Judge warns doctors over trans hormone consent

Doctors have been warned by the courts to stop giving teenagers irreversible transgender hormones that potentially sterilise them without first checking that both parents agree.

In an explosive case where a 15-year-old with the pseudonym “Imogen” was given a female oestrogen hormone drug without her mother’s knowledge or consent, senior Family Court judge Garry Watts said the most influential trans youth medical treatment guideline had got the law wrong.

The guideline from the Royal Children’s Hospital in Melbourne — hailed by the journal The Lancet for its “child-led” and “gender-affirming” approach — is used by all major children’s hospital gender clinics in Australia.

The opposite-sex hormone oestrogen is given to “feminise” transgirls who were born boys, while transboys are started on lifelong testosterone. This is part of a three-stage medical transition within the controversial gender-affirming treatment model spearheaded in Australia by RCH.

The hospital’s guideline for treatment of trans youth who suffer “gender dysphoria” over their biological sex tells clinicians and GPs that while “obtaining consent from parents/guardians for commencement of hormone treatment is ideal, parental consent is not required when the adolescent is considered to be competent to provide informed consent”. This is wrong, Justice Watts said in his re Imogen ruling earlier this month.

“Any treating medical practitioner seeing an adolescent under the age of 18 is not at liberty to initiate (puberty blockers, opposite sex hormones or trans surgery) without first ascertaining whether or not a child’s parents or legal guardians consent to the proposed treatment,” he said.

However, the judge found that Imogen was mature enough to understand the risks and ordered that “stage two”, irreversible opposite-sex hormone treatment go ahead. The Family Court is believed to have never found a child too immature to consent to any of the three stages of medical treatment.

Re Imogen is the first case in which the court has agreed to hear expert evidence critical of the gender clinic medical model, amid intensifying debate about the safety, benefits and risks of these interventions with often troubled young people.

A years-long campaign by RCH gender clinic director Michelle Telfer, trans groups and human rights lawyers had led to a series of Family Court decisions making it easier for minors to get trans hormonal drugs and surgery.

The re Imogen ruling appears to be a setback for this campaign, and also a reversal for the trans health lobby to use a fast-track “informed consent model” to “mainstream” medical treatments for minors beyond low-capacity children’s hospital clinics and into public hospitals generally and GP practices across the country.

There is no available data on the number of minors across Australia started on lifelong cross-sex hormones, which are subsidised by the federal taxpayer through the PBS.

Parents automatically lose access to their children’s medical records once they turn 14, following a 2018 change to federal law under the Turnbull government.

Trans train: Sweden’s youth gender clinic sees a sharp decline in patients after media investigation.

“Psychiatrists have been urged to be very cautious about endorsing gender clinic treatments for under-18s after an international scandal over false claims of mental health benefits for transgender surgery.” @SEGMtweets https://t.co/cnnqipxMX7 @australian

— Bernard Lane (@Bernard_Lane) August 11, 2020
On Monday the gender clinicians’ and trans activist body, AusPATH, which endorses the RCH treatment guidelines and until recently had Dr Telfer as its president, congratulated Imogen on being allowed to “medically affirm her gender”.

The organisation welcomed the judge’s ruling as an endorsement of gender-affirming medicine but claimed that if treatment for young people was delayed by the need for court approval this could “lead to increased risks of anxiety, depression, self-harm and suicidality”. It gave no evidence for that claim.

AusPATH urged the federal Parliament to override Justice Watts’s decision so that doctors could give trans medicine to minors without first checking that both parents agree.

Federal Attorney-General Christian Porter, who intervened in Imogen’s case, said the Watts ruling on parental consent was “consistent with the submissions I made to the court, and there is no intention to legislate on this issue”.

Mr Porter pointed out that in previous cases parents had agreed on treatment, leaving the role of the court unclear when they were in conflict.

“The decision in Re Imogen has clarified that court authorisation is required in the event of a dispute about the diagnosis and proposed treatment for gender dysphoria, with appropriately the best interests of the individual child in any particular matter being the paramount consideration,” he told The Australian on Tuesday.

Some researchers who support the gender-affirming model admit the evidence for these medical interventions is low quality, short-term or patchy.

The hormonal treatment — puberty blockers to stop natural hormones around age 10-12 followed by opposite-sex hormones around 16 — has the potential to make young people infertile, and may impair their sexual pleasure by making them incapable of orgasm.

The RCH guidelines — praised by Victoria’s Andrews government as the “world’s most progressive” and “the most stringent safety standards” — are significant in arguing that the minimum age of 16 for opposite-sex hormones is arbitrary, and intervention should be possible earlier on a case-by-case basis. The gender-affirming model claims young patients are happy with treatment outcomes.

