adheres to it.
In about 2018, at around age 10, Ash first began articulating that he identified as “gay”, “queer” or “different”.
In late 2019, the parties separated but remained living under the one roof, initially it seems, because of their strained finances, but later also because of Covid lockdowns.
In late December 2019 Ash first articulated that he identified as transgender.
From early 2020, Ash commenced living as male, and openly presented as transmale on his first day of high school in that year. Unfortunately, in the following months he was severely transphobically bullied at that school, including being physically assaulted by a much larger child. He withdrew from that school and undertook distance education until the start of year 9 in 2022.
On 28 April 2020, the respondent moved out of the former matrimonial home. By then, the applicant had re-partnered and, shortly after the respondent’s departure, their new partner moved in to live with the applicant and the children.
In early 2022 Ash attended a specialist gender clinic known as N Clinic (“[NCL]”) (albeit by telehealth link), which later in early 2023, formally diagnosed him as having gender dysphoria.
In early 2022 Ash rejoined conventional in-person schooling at a different high school to that at which he had been bullied. Whilst enrolled and presenting as male, he did not reveal that he was transmale to his student peers. Apparently that is commonly known as living “stealth.”
In August 2022 Ash wished to commence taking puberty blockers, but the respondent did not agree. Ash has never been on puberty blockers, and since puberty has now occurred, that issue has evaporated. Later, Ash wished to commence the administration of testosterone, but again the respondent withheld their consent.
During 2022, Lee began to self-harm, which at times saw her hospitalised. Given that, apart from parental responsibility, the parties are largely agreed about the orders appropriate for Lee, it is not necessary to further detail her troubling history of self-harm thereafter.
On 3 October 2023, in view of the respondent’s refusal to consent to Ash receiving gender affirming treatment, the applicant commenced these proceedings, seeking sole parental responsibility for both children. Thereafter the matter was readied for hearing, which commenced before me on 4 March 2024, but was clearly incapable of then finishing in the time allocated for it. Notwithstanding the fact that from the very outset I informed the parties that I would not permit the trial to be run as a kind of Royal Commission into the administration cross-sex hormones to adolescents, sadly this direction was only partially heeded and hearing ballooned from just four days, to 15.
During the course of the trial, Lee continued to present challenging behaviours whilst living in the applicant’s house, including drug and alcohol use. When the applicant introduced strategies to deal with that, Lee ran away from home, and has not returned.
It seems that Lee felt resentful towards what she perceived to be an alliance between the applicant and Ash, and posted or said something which caused Ash to fear that Lee would “out” him as transmale to his school peers. That caused Ash to again withdraw from in-person schooling, and to resume distance education. At the time of these reasons Ash is completing year 11 by that means. He continues to live as male, and identifies as transmale.
The most recent evidence I have is that Lee is living with a friend and her family. It appears she is not attending school. She has little contact with any of her family.
The applicant has since remarried. Ash lives in their household, and has little to do with the respondent. The applicant is self-employed; and their spouse is a professional
The respondent is presently in a relationship, but they do not cohabit. The respondent is currently training to be a professional.
THE PARTIES’ PROPOSALS
By the end of the trial, there were a number of orders which were agreed upon, in broad terms as follows:
·That Ash live with the applicant.
·That Ash spend time with the respondent in accordance with his wishes.
·That the Applicant be permitted to unilaterally apply for Ash’s name to be legally changed from Casey Morgan-Tyler to Ash Morgan-Tyler.
·Neither party seeks ‘live with’ or ‘time with’ orders regarding Lee and press for a notation that, as at the date of the orders, in accordance with her wishes, Lee does not live either the applicant or the respondent.
The final iteration of the controversial orders sought by the applicant are:
1.That the Applicant have sole parental responsibility for the child [Casey Morgan-Tyler], now known as [Ash Morgan-Tyler], born [...] 2008 ("Ash"), including but not limited to the provision of any necessary parental consent for:
1.1Proposed stage 2 treatment for [Ash’s] gender dysphoria, being the administration of testosterone on and from a date, in such dose, in such manner and with such frequence as determined by [Ash’s] treating medical practitioners.
2.That the Applicant be at liberty to provide a copy of the un-anonymised orders to all persons involved in [Ash’s] treatment.
3.That the Applicant notify the Respondent of any decision about a major-long term issue in relation to [Ash] within 14 days of making any such decision.
4.That the Applicant have sole parental responsibility for the child [Lee Morgan-Tyler], … ("Lee") on the conditions that:
4.1The Applicant notify the Respondent of any decision about a major long-term issue in relation to [Lee] within 14 days of making any such decision; …
…
6.That the parties do all things and sign all documents necessary to maintain a current Australian passport for each of the children and the Applicant will hold those passports along with each of the children's birth certificates.
(Applicant’s Minute of Order dated 18 July 2024)
For their part, ultimately the respondent sought controversial orders as follows:
[Ash] Parental Responsibility
1.That the Applicant and Respondent have Equal Shared Parental Responsibility for the child [Casey Morgan-Tyler], now known as [Ash Morgan Tyler] … [(“Ash”)].
In the event that Respondent’s proposed Order 1 is not ordered
2.That the Applicant have sole parental responsibility for the child [Casey Morgan-Tyler], now known as [Ash Morgan Tyler], born [,,,] 2008 [(“Ash”)] on the condition that:
2.1The Applicant notify the Respondent of any decision about a major long-term issue in relation to [Ash] within 14 days of making any such decision.
2.2the Applicant be restrained by injunction from giving consent for [Ash] to undergo treatment with puberty blockers (“stage 1” treatment) or treatment with cross-sex hormones (“stage 2” treatment) for gender dysphoria without the prior written consent of the Respondent.
[Lee] Parental Responsibility
3.The Applicant and Respondent are to notify each other of any decision they have made about a major long-term issue in relation to [Lee] within 14 days of making any such decision.
Notation A: No order with respect to parental responsibility has been made in relation to [Lee Morgan-Tyler] with the consequence that section 61C of the Family Law Act 1975 shall apply.
In the event that Respondent’s proposed Order 3 and Notation A are not ordered
4.That the Respondent have sole parental responsibility for the child [Lee Morgan-Tyler] … on the conditions that:
4.1The Respondent notify the Applicant of any decision about a major long-term issue in relation to [Lee] within 14 days of making any such decision.
In the event that Respondent’s proposed Order 4 is not ordered
5.That the Applicant and Respondent have Equal Shared Parental Responsibility for the child [Lee Morgan-Tyler] … [(“Lee”)]
In the event that Respondent’s proposed Order 5 is not ordered
6.That the Applicant have sole parental responsibility for the child [Lee Morgan-Tyler] … [(“Lee”)] on the conditions that:
6.1The Applicant notify the Respondent of any decision about a major long-term issue in relation to [Lee] within 14 days of making any such decision; and
…
…
Passports
8.That the parties do all things and sign all documents necessary to maintain a current Australian passport for each of the children and the Applicant will hold [Ash’s] passport and birth certificate and the Respondent will hold [Lee’s] passport and birth certificate.
(Respondent’s Minute of Order dated 18 July 2024)
The ICL’s final proposal relevant to controversial matters was:
[Ash]
1.That the Applicant, [Parent B], have sole parental responsibility for the child [Casey Morgan Tyler], now known as [Ash Morgan Tyler], … [(“Ash”)], including but not limited to the provision of any necessary parental consent for:
a)proposed stage 2 treatment for [Ash’s] gender dysphoria, being the administration of testosterone on and from a date, in such dose, in such manner and with such frequency as determined by [Ash’s] treating medical practitioners.
In the alternative to order 1, orders 2 and 3 below.
2.That the Applicant, [Parent B], have sole parental responsibility for the child [Casey Morgan Tyler], now known as [Ash Morgan Tyler] … [(“Ash”)].
3.That pursuant to s 67ZC of the Family Law Act 1975 (Cth), the proposed stage 2 treatment for [Ash’s] gender dysphoria, being the administration of testosterone on and from a date, in such dose, in such manner and with such frequency as determined by [Ash’s] treating medical practitioners, is authorised by order of this Court.
4.That the Applicant be at liberty to provide a copy of the un-anonymised orders and un-anonymised reasons for judgment to all persons involved in the [Ash’s] treatment.
5.That the Applicant notify the Respondent, [Parent C], of any decision about a major long-term issue in relation to [Ash] within 14 days of making any such decision.
…
11.That each party is permitted to liaise directly with [Ash’s] school principals or teachers to obtain any information about the [Ash’s] progress at school or information about events such as swimming carnivals, sports days, parent days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards, and any other documents provided to parents directly from the school with these Orders authorising the release of such information, to each of the parties.
