May 20, 2024

Australian judges need to review standards for gender dysphoria treatment

Most judges and lawyers in Australia know little about the white-hot debate amongst doctors over appropriate treatment for gender-dysphoric children. A survey of the latest developments by top Victorian family law barrister Belle Lane was given to judges of the Federal Circuit and Family Court last month. She contends that recent research is undermining many of the assumptions which have dominated gender medicine for the past decade.

“The evidence base around what is called ‘gender-affirming treatment’ has moved rapidly and much more is known about the asserted benefits of the medical pathway and risks,” Ms Lane writes, adding: “alternative treatment pathways have returned to prominence.”

She highlights a lack of consensus amongst doctors: “There is a lack of clinical consensus about what is being treated, the diagnostic process, whether a diagnosis is required, the asserted benefits, risks and outcomes of the medical pathway and what alternative pathways exist. This is occurring in a highly politicised atmosphere, with legislative changes that impact the rights of parents and professionals, all of which is making discussion of issues and concerns difficult.”

Australian “standards of care” are based on the “gold standard” Dutch model. However, she writes: “there are significant concerns about quality and applicability of the [Dutch] studies to the current cohort of children presenting at gender clinics.” Alarmingly, she asserts that: “The Dutch studies would not meet the standards of evidence-based medicine today.”

Furthermore, the characteristics of the patients have changed. “Many of the children have complex mental health, neurodiversity, and adverse childhood experiences. Most of these children would have been excluded under the original Dutch protocol, however now almost all the safeguards of the original Dutch protocols have been removed. Treatment is now based on a child’s subjective identity in a child-led process, a situation unheard of in other areas of medicine.”

Ms Lane argues that the law should revisit Re Kelvin, a 2017 case involving a child who wanted to transition. The judge concluded that if a child, the parents and the doctors all agreed on the path to be followed, there was no need for court approval. But this approach has effectively deprived the courts of access to the latest developments in how to treat gender dysphoric children.