Australian gender clinic @RCHMelbourne recommends discussion of fertility before puberty blockers start, and says boys can have testicular tissue frozen with a technique it admits is “experimental in pre-pubertal humans”. Blockers start as young as 10. https://t.co/q6QomTP2Qa

— Bernard Lane (@Bernard_Lane) August 24, 2020
In the global debate, a key issue is family conflict when one parent champions a teenager’s request for hormones as a medical emergency, while the other worries about the treatment itself doing harm, and feels pressured by doctors who claim a high risk of suicide if treatment does not begin.

Asked whether the Queensland Children’s Hospital gender clinic checked with both parents before giving trans medicine, a state government spokesman said: “We re-set broken bones, perform lifesaving surgery and bring babies into the world, all within a legal and ethical framework — the same applies to the way we provide care to patients who seek treatment at the Queensland Children’s Gender Service”.

The Children’s Hospital at Westmead, Sydney, which has a small-scale gender clinic that offers only stage 1 puberty blockers in-house, said it tried to get consent from both parents.

“When this is not possible, and after reasonable efforts have been made, the treating team will adopt an approach that does not delay access to treatment and is considered to be in the best interests of the child or adolescent,” a spokeswoman for NSW Health said.

The gender-affirming model considers children as young as 3 to be expert in their innermost gender identity, even when this is at odds with biological sex. Parents who question whether trans identity might mask underlying issues such as undiagnosed autism, mental illness or awkward same-sex attraction tend to be seen as a “transphobic” risk to the mental wellbeing of a child already suffering social stigma.

Part of the litigation against Britain’s Tavistock youth gender clinic falls away with news of an independent review of under-18 gender dysphoria treatment led by @Hilary_Cass and requested by @NHSEngland https://t.co/Ywrxg3VvQT

But in the re Imogen decision, Justice Watts said the RCH guideline gave incorrect advice on the law by claiming that after re Kelvin it was no longer necessary to get court approval for hormones to start, as long as the teenager was mature enough to give informed consent.

Justice Watts said if one parent or doctor disputed the teen’s capacity to consent, the diagnosis of gender dysphoria or the proposed treatment, the case had to be put before the court, which would resolve the disagreements.

He said he was simply restating what had been decided in re Kelvin, although he had to clarify a series of issues in the court’s secretive line of gender dysphoria cases. The federal Attorney-General and the Australian Human Rights Commission, which also intervened in re Imogen, disagreed on what the law required.

The court’s former chief justice Diana Bryant told The Australian she did not believe the law on gender dysphoria had been in a confused state in the seven years since re Jamie, the first trans case involving RCH’s advocacy and winding back judicial oversight.

Ms Bryant agreed it was possible that young people who came to regret trans medical treatment as a harmful mistake — treatment approved before the consent of both parents or guardians had been checked – might have cause for an assault action or negligence claim against the doctors.

This would turn on persuading judges that no minor could give informed consent to invasive treatments with long-term effects unknown even to gender clinics.

In the re Imogen ruling, Justice Watts also put on notice the unknown number of GPs taking up the fast-track “informed consent model” with teens aged 16-18 — a term used by the trans health lobby to mean rapid hormone prescription.

Safeguards, such as mandatory mental health assessment, are criticised by activists as “medical gatekeeping” and a “pathologising” obstacle to trans health rights. However, information sheets on risks are supplied to patients under this model.

The court was told that the NSW government-funded body ACON, an AIDS health lobby that has become a national player in trans activism, was pushing this consent model, setting 16 years as the threshold age for teens to go it alone with hormones and “overriding any parental objections or misgivings”, the judgement noted.

Under this model, promoted by ACON’s new TransHub website, GPs are willing to give hormones to self-declared trans youth aged 16-18 with no mental health evaluation and without the doctor checking whether or not parents consent.

Justice Watts said this was in breach of the law. This week TransHub posted a notice saying it was “updating” its information following the court’s ruling.

The conversion of established gay and lesbian organisations to trans activism, overriding same-sex attraction with the new idea of “gender identity”, has led to breakaway LGB groups in eight countries since last year.

This is driven partly by the belief that confused teenagers would emerge as LGB with healthy bodies if they were not turned into permanent medical patients by gender clinics.

One large Melbourne clinic, the Equinox Gender Diverse Health Centre, run by the former Victorian AIDS Council which is government funded, already offers this fast-track to hormones for trans youth once they reach 16. Equinox did not answer when asked whether it always checked with both parents before giving minors opposite-sex hormones, but released a statement.

High profile gender GP Fiona Bisshop, president of AusPATH, has claimed giving trans hormones is “not brain surgery” and she champions the “informed consent” fast track as superior because trans patients should not have to “prove themselves” and suffer the delay of “gatekeeping” with mandatory mental health assessments.

Dr Bisshop works in the Brisbane clinic of the private health provider Holdsworth House, which also operates in Sydney and Byron Bay.

She stepped up as AusPATH leader after the unexplained, mid-term resignation of Dr Telfer in July.

The Australian put questions to RCH, Dr Telfer, AusPATH, the Inner City Legal Centre, Holdsworth House, Dr Bisshop, and ACON. The Perth Children’s Hospital gender clinic would not comment.