[Lee]
12.The Applicant and Respondent are to notify each other of any decision they have made about a major long-term issue in relation to [Lee] within 14 days of making any such decision.
…
18.That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge.
THE COURT NOTES:
…
B.No order with respect to parental responsibility has been made in relation to [Lee Morgan-Tyler] with the consequence that section 61C of the Family Law Act 1975 shall apply.
…
(ICL’s Written Submissions filed 12 July 2024)
It can therefore be seen, as I earlier adverted to, that the only significant remaining issues pertain to whether one or both parties should have parental responsibility for the children, and the substantial matter of whether Ash should be allowed to have testosterone administered to him.
WHO SHOULD HAVE PARENTAL RESPONSIBILITY FOR THE CHILDREN
The law
All parties agreed that, save for the new s 61CA, this case falls to be determined under the law as it existed prior to the 2023 amendments to the Family Law Act 1975 (Cth) (“the Act”) which came into force while the trial was part-heard. Part VII of the Act contains the relevant statutory provisions dealing with children’s matters. Section 60B of the Act specifies the objects of Pt VII, and the principles underlying those objects.
As it applies in this case, s 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. However, s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to the applicable text of s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC of the Act. Consideration of those matters does not require a discussion of each of the factors; the issues in the case will dictate which s 60CC factors are relevant: Banks & Banks (2015) FLC 93-637 at [48]–[49].
The context in which the issue arises
The presumption of equal shared parental responsibility does not apply here. That is because both parties assert that they were the victims of family violence. It is unnecessary to determine whose version is correct, or indeed whether both are correct to some extent (which is my tentative view). Of themselves, the mutual allegations are sufficient to satisfy me of the requirement of s 61DA(2).
As regards Lee, the relatively simple question is whether there should be any order for parental responsibility at all, and if so, whether it should be shared equally, or whether it should be solely given to the applicant.
The far more complex question as regards Ash is whether the applicant should have sole parental responsibility for him, and if so, whether it should be conditioned upon a prohibition of testosterone administration, or alternatively, whether the parties should equally share parental responsibility, which would nigh inevitably mean the administration of testosterone would never be agreed to. Although during the trial I raised with the parties whether someone other than them should be considered as a potential candidate for parental responsibility, (for example the Director of a relevant State government department), it went nowhere.
The issue of testosterone administration to Ash was therefore the major battleground at trial, with each party, including the ICL, calling expert evidence, which was in conflict.
The applicant called evidence from two staff members of NCL; firstly a child and adolescent psychiatrist, Dr H, and secondly a paediatric endocrinologist, Dr G. Their evidence was, in broad terms, that the administration of testosterone was a professionally well recognised, and if sought by the child, an appropriate, response to a diagnosis of gender dysphoria, and that those professionals who assert otherwise were a vocal minority.
Their evidence was buttressed by the expert called by the ICL, Dr O, a child and adolescent psychiatrist who is employed by a gender clinic. Dr O strongly advocated in favour of medicalised gender affirming care generally, and extensively traversed and critiqued the material which suggested to the contrary.
That contrary evidence was led by the respondent, and was from a psychiatrist, Dr D, a psychologist, Dr F, and a paediatrician, Dr E. Ultimately, the respondent did not rely on any opinion expressed by Dr F, but only upon her notes and recollection of a consultation she had with Ash. Dr D and Dr E’s evidence was, essentially, that testosterone should never be administered to a child, and that prior to (at least) 18 years of age, psychotherapy should be the only response to a diagnosis of gender dysphoria.
This conflicting evidence was said to inform the question of parental responsibility, in that if given sole parental responsibility, the applicant would be likely to consent to Ash receiving testosterone, which the respondent contended was not in Ash’s best interests. Thus it was said it was not in Ash’s best interests for the applicant to have unrestrained sole parental responsibility for Ash, as its exercise was likely to see Ash irreversibly harmed by the administration of testosterone. Alternatively, it was said that even if the applicant had sole parental responsibility, the administration of testosterone for Ash should be restrained, as such a restraint was in Ash’s best interests.
For their part, the applicant and the ICL contended that either the administration of testosterone was in Ash’s best interests, or in the alternative, that it was not established to be contrary to his best interests, such that there was no reason on that account to not give the applicant sole parental responsibility, and particularly to restrain them from permitting its administration to Ash.
The respondent faced something of an uphill battle in pressing their case, since:
(a)The State Government Department of Health, which runs NCL, has established the model of care which operates at NCL, which can include the administration of testosterone to adolescents;
(b)The main relevant national and international professional associations support cross-sex hormone treatment for gender dysphoria; and
(c)The contrary view expressed by the respondent’s witnesses appears to be one only held by a minority of relevant medical or allied health professionals, albeit a vocal one.
Thus, the respondent’s case was that despite cross-sex hormones being a professionally recommended care option, and indorsed by the relevant government’s policy, it was nonetheless not in Ash’s best interests to permit it to occur.
There are considerable parallels between this case and that which confronted the UK Court of Appeal in Bell v Tavistock [2022] 1 All ER 416 (“Bell v Tavistock”) where Lord Burnett CJ said at [3]:
3.The treatment of children for gender dysphoria is controversial. Medical opinion is far from unanimous about the wisdom of embarking on treatment before adulthood. The question raises not only clinical medical issues but also moral and ethical issues, all of which are the subject of intense professional and public debate. Such debate, when it spills into legal proceedings, is apt to obscure the role of the courts in deciding discrete legal issues. The present proceedings do not require the courts to determine whether the treatment for gender dysphoria is a wise or unwise course of whether it should be available through medical facilities in England and Wales. Such policy decisions are for Government and Parliament. The treatment of children for gender dysphoria is lawful in this jurisdiction. It was no part of the claim advanced before the Divisional Court that the prescription of puberty blockers and then cross-sex hormones (two common steps in treatment for gender dysphoria in children) was in itself unlawful. Instead, the claim advanced was that the sanction of the court should always be obtained before they were prescribed.
(Emphasis added)
To like effect are the statements of the English High Court in Re J (Transgender Puberty block and Hormone Replacement Therapy) [2024] EWHC 922 at [46]–[56] and O v P and Q [2024] EWHC 1077 at [60]–[61].
Thus, perhaps inevitably, the respondent seized on and made the centrepiece of their case, the final, so-called “Cass Review” from the UK, which was released during the trial. Neither the chair, Dr Cass, nor any review team members, were called to give evidence, and hence the review’s conclusions could not be directly tested. Indeed, a significant foundation of the review, a systematic literature review by York University, could not be directly tested, as none of its authors were called either. However, despite those difficulties, great reliance was placed upon the Cass Review by the respondent, no doubt because, at least on one view, it advocates against the administration of cross sex hormones to children, until clinical trials have demonstrated that they are (my words) of any therapeutic use, and are not more harmful than good.
Whilst courts which routinely deal with medical negligence claims may develop some expertise in resolving disputes between opposing medical viewpoints, such is scarcely the bread-and-butter work of this court, particularly at such an abstract level, which as Bell v Tavistock observed, should be resolved by relevant professional bodies or by governmental policy. Courts generally, and this court in particular, are the bluntest of instruments when it comes to choosing between competing bodies of opinion within the medical and allied professions.
Further, and despite my attempts to keep it as a forensic legal issue, from time to time it became clear, as adverted to in Bell v Tavistock, that the conflict about the medicalised treatment for gender dysphoria is part of a bitter, wider dispute across the world, which extends into general politics, and is not just an arid, esoteric debate between scholars or therapists. Thus, from some corners, there is considerable outcry about many issues surrounding transgender people, including to the point of challenging them and their authenticity altogether. On the other hand, equally vocal supporters of transgender and gender diverse people claim that hard-won rights are being attacked and curtailed and bring equal political enthusiasm to the fray.
As much as I might like some kind of God-like power, my task as a judge is not to resolve political disputes, and certainly not ones which seem to have presently polarised large parts of the world. Rather my job, as mundane as it might seem, is to figure out where I think the best interests of the particular child or children under consideration lie. It is not my role to determine if the Cass Review is sound or flawed, nor if, as a general proposition, gender affirmation of adolescents by medicalised intervention is wise or not. In the instant case, because his parents cannot agree, my task is simply to decide what to do about Ash, on the unique facts of his life. This is no test case, and it will not establish any general precedent, no matter what I decide.
There is a short way of dealing with the dispute about whether Ash should be able to receive testosterone, which in reality would be not to resolve the issue at all. Particularly, given the way the parties ran their cases in relation to Ash, I could simply decide the question of parental responsibility with no reference to testosterone administration, and to then, if needs be, consider whether the respondent has discharged the onus which rests on them to justify the imposition of a restraint on testosterone administration. Indeed, it is tempting to so proceed, but ultimately I have not done so. That is because such an approach would ignore the real dispute between these parties – is it presently in Ash’s best interests that he have the opportunity to take testosterone if he should so wish?
I will therefore proceed directly to that issue.
SHOULD ASH BE ABLE TO RECEIVE TESTOSTERONE?
What is the test?
Although there was, at times, a marked lack of clarity as to the respondent’s position, ultimately as I understood it, subject to possible questions of onus, it was agreed that in determining this question, the test was whether or not the administration of testosterone was in Ash’s best interests, and in doing so, undertake a balancing of the relevant risks.
Some of the confusion arose from what fell from the plurality in Re Kelvin (2017) FLC 93-809 (“Re Kelvin”). Up until that case, the earlier Full Court authority of Re Jamie (2013) FLC 93-547 (“Re Jamie”) required court authorisation for the administration of cross-sex hormones to a child, even if there was no controversy about it as regards the parents and the treaters. That was because the Full Court then appeared to think that such treatment was beyond the ordinary bounds of parental responsibility, perhaps (although it is not clear) because it viewed the treatment as non-therapeutic.
Re Kelvin departed from Re Jamie, not because it was plainly wrong (at [171]) but because of “legally relevant factual differences in the evidence before the Full Court in Re Jamie as compared with the stated facts here” (at [175]). Earlier at [163]–[164] the plurality had said:
163.The one intervenor who is out of step is the Secretary for the Department of Family and Community Services. The Secretary says in effect that court authorisation of stage 2 treatment should continue to be required. But for the reasons we have given, we do not agree with that submission.
164.The treatment can no longer be considered a medical procedure for which consent lies outside the bounds of parental authority and requires the imprimatur of the Court.
Those paragraphs seem to clearly say that specific court authorisation for cross-sex hormone administration is no longer required under any circumstances (albeit implicitly, only so long as there is parental agreement, which if absent, as here, then the process engaged to resolve that conflict is not in the guise of court authorisation).
Rather it is the preceding paragraph which has generated confusion. It provides:
162.The consensus of the applicant, the ICL and all but one of the intervenors, is that the development in the treatment of and the understanding of Gender Dysphoria allows this Court to depart from the decision of Re Jamie. In other words, the risks involved and the consequences which arise out of the treatment being at least in some respects irreversible, can no longer be said to outweigh the therapeutic benefits of the treatment, and court authorisation is not required. This is so, of course, only where the diagnosis has been made by proper assessment and where the treatment to be administered is in accordance with the best practice guidelines described in the case state.
(Emphasis added)
The respondent focussed particularly on the last sentence, and contended that I needed to be satisfied that Ash’s diagnosis of gender dysphoria was the product of a “proper assessment.” This was a rather puzzling argument because even the respondent – ultimately – conceded the diagnosis of gender dysphoria was, in Ash’s case, correct.
Next in similar vein, it was contended that I would need to be persuaded that the proposed administration of testosterone “is in accordance with the best practice guidelines” which it was said, given the Cass Review and other evidence, it was not. Rather, the respondent argued that only psychotherapy was an appropriate response.
I must confess to considerable difficulty in understanding quite what that last sentence of [162] of Re Kelvin means, or what it practically entails. Particularly if it were to later transpire that a child’s diagnosis was not arrived at by proper assessment, or that the treatment in fact administered did not conform to best practice guidelines, then would the parents’ consent to the treatment have been unlawful or somehow invalid? That would be most perplexing.
Fortunately, I can leave the resolution of that to others, if the need should ever arise, as plainly it was said in the context of a consent application, whereas this is contested. I am not persuaded that [162] introduces some further element here beyond a best interests inquiry. Indeed, I say that even in relation to the proposed injunction, the power to order which is sourced in s 68B of the Act, as such decisions are made in the “shadow” of the best interests of the child as the ultimate issue: CDJ v VAJ (1998) 197 CLR 172 at [191]–[192] per Kirby J.
It is plain that the respondent contends that Re Kelvin is no longer good law, because the respondent says that the science has now moved the other way. (At one stage a case stated in this litigation was mooted, but ultimately that was not pressed by any party).
The issue with that argument is that Re Kelvin plainly recognises that cross-sex hormones, when used to treat gender dysphoria, are therapeutic, which is something the respondent has great difficulty with, as became clear during addresses.
The legal genesis of the respondent’s disquiet is in the well-known passage in Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 (“Marion’s Case”) by Brennan J (as his Honour then was) at 269 as follows:
I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. “Non-therapeutic” medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychological disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes.
At 274 his Honour continued:
Proportionality and purpose are the legal factors which determine the therapeutic nature of medical treatment. Proportionality is determined as a question of medical fact. Purpose is ascertained by reference to all the circumstances but especially to the physical or mental condition which the treatment is appropriate to affect.
Those passages and other parts of the reasons of the High Court in Marion’s Case were considered by the plurality in Re Kelvin in coming to the conclusion that authorisation was no longer required (at [120]–[177]) because cross-sex hormones were therapeutic, as they were appropriate and proportionate.
Whilst initially the respondent seemed to deny that the administration of cross-sex hormones to alleviate the clinical distress (which must exist to justify a diagnosis of gender dysphoria) was therapeutic, ultimately in submissions, it was conceded that in the short term for Ash, it is therapeutic (Transcript 19 July 2024, p.1438 line 33), but not in the medium or longer term, because the risks outweigh the benefits (Transcript 19 July 2024, p.1438 line 40 to p.1440 line 25).
Thus, there was a clear tension in the respondent’s position; on the one hand they recognised that I am bound by Re Kelvin, (albeit the respondent wants to revisit it) but on the other hand they want to argue their case in a way which re-engages with the issue of whether, in this case, testosterone is therapeutic for Ash.
Irrespective of whether Re Kelvin compels me to so conclude, I am satisfied that testosterone is “appropriate for and proportionate to the purpose” of the treatment of gender dysphoria, as I shall briefly explain later in these reasons.
Likewise irrespective of whether Re Kelvin binds me to so conclude or not, I also am satisfied that the administration of testosterone to Ash is “for the chief purpose of … ameliorating a psychological disorder” namely his diagnosed gender dysphoria, and therefore a therapeutic treatment. Indeed, the diagnosis of that condition is the only gateway for a patient to receive testosterone at NCL. I am unpersuaded by the assertion that, despite its clear purpose, the possibility of the treatment proving unsuccessful in the medium or long term somehow disqualifies it from being therapeutic. The prospect of failure is a characteristic of many therapeutic interventions.
The evidence
I have already noted that I was overwhelmed by a vast amount of material which spoke the desirability or otherwise of the administration of cross-sex hormones for gender dysphoria. It may be conveniently grouped into the following:
(a)published standards of care or government policy;
(b)the reports of the various expert witnesses;
(c)the Cass Review;
(d)published academic articles.
The expert witnesses were, to varying degrees, Ash specific; none of the other material had any reference to Ash in them.
However, before turning to that material, it is useful to set out the diagnostic criteria for gender dysphoria as contained in the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (“DSM 5 TR”):
A:A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration, as manifested by at least two of the following:
1.Marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
2.A strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).
3.A strong desire for the primary and/or secondary sex characteristics of the other gender.
4.A strong desire to be of the other gender (or some alternative gender if different from one’s assigned gender).
5.A strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).
6.A strong conviction that one has typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).
B.the condition is associated with clinically significant distress or impairment in social/occupational, or other important areas of functioning.
Published standards of care and government policy
The relevant State Government policy under which NCL operates was published on a recent date (“State Government policy”), and runs to many pages.
The State Government policy provides:
The recommended clinical guidance resources are:
content omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)
(Joint tender bundle page 121)
Later, when discussing the “clinical pathway”, it specifically identifies “Gender affirming (sex) hormones” as one option in the sixth step on the pathway.
It is not necessary to consider all of the recommended clinical guidance resources listed above, but some are worthy of note.
The Australian Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents (“Australian Standards of Care”) provides criteria for adolescents to commence testosterone (Joint tender bundle, page 104). As the State Government policy notes, the Australian Standards of Care have been endorsed by the relevant national professional body for transgender health professionals, commonly known as AusPATH. Dr O explained in detail the extensive and prolonged process which underpinned the promulgation of Australian Standards of Care at pages 44–45 of their report.
As to the World Professional Association for Transgender Health (commonly known as WPATH), its standards of care are contained in “Standards of Care for Health of Transgender and Gender Diverse People, Version 8” (commonly referred to as WPATH SOC 8). Again, Dr O discussed the extensive and rigorous process over five years which led to WPATH SOC 8 at pages 45–46 of their report.
The WPATH SOC 8 recommendations include:
6.3 We recommend health care professionals working with gender diverse adolescents undertake a comprehensive biopsychosocial assessment of adolescents who present with gender identity-related concerns and seek medical/surgical transition-related care, and that this be accomplished in a collaborative and supportive manner.
…
6.9 We recommend health care professionals involve relevant disciplines, including mental health and medical professionals, to reach a decision about whether puberty suppression, hormone initiation, or gender- related surgery for gender diverse and transgender adolescents are appropriate and remain indicated throughout the course of treatment until the transition is made to adult care.
6.10 We recommend health care professionals working with transgender and gender diverse adolescents requesting gender-affirming medical or surgical treatments inform them, prior to initiating treatment, of the reproductive effects including the potential loss of fertility and available options to preserve fertility within the context of the youth’s stage of pubertal development.
…
6.12 We recommend health care professionals assessing transgender and gender diverse adolescents only recommend gender-affirming medical or surgical treatments by the patient when:
6.12.a The adolescent meets the diagnostic criteria of gender incongruence as per the ICD-11 in situations where a diagnosis is necessary to access health care. In countries that have not implemented the latest ICD, other taxonomies may be used although efforts should be undertaken to utilize the latest ICD as soon as practicable.
6.12.b The experience of gender diversity/incongruence is marked and sustained over time.
6.12.c The adolescent demonstrates the emotional and cognitive maturity required to provide informed consent/assent for the treatment.
6.12.d The adolescent’s mental health concerns (if any) that may interfere with diagnostic clarity, capacity to consent, and gender-affirming medical treatments have been addressed.
6.12.e The adolescent has been informed of the reproductive effects, including the potential loss of fertility and the available options to preserve fertility, and these have been discussed in the context of the adolescent’s stage of pubertal development.
6.12.f The adolescent has reached Tanner stage 2 of puberty for pubertal suppression to be initiated
6.12.g The adolescent had at least 12 months of gender-affirming hormone therapy or longer, if required, to achieve the desired surgical result for gender-affirming procedures, including breast augmentation, orchiectomy, vaginoplasty, hysterectomy, phalloplasty, metoidioplasty, and facial surgery as part of gender-affirming treatment unless hormone therapy is either not desired or is medically contraindicated.
(Emphasis added) (Joint tender bundle, page 226)
The relevant Endocrine Society Clinical Practice Guideline says in its conclusion:
Conclusion: Gender affirmation is multidisciplinary treatment in which endocrinologists play an important role. Gender-dysphoric/gender-incongruent persons seek and/or are referred to endocrinologists to develop the physical characteristics of the affirmed gender. They require a safe and effective hormone regimen that will (1) suppress endogenous sex hormone secretion determined by the person’s genetic/gonadal sex and (2) maintain sex hormone levels within the normal range for the person’s affirmed gender. Hormone treatment is not recommended for prepubertal gender-dysphoric-incongruent persons. Those clinicians who recommend gender-affirming endocrine treatments – appropriately trained diagnosing clinicians (required), a mental health provider for adolescents (required) and mental health professional for adults (recommended) – should be knowledgeable about the diagnostic criteria and criteria for gender-affirming treatment, have sufficient training and experience in assessing psychopathology, and be willing to participate in the ongoing care throughout the endocrine transition. We recommend treating gender-dysphoric/gender-incongruent adolescents who have entered puberty at Tanner Stage G2/B2 by suppression with gonadotropin-releasing hormone agonists. Clinicians may add gender-affirming hormones after a multidisciplinary team has confirmed the persistence of gender dysphoria/gender incongruence and sufficient mental capacity to give informed consent to this partially irreversible treatment. Most adolescents have this capacity by age 16 years old. We recognize that there may be compelling reasons to initiate sex hormone treatment prior to age 16 years, although there is minimal published experience treating prior to 13.5 to 14 years of age.
(Emphasis added)
According to Dr O, the Endocrine Society has 18,000 members worldwide.
Although not referred to in the State Government policy, also relevant here are the published statements of the Royal Australian and New Zealand College of Psychiatrists (“RANZCP”), including a document entitled “the Role of psychiatrists in working with Trans and Gender Diverse people” most recently updated in December 2023 (commonly known as Position Statement 103). In cross-examination Dr O explained the process which led to this document (Transcript 17 June 2024, p.1004 line 4 to p.1005 line 12).
Position Statement 103 relevantly reads:
Professional opinions differ about some aspects of the most appropriate care for adolescents requesting treatment. A range of interventions (including psychological, social, and medical) may be considered for adolescents presenting with distress related to their gender.
There is a range of recommendations regarding the care of children and adolescents with gender incongruence/gender dysphoria. These include caution on the use of hormonal and surgical treatment, screening for potential coexisting conditions (e.g. ASD and ADHD), arranging appropriate service provision for these conditions, and offering psychosocial support to explore gender identity during the diagnostic assessment. Some TGD young people, support by their family and whanau, wish for and commence gender-affirming puberty suppression/sex hormone treatment, and report that they experience is as beneficial. While a number of major professional organisations support the use of puberty suppressants and cross sex hormones for adolescents, health authorities in some European countries have recommended restrictions be placed on their use. Australian and New Zealand paediatric services continue to provide multidisciplinary gender-affirming care.
Psychiatrists should remain open and explore the experience and range of support/treatment options that may best address the young person’s needs.
In regard to children and adolescents who experience gender dysphoria or are gender questioning, psychiatrists should consider the young person’s developmental stage, presence of developmental comorbidities (i.e. ASD), and capacity to give informed consent to treatment, in addition to considering the view of their parents/carers.
(Joint tender bundle, page 168–169) (Emphasis added, footnotes omitted)
The RANZCP also released a response to a letter signed by some 17 of its members arising from the Cass Review. That response apparently issued on 29 May 2024, and provides:
The college is committed to respectful, sensitive and appropriate mental health care being provided to individuals who identify as LGBTIQ+. Being Trans or Gender Diverse is not a mental health condition, and the RANZCP unequivocally supports the rights of trans and gender diverse people to have equal access to safe and effective mental health care that is underpinned by dignity, empathy and respect.
The Cass Review Final Report is one of a number of reviews on healthcare for trans children and transgender health. The RANZCP acknowledges the dialogue and academic debate that arises from the publication of reports which review emerging evidence and the subsequent recommendations that are made.
Consistent with Position Statement 103: The role of psychiatrists in working with Trans and Gender Divers people, the College continues to acknowledge that while a number of major professional organisations support the use of puberty suppressants and cross sex hormones for adolescents, we recognise that health authorities in some European countries have recommended restrictions be placed on their use.
The College does not call for the Government to commission an Inquiry following the release of the Cass Review. The College does continue to support the development of a nationally consistent framework for service provision and outcomes monitoring in order to enable the provision of consistent high-quality specialist care for people experiencing gender dysphoria.
The College emphasises that assessment and treatment should be patient centred, evidence-informed and responsive to and supportive of the child or young person’s needs and that psychiatrists have a responsibility to counter stigma and discrimination directed towards trans and gender diverse people.
(Joint tender bundle, page 438–439) (Bold Emphasis added)
The respondent pointed to different models of care for transgender adolescents in other countries, which have recommended against the administration of cross-sex hormones. For example, they relied upon a publication by the Swedish National Board of Health and Welfare which deemed “that the risks of … gender-affirming hormonal treatment currently outweigh the possible benefits and that the treatment should only be offered in exceptional cases.” (Joint tender bundle, page 2036).
Presumably these were said to cast doubt upon the wisdom of the State Government policy as it applies to NCL, and to some degree challenge the position statements and models of care promulgated by professional bodies relevant to Australia.
The role of a court is rarely to critique published positions of a profession generally, or the policy of executive government, much less foreign governments, in the broad. Nor should courts embrace the resolution of political arguments except in the most unusual cases. And yet, when it all boils down, that is precisely what the respondent was asking me to do, contrary to authority and counsel for the respondent’s repeated assurance that she was not trying to conduct a Royal Commission (Transcript 11 June 2024, page 557 lines 10–14 and 17 June 2024, page 994 line 11 to page 995 line 3).
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. I therefore give the State Government policy weight, and the Australian Standards of Care, Position Statement 103 and the WPATH SOC 8 great weight, because they are models of care arrived at by consensus of the relevant professional bodies. I know less about the processes behind the Endocrine Society Clinical Practice Guidelines, but nonetheless also regard them as authoritative.
The various expert witnesses
Dr H
Dr H is a child and adolescent psychiatrist, having qualified in that specialty almost 10 years ago. According to Dr H’s curriculum vitae, Dr H has worked as a specialist at a Child and Adolescent Mental Health Service and also at a hospital’s Paediatric Endocrine Service. Since obtaining their qualification, Dr H has also conducted a limited private practice.
It was only fewer than 5 years ago that Dr H took up the position of psychiatrist at NCL.
Dr H gave evidence of the model of care offered at NCL, including the role and interplay between the various staff within the multi-disciplinary team there.
Dr H also gave evidence of their engagement with Ash, and their eventual diagnosis of him as having gender dysphoria.
In Dr H’s report, Dr H detailed the likely effects of testosterone on Ash, and conversely the likely effects of not prescribing testosterone, which was “[Ash’s] health and emotional wellbeing is almost certain to deteriorate without testosterone” (Dr H’s Report dated 21 June 2023,page 4).
In response to criticisms made of Dr H by the respondent’s witnesses, in Dr H’s second affidavit of 6 June 2024, they explained the diagnostic process at NCL, and went into greater detail about their involvement with Ash and the parties.
In cross-examination Dr H said that at NCL they were obligated to follow the State Health Department’s model of care, and specifically there was an exchange as follows:
HIS HONOUR So what if you were to go rogue and decide that you wanted to do something completely different? Would that impact upon funding or ---?
[DR H:] --- Yes. That would be – we don’t do that. It would impact on – on our ability to continue to provide care; it would impact on funding; there may or may not be notifications around ability to practise. We follow the guidelines.
HIS HONOUR And that’s not a voluntary thing. That’s a mandatory thing?
[DR H:] --- yes. That’s – we’re a [State Government] health clinic. We do what our boss tells us.
(Transcript 11 June 2024, p.608 lines 4–11).
Later Dr H was cross-examined as to whether “puberty blockers and cross-sex hormones, is your view that this is more of a human rights issue, if you like, rather than a medical issue” (Transcript 11 June 2024, p.610 lines 2–3). Although that question was objected to, ultimately, to assist the parties, I intervened and reformulated the question:
HIS HONOUR: ... I think it might be being said, [DR H], that there’s a possibility that there’s a – I don’t want to use the word militant. That’s not quite the right word, there there’s a – sort of human rights component to [NCL’s] ideology. As you aware of anything along those lines?
[DR H:] --- I believe health care is a human right. I believe that young people are to be believed, and I believe that accessing treatment, as is – as you are ready for it, is right, but I am not ideologically bound in a crusade. I’m doing my job.
(Transcript 11 June 2024, p.611 lines 9–16)
Later still Dr H denied that NCL would “push someone in a direction” of any particular treatment (Transcript 11 June 2024, p.611 line 40).
Dr H denied that “[Ash] might just be a confused lesbian” (Transcript 11 June 2024 p.630 line 44 to p.631 line 11).
Further Dr H refuted the suggestion that there had not been a “comprehensive biopsychosocial assessment” of Ash (Transcript 12 June 2024, p.678 lines 29–31).
At Transcript 12 June 2024, p.693 lines 20–23 Dr H said:
[DR H:] … Testosterone will cause masculinisation, which is what [Ash] will want, which would mean an improvement in overall mental health and a decrease in the stress around being misgendered or outed.
Later questions and answers included:
[COUNSEL FOR THE RESPONDENT:]And [Ash] can commence medical transition with testosterone at the age of 18 with good effect?
[DR H:]--- Provided he has capacity to give informed consent.
[COUNSEL FOR THE RESPONDENT:]I’m talking about the impact, rather than the capacity, there is – able to do so with good effect?
[DR H:] --- Physically good effect, yes. As a psychiatrist, I would be concerned with his mental well-being during that delay, where the incongruence is ongoing.
(Transcript 12 June 2024, p.707 lines 33–38)(Emphasis added)
A significant part of Dr H’s evidence was given in answer to a question from senior counsel for the ICL:
[DR H:] … [Ash] demonstrated a persistent, insistent and consistent gender identity that is different from the sex he was assigned at birth. He has expressed consistently that he wants to change his body so that he feels more comfortable in his body and can fit in with his peers and live the way that he wants to live. He has tried his best to look the way that he wants to look with the tools on offer for him. He has changed his clothes. He has – he wears a binder or multiple layers of oversized clothes. He is trying his best to look as masculine as he can. Being distressed doesn’t mean that you have to be distressed all day every day. If this boy was told that he has to live as a girl or if he is outed it will cause him significant distress because his identity is male and he wants to be seen and perceived as male. …
(Transcript 12 June 2024, p.715 lines 32–43) (Emphasis added)
Although the respondent’s case was that NCL was a kind of conveyor belt where, once a child came through its door, there was nigh inevitable administration of puberty blockers and cross-sex hormones, Dr H’s evidence – which I accept – persuaded me of the precise opposite. Indeed, I formed the view that Dr H was profoundly professional in their work at NCL, and indeed as they said, was not at all ideologically invested in that work, beyond providing care for the children there.
Certainly I reject the criticism made of Dr H that their diagnosis of Ash as having gender dysphoria was some “tick and flick” exercise. Likewise, I did not detect any basis for the respondent’s comment under cross-examination, that NCL had been “whispering in their child’s ear for a very long time” (Transcript 7 March 2024, p.488 line 17).
Dr G
Dr G is both a general paediatrician and paediatric endocrinologist, who qualified in those specialties within the last five years. Dr G freely conceded that they were therefore still relatively junior.
Dr G has only consulted with Ash on one occasion in April 2023 to provide him with information about, amongst other things, masculinising therapy.
One would therefore have expected Dr G to be only asked a few questions, if indeed any, but that was not the case, as the respondent took the opportunity to use Dr G to test the science of cross-sex hormone therapy generally. I must say, given Dr G’s candid concession that they are still a junior specialist, the purpose of exploring such things with them is not clear.
That said, Dr G gave some spirited answers to those questions, including that it is simply impossible to base clinical practice only on randomised controlled trials and high quality research evidence (Transcript 19 June 2024, p.1138 lines 23–28), that the Cass Review “haven’t considered clinical practice or expert consensus at all” (Transcript 19 June 2024, p.1140 lines 1–3) and that randomised controlled trials for cross-sex hormones for the treatment of gender dysphoria “would be unethical to perform” (Transcript 19 June 2024, p.1140 lines 29–37).
Dr G also gave some helpful evidence about the timing of the visible and audible effects of the administration of testosterone, and detailed the sort of explanation they give patients about the impact of cross-sex hormones on fertility. Indeed in re-examination there occurred the following exchange:
[COUNSEL FOR THE APPLICANT:] And if authorisation is given, and [Ash] returns to see you, is that a topic which you would intend to raise again? That is, the advice to go and see a fertility specialist?
[DR G:] --- Well, yes, like at every stage that you go through a service like [NCL], this is kind of brought up over and over, to the point that at – some – sometimes they get annoyed at being asked about it so many times, when they have already expressed their opinion multiple times.
(Transcript 19 June 2024 p.1173 lines 7–12) (Emphasis added)
Again, I could detect no ideology which was driving Dr G in their role at NCL. Dr G struck me as someone just doing their job, under the policy which governs them.
I accept Dr G’s evidence.
Ms P
Ms P is a social worker, who prepared the family report in these proceedings. She expressed no opinion as to either how parental responsibility should be allocated, nor whether Ash should be able to have testosterone administered to him.
In cross-examination she said that given Ash’s maturity and emotional soundness, significant weight can be given to his views (Transcript 20 June 2024, p.1235 lines 37–41). She concluded that equal shared parental responsibility for either child would be unworkable (Transcript 20 June 2024 p.1252, lines 23–25). She also thought that the applicant’s conduct towards Lee in relation to her own issues was emotionally harmful (Transcript 20 June 2024, p.1274 line 17).
This is not a case where the Court can obtain much assistance by way of a family report. Ultimately, the only aspect of Ms P’s evidence I place reliance upon to is her conclusion as to the weight Ash’s wishes deserve, and that equal shared parental responsibility would be unworkable.
Dr O
Dr O has been a child and adolescent psychiatrist for over 10 years, although they completed their medical degree over 25 years ago, after which they held a variety of roles in the medical field.
Dr O has co-authored academic articles on a wide range of medical topics including, but by no means limited to, gender dysphoria.
Dr O has lectured at a university medical school for over a decade.
Dr O has been employed as a consultant child and adolescent psychiatrist at a gender service in a children’s hospital for almost a decade. (Dr O’s Report dated 27 February 2024, pages 8–9 and Transcript 17 June 2024, p.981 lines 22–32). They are a member of various professional organisations and are acknowledged in the Australian Standards of Care as having provided consultation and feedback (Joint tender bundle page 92).
Their report for these proceedings, excluding annexures, runs to some 254 pages, making the reading of it not easy for the faint hearted or easily distracted.
Unlike every other professional witness in this case, Dr O commenced their report with a discussion of terminology.
Dr O then addressed eight questions posed of them by the ICL. The last three invited them to respond to reports of the Respondent’s experts; leaving those aside, the 5 remaining questions were:
1)Please state your role, qualifications, and professional experience, relevant to the diagnosis and treatment of Gender Dysphoria in children and young people.
2)Please describe the current model of care provided to a 16-year-old with Gender Dysphoria within the public health network in Australia (and at [NCL], if different). Please refer to any relevant standards of care, …(including the [State Government policy]) and clinical guidelines.
3)Does the model of care provided in Australia (as described in your response to question 2 above) differ from the model(s) of care provided to young people in other countries, and, if so, how?
4)Please describe the risks and benefits to a young person undergoing Stage 2 treatment (being the administration of testosterone), and the risks and benefits of not undergoing such treatment.
5)What are the rates of detransition for young people undergoing Stage 2 treatment?
(Affidavit of [Dr O] filed 27 February 2024, Annexure A page 4)
It is simply not possible to comprehensively summarise their detailed responses to those questions, whilst still, hopefully, keeping these reasons readable, but some important aspects are:
(a)at pages 44–46 they detailed the extensive consultative process which underpinned the Australian Standards of Care and the WPATH SOC 8 it being:
…incontrovertibly clear that [the latter] provide the best available guidance for the care of trans and gender diverse people, and people with Gender Incongruence and Gender Dysphoria, across the lifespan, including children and adolescents;
(b)at page 53 Dr O stated:
There is a very clear medical and psychological professional consensus that testosterone and estrogen gender-affirming should not be started on a whim, or in a hurry. It is always a big decision, for older adolescents and for adults. For estrogen or testosterone, as for puberty suppression, the doctor does not “recommend” the treatment. The patient requests the treatment if they strongly, consistently wish for it and feel that they need it, and they feel that they will not be OK without it.
(c)at page 56, having traversed Ash’s history, they said:
“It appears that four years elapsed between coming-out as transgender to his parent in 2019, and being deemed eligible for testosterone treatment in 2023, which I would consider a substantial duration of time of a young person (who has completed female pubertal development) demonstrating the continued stability of his male identity and of his wishes to live as a male and to have masculinizing treatment. It appears also that the [NCL] multidisciplinary team had known [Ash] and his family for well over a year at the time of providing their professional opinion to the Court in favour of testosterone treatment. This does not seem in keeping with a rushed approach.”
(d)at page 57:
It is understood that treatments with permanent effects, such as testosterone, should not be commenced unless a person’s gender identity and wishes have been stable for an extended time (years), so a young person presenting with this kind of acute distress is not eligible to commence testosterone.
(e)at page 87 there appears:
In my view it is important not to “throw the baby out with the bathwater”. I don’t support mastectomies for 13 year olds. I do sometimes support access to testosterone or estrogen treatment for Gillick-competent 16 year old transgender young men and women who have demonstrated long-term stability of their gender identity and treatment wishes, who strongly request the treatment. The two are not the same thing. But much of the backlash against gender-affirming health care for minors, in my observation, appears to inappropriately conflate all gender-affirming medical and surgical treatment, and even support for social transition, as if all of these were the same, and as if all of them were inappropriate and harmful. This is not clear thinking.
(f)at page 101:
It is quite important to recognise that transgender men in general don’t decide that they want testosterone treatment in order to achieve some hoped-for secondary mental health benefit such as reduced anxiety or reduced depressive symptoms, or even in hope of experiencing fewer suicidal thoughts or impulses. The person in this situation usually wants testosterone in order to look, sound and smell more like a man, because he feels that he is a man. He hopes to look, sound and smell more like a man in order to feel more right, less wrong, in his own self. He likely also hopes to look, sound and smell like a man in order to be more easily recognised as an adult male by others. He is likely to be hoping for a reduction in the intensity of his sense of gender incongruence, and a reduction in the intensity of distress of gender dysphoria. His treating doctors will have provided him education that testosterone treatment may not result in improvement in any mental health problems he may have prior to commencing it.
(Emphasis as per original)
(g)at page 103:
All of the studies referenced to support the following statements are studies reporting actual observed data from medium-sized to larger-sized groups of transgender young people. I have not referenced opinion pieces, or single case reports, or case series of a handful of patients in this section. All of the studies cited here are observational studies (not experimental designs) and therefore must be described as “Low Quality” or “Low Certainty” evidence according to the GRADE approach, and the meaning of this is discussed at length in my response to question 6. Stating that this is “Low Quality” evidence does not mean that the studies are completely useless and uninformative and to be utterly disregarded. That would be a misunderstanding of the terminology used in the discipline of Evidence-Based Medicine. It does mean that they must be interpreted while bearing the methodological limitations of each study in mind. The studies represent what has been learned to date by researchers who have followed the wellbeing of groups of trans young people who have accessed gender-affirming treatment, in thirteen different countries and multiple centres, by many different authors, sometimes making comparison to those young people who have not accessed gender-affirming treatment, or to general population data.
No very long-term follow up studies are available to inform our thinking about likely outcomes for the mental health of a 16 year old commencing testosterone treatment for Gender Dysphoria, although there are several research cohort registries based in paediatric specialist gender services worldwide, including at least three in Australia, which are committed to providing long-term follow up and reporting these findings – the quality of the data available is expected to improve over time. However, it is unlikely to ever be possible to carry out randomised placebo-controlled trial studies in this area, for a number of pertinent reasons, which are discussed in further detail in my answer to question 6 (Nardini, 2014).
(Emphasis as per original)
(h)at page 104:
If testosterone treatment is authorised, I would expect a young person in [Ash’s] situation to experience some immediate sense of psychological relief and happiness, related to the sense that their wish to affirm their male gender has been recognised, and in anticipation of the future outcomes (masculinising body changes) that they desire.
I would expect that a young person in this situation would also experience a satisfactory sense of increased personal autonomy, the freedom to make their own health care decisions as a young adult, on a par with the other health care decision making freedoms which are accorded to Australian adolescents (regarding autonomous and private decision-making and health care access for contraception, termination of pregnancy, vaccination, mental health care, etc.) This would likely be associated with some relief of their probable current sense of frustration, and perhaps sadness, that their parent did not feel able to validate the young person’s identity and support the young person’s perceived care needs. There might also be some relief of a sense of frustration and sense of being controlled, because the system of health care provision and legal parental informed consent requirements posed barriers to the young person taking the steps which they would otherwise have wished to take sooner.
In the medium and long term, a young person in [Ash’s] situation, having commenced testosterone, would gradually experience the development of masculine body changes from testosterone over months to years. Testosterone is very effective in producing masculinising body changes, becoming noticeable from about two to three months, and developing over the course of two to three years and beyond, through life for as long as the person continues to take it, with some irreversible effects which would continue unchanged should a person decide to stop it, and some largely reversible effects. (Mahfouda et al., 2018; Hembree et al., 2017).
(Emphasis as per the original)
(i)at page 105:
The effects of testosterone are limited, and a young person in [Ash’s] situation may not experience all of the body changes that they would wish for. There is no medication or surgery which can make a birth-registered female person become entirely as if born male. There is the potential for some disappointment about this. It is also sometimes the case that a young person in this situation may not actually wish to be entirely as if born male, even if they could; depending on their personal gender identity and wishes and their experience of their body, and other aspects of their identity and life experiences, and their experience of being a transgender person, potentially including positive self-acceptance of being a transgender person, a sense of pride, and connection to a sense of community.
(j)they discussed the likely benefits of testosterone at pages 108–113, and the risks at pages 115–117;
(k)they expressed the importance of the stage of life where Ash presently is (at page 118);
(l)they discussed the rates of detransition (between pages 122–136) and quoted the aspect of the RANZCP’s Position Statement 103 which deals with detransition (at page 124);
(m)they comprehensively addressed the “conveyor belt” theory at pages 139–140 as follows:
As the largest and oldest paediatric gender clinic in Australia, the Royal Children’s Hospital Melbourne gender clinic published a 10-year review of the clinical profile of patients and their care and treatment trajectories under the gender-affirming model of care (Tollit et al., 2021). Patients were included in the retrospective study if they had an appointment with the RCHGS between January 2007 - December 2016. 359 patients met these criteria. (Patients who were referred to the service, but never actually came to any appointment, were not included.) Of those 359 patients, although 81% of patients met eligibility criteria for the diagnosis DSM-5 Gender Dysphoria based on the clinical characteristics recorded in the intake notes, the rates of hormonal treatment were much lower, with 29% of young people ≥10 years of age receiving puberty blocking treatment and 38% of adolescents ≥ 16 years of age receiving gender-affirming hormones (i.e. testosterone or estrogen). This is a factual, statistical demonstration that health care in the gender-affirming model at a specialist paediatric gender clinic is not an automatic conveyor-belt to puberty blockers and hormones. Some patients want and need these treatments, and they are able to access them, after appropriate multidisciplinary team assessment and family consultation; this is appropriate. Other patients don’t want and don’t need these treatments, and don’t have them. The paediatric gender clinic at which I work has a similar observational research study currently in preparation for publication, which has similar findings.
(Emphasis as per the original)
(n)at page 165:
In my opinion, the World Professional Association for Transgender Health Standards of Care for the Health of Transgender and Gender Diverse Individuals version 8 should be considered authoritative guidance, as it is by far the best available guidance at this time, and is informed by decades of expert clinician experience, and extensive consumer / lived experience consultation and integrated participation in the development. I described the process of its development, including externally commissioned Systematic Reviews, expert consensus by Delphi process, and worldwide healthcare consumer and professional consultation, in my answer to Question 2.
It is worth remembering that according to modern evidence-based medication and guideline development, strong recommendations can be based on “Low Quality evidence”, and clinical care decisions can be based on “Low Quality evidence”, in some situations. (Chong et al., 2023).
(Emphasis as per the original)
(o)they addressed recent trends of increasing numbers of children, especially adolescent girls, presenting at gender clinics (at pages 179–185) and addressed possible causes (at pages 185–189);
(p)they extensively addressed the competency of adolescents to make decisions attended by risks including, importantly, at page 208:
Capacity to make decisions does not guarantee against regret about those decisions, whether health care, marital, financial, or other, at any age. Competent people have the right to be afforded the “dignity of risk”.
(Emphasis as per the original)
I think that unrealistic. NCL does not offer surgical interventions, and were not proposing them. I do not accept that discussing other potential later interventions, which although desired by Ash, might not be possible, was critical to him adequately understanding the risks of testosterone.
As to the alleged lack of a biopsychosocial assessment, firstly Dr H positively asserted that such had been undertaken by NCL in respect of Ash, and Dr H was not directly challenged as to that (Transcript 12 June 2024, p.678 lines 38–39). But even more curious was that, although it was said that a biopsychosocial assessment was necessary for a proper diagnosis of gender dysphoria, nonetheless ultimately the respondent accepted that Ash has that condition.
It was all rather confusing.
That then only leaves the clear fact that Ash’s brain, and hence his cognition, is still developing. However that must be the case for every child or young person under the age of 18, and indeed for years thereafter. To say that, of itself, precludes weight being given to Ash’s wishes, would exclude every child’s wishes to take cross-sex hormones from ever being given weight. If that is what the respondent was arguing – and it was never really clear – then I reject it and prefer Dr O’s evidence.
Moreover it cannot be ignored that in less than 24 months’ time, Ash will be able to medically do whatever he wants. It would obviously be farcical to reject what at 17 year and 11 month old young person wants to do as being undeserving of weight, when a month later they can do it anyway. Similar considerations apply – albeit with lesser force – to someone Ash’s age.
That is all the more so because given the lapse of time, as I have said, Ash would need to re-engage with NCL before testosterone administration could commence, including being reassessed for Gillick competence, having the risks of testosterone explained at length again, and then potentially be referred off for specialist fertility counselling.
Ash is not the only patient at NCL, and he will need to rejoin the queue, although not necessarily go back to the very end of it.
The evidence, whilst not overly clear, is that there would be no less than six months, and perhaps nine months or longer, delay between any judgment permitting Ash to take testosterone, and his actually starting it. Further, there will be a delay of between one and three months until irreversible effects of it emerge.
The maths is pretty clear – Ash will be approaching 18 by the time irreversible effects of testosterone emerge. I have little doubt that at 18, Ash would seek testosterone in any event. His wishes therefore deserve real weight.
There was an allied argument mounted by the respondent, mostly in cross-examination, that any weight given to Ash’s wishes should be discounted by his somewhat tumultuous life to date, including:
(a)leaving (a reportedly unsafe) life in Country M for Australia;
(b)his parents’ acrimonious separation, including enduring them continuing to co-habit for some months;
(c)the transphobic bullying and the consequential living “stealth.”
Boiled down, what this all really seems to be saying that Ash’s life experience, to some degree, precludes weight being given to his wishes. Of course some might think it does exactly the opposite, but while I do not so conclude, I find nothing in his life to date which would justify giving his wishes less weight than a child who had not had those experiences.
In the circumstances of this case, I give Ash’s wishes very considerable, but not of themselves determinative, weight.
Testosterone may alleviate Ash’s gender dysphoria (points (b) and (g))
Although at times I sensed that the respondent’s witnesses were ambivalent about whether gender dysphoria is actually a genuine condition justifying inclusion as an available diagnosis, (see, for example, Dr E’s evidence at Transcript 1 July 2024 p.1313 lines 21–24) nonetheless the respondent did not press such an argument before me. Rather, although initially their case was that no child at all should be able to have testosterone administered (Transcript 4 March 2024, p.47 lines 8–11), ultimately it was that unless the child was an extreme case – for example at high risk of suicide – if cross-sex hormones were withheld, then psychotherapy was the only appropriate response to a gender dysphoria diagnosis. Of course, from the respondent’s perspective rather inconveniently, the Cass Review said that there was not good evidence to show that psychotherapy was of any benefit either, or at least of any more benefit than cross-sex hormones are, which really means that the invitation the respondent advanced was to do nothing that had any high-quality scientifically demonstrated benefit for Ash.
Dr G was at pains in their evidence to emphasise that a patient cannot choose what impact testosterone will have on them, nor can it be confidently predicted. But some changes can be reasonably expected, including changes to appearance by the growth of facial hair, which I would think is generally regarded as a masculine trait. There may also be deepening of Ash’s voice, and probably there will be at least some change in that respect, but how deep it becomes and how fast it gets there, is unknown. As a general proposition, I accept that any masculinisation of Ash will be well received by him, at least initially, and perhaps in the long term. Indeed in final submissions even the respondent conceded that, at least in the short term Ash would be happier than he presently is if he commences to take testosterone.
If the effect of testosterone on Ash, caused the growth of facial hair and what I assume to be a more masculine sounding voice then I am satisfied that he would be happy with such an outcome, although the extent of his happiness will likely depend on the extent of the masculinisation. But it will clearly in the short term alleviate some of his dysphoria.
Of course there is the real risk that testosterone may not achieve all that Ash wants it to, such that he may still be unhappy with having a body – or more precisely some features of his body – which he would prefer were different. He may therefore still be to some degree dysphoric. But overall, the evidence persuades me that there will be some masculinisation, and thus some alleviation of his dysphoria if testosterone were to be administered to Ash, although when, for how long, and to what extent, remains unknown. As I have earlier noted, it is therefore therapeutic.
Testosterone is supported by the applicant but not the respondent (points (d) and (j))
The applicant has positively supported Ash through this complex time of his life. The respondent probably believes they have appropriately supported him too, albeit through the prism of their own views and opinions. This is not a court which directly judges litigants’ beliefs.
Ultimately I give this no weight.
There is no better help for gender dysphoria (point (e))
I have already noted that the Cass Review says that, in effect, there is no means of symptom amelioration for gender dysphoria which enjoys a high quality scientific research basis. That said, Dr O did point to a subsequently published paper which, they say, does show a scientific basis for medicalised treatment, although the respondent’s expert witnesses sought to refute that. As I have said, I accept the evidence of Dr O, who was simply a commanding witness in all respects.
Essentially the Cass Review’s criticism of medicalised treatment is that there is only clinical experience – the lowest scientific proof – to support the benefits of cross-sex hormone administration for the alleviation of gender dysphoria. The respondent thus says that the relevant professional guidelines are all therefore founded on an insufficient basis. However, as I pointed out earlier in these reasons, in fact even the Cass Review concedes that in the absence of high-grade research, professional consensus is an acceptable basis for action.
The respondent’s argument may or may not be right, but to put the question bluntly, 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? The wholly untested Cass Review does not help much, or even at all, since it could only (in this case) recommend that there is nothing that can be done to help Ash. Indeed I must confess the “do nothing” approach of the respondent (albeit practically cloaked as “psychotherapy” – which Ash will not likely accept, even if it could be funded, which on the evidence it could not), troubles me because it seems to work on the assumption that doing nothing is better, which seems to be just kicking the can down the road until Ash is 18, in the hope that, given time, he will change his mind.
The reason that worries me is because it is a strong echo of what the respondent first said when they learnt of Ash’s gender dysphoria namely, that “it’s just a phase.” Of course it might be, but no one can say, and on the evidence, I am persuaded even if it is “just a phase” it will at least continue to the time Ash turns 18, at which time clearly he will most likely start testosterone.
Dr O said this in relation to psychotherapy at pages 202–203 of their report:
There appear to be differing opinions as to what constitutes conversion therapy. D’Angelo and colleagues seem to devalue the reported experience and perspective of the patient: “As we have demonstrated, it is not uncommon for agenda-free, neutral therapy interventions to be experienced by the subjects as non-affirmative.” [Dr D] in paragraphs 71 through to 78 does not provide a convincing explanation as to why an approach which involves blocking / preventing a person from accessing wished-for gender-affirming treatment for which they are otherwise eligible, in order to attempt to make them engage in extended (and presumably expensive) frequent psychotherapy for an unclear length of time, presumably years, - should not be characterised as conversion therapy. The covert intention appears to be to prevent, delay, and ultimately deter a medical gender transition. The stated intention of preventing the apparently relatively low risk of regret of irreversible effects of medical or surgical treatment appears to emphasise beneficent paternalism over respect for autonomy, in a way that is difficult to justify.
In summary, if a person who has Gender Incongruence or Gender Dysphoria, or a person who is transgender, wants psychological therapy help, they can access it voluntarily, they are free to use it as they wish, and they are reasonably likely to find it helpful on their own terms if they can find a therapist who listens to them and respects them, and does not invalidate their self-knowledge. On the other hand, compelling participation in therapy for someone who feels clear that they no longer need therapy, at best wastes their time and money, and has significant potential harms, especially if it is clear to the young person that there is an unspoken wish from the therapist and parent that the young person could stop being transgender, and an intention to delay with the hope that this may occur: including potentially making them feel a sense of frustration, inadequacy, and shame, and teaching them to lie and hide their true feelings.
(Dr O’s Report dated 27 February 2024) (Emphasis added)
I accept that evidence.
Ultimately this issue is rather neutral.
Traverse of s 60CC(3) issues
I accept that Ash would benefit from a meaningful relationship with both parents, but has chosen at this time to have little to do with the respondent, given their refusal to fully embrace Ash’s wishes especially as regards testosterone.
The question of protection of Ash from harm is live, but it does not arise from abuse, neglect of family violence.
I have discussed Ash’s views at length above.
There is no need to further elaborate on Ash’s relationship with either party.
There is some criticism about the respondent’s failure to properly engage with NCL, of which they plainly hold a poor view.
None of s 60CC(3)(ca), (d) or (e) are engaged here. I have already extensively traversed maturity, sex, lifestyle and background and his transgender characteristic.
Neither sub-section (h) or (i) are engaged here.
I have sufficiently addressed the question of family violence earlier.
There is a risk of further proceedings in that the question of Gillick competence for Ash cannot be determined on the current evidence, as it is very out of date. There is nothing I can do about that in formulating orders.
I can identify no other fact of circumstance relevant to this issue.
Evaluation
I weigh all these matters as clearly supporting the administration of testosterone to Ash as being in his best interests. I give particular weight to his wishes, the likely alleviation of at least some of his dysphoria (hopefully therefore enabling him to resume being a more “normal” teenage life and especially in-person schooling for his final year), and the fact that delaying administration until court order is not needed is, in this case, nothing more than a fond – perhaps desperate – hope that by the time he is 18, Ash will have changed his mind. The evidence could not persuade me that such hope is at all likely of being realised. Far more likely, given that despite it causing extraordinary adversity and real distress, all of Ash’s adolescent life – and nearly a third of his entire life – has been lived as male, is that it is a deeply ingrained part of who he is, and will likely remain so. Anything he can do to reduce his dysphoria he will do.
I should also advert to a matter no party pressed, but which does concern me (as it did Dr O) and that is that although off-prescription supply is illegal, nonetheless in Australia testosterone appears to be readily available to purchase without prescription, and hence there is some – perhaps in this particular case only slight – risk that Ash could access it via such a method, and hence administer it without supervision – medical or otherwise of any kind – at whatever dose he thought appropriate. That could be a disaster.
Irrespective of the allocation of parental responsibility, I am satisfied that, assuming he is Gillick competent, then affording Ash the opportunity to receive testosterone is in his best interests.
I should repeat that the evidence as to Gillick competence is very stale, and indeed NCL would need to undertake a new assessment. More, that assessment will be in some months’ time. That very much informs the nature of the order which I can, or at least would be prepared to, make. Absent being satisfied of current Gillick competence, actual authorisation of cross-sex hormones could not be responsibly ordered. The only way to deal with it properly would be to give parental responsibility to the applicant for that health issue. However if parental responsibility is given to them solely then it will form part of that in any event, and needs no separate order.
PARENTAL RESPONSIBILITY
Subject to what I have just said, the following points tell in favour of equal shared parental responsibility for Ash, or against sole parental responsibility to the applicant:
(a)Until separation, the parties had managed to co-parent Ash successfully, although he reports parental family violence, arguments and manipulation perpetrated by the respondent;
(b)There have been some recent illustrations of child focussed communication between the parties;
(c)It is likely that the respondent’s life experience would be of value in decision making for Ash, and being involved in doing so may help repair their relationship;
(d)Sole parental responsibility might be exercised by the applicant in a way which does not repair, and may further harm, the relationship between Ash and the respondent, although the applicant has not so acted to date;
(e)The applicant’s post separation, and particularly recent, parenting of Lee has, for what ever reason, not been successful, and may have technically comprised abuse.
Again given that the testosterone issue has now been resolved, the following points are in favour of the applicant having sole parental responsibility for Ash, or against equal shared parental responsibility:
(a)Post separation the parties have not, until very recently, been able to engage in child focussed communication, much less joint decision making, which suggests equal shared parental responsibility might be simply unworkable;
(b)Ash lives with the applicant and has little current contact with the respondent;
(c)Ash has a poor relationship with the respondent;
(d)The respondent has a very poor opinion of the applicant;
(e)As between the two parties, the applicant presents as more attuned to Ash’s emotional needs.
Ironically now that the issue of testosterone has been resolved, the simple answer to who should have parental responsibility for Ash is that it likely doesn’t matter, because there is probably no other major decision left to be made before he turns 18. More, given that Ash presently has decided to have almost no relationship with the respondent, why he would want them involved in decision making for him is quite unclear.
However, and despite the parties’ recent somewhat civil communication about Lee, I could not possibly be persuaded that there is any sufficient history of recent joint decision making so as to think they could discharge the obligations of equal shared parental responsibility, as Ms P opined.
The respondent, in rather strong language, claimed that in responding to Lee’s own issues, the applicant emotionally abused her, such that the presumption of equal shared parental responsibility was displaced. Yet they sought an order for equal shared parental responsibility in respect of Lee! It was all rather perplexing.
I am well satisfied that an order affording the applicant sole parental responsibility for Ash is in his best interests and will so order. Such an order will permit them to make decisions about the administration of testosterone; although for an abundance of clarity, I will specify that the order includes any decision in relation to the administration of testosterone.
WHO SHOULD HAVE PARENTAL RESPONSIBILITY FOR LEE
This is a largely sterile debate. Lee lives with neither party, and at least presently seems unlikely to return to doing so in the foreseeable future, and hence neither could in fact exercise parental responsibility over her in the current circumstances. Given that, in practical terms it probably matters not one jot who has titular parental responsibility for Lee, as it is practically meaningless.
I am therefore not persuaded that it is in Lee’s best interests, at least at present, to fashion likely useless orders for parental responsibility. The greatest flexibility available is to make no order, thus leaving s 61C of the Act as governing the issue. I say that because if, perchance, she returned to live with one of the parties, they would then have common law powers of parental responsibility. The recent insertion of s 61CA does not persuade me otherwise.
OTHER ORDERS
Otherwise the parties were in agreement as to parenting orders for both children, and hence I am satisfied they are in their best interests, I will pronounce them.
CONCLUDING OBSERVATIONS
Some may construe this judgment as a judicial foray into politics, but it most definitely is not. Such observers may also read this judgment as some kind of refutation of the Cass Review and the views of health professionals who adhere to similar views as expressed in that review, but again it is no such thing. Whilst the Cass Review appears to have some deficiencies, blind spots and limitations, ultimately that is a matter for the UK Government, not an Australian court, to determine.
Others may view these reasons as a general endorsement of the administration of cross-sex hormones to children; again that would be to misconstrue what I have determined, which is only what is in the best interests of Ash on the unique facts of this case. Indeed I feel compelled to say that I suspect that there already is, and will in the future, be Australian “regret” litigation in relation to cross-sex hormone administration to children; nonetheless I have earnestly tried to ascertain what is best for Ash.
I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 15 November 2024