A judge who helped decide a landmark case giving parents – not courts – the authority to approve puberty blockers for their children says the outcome might have been different if today’s medical evidence had been available.
A judge who helped decide a landmark case in 2013 giving parents, rather than courts, the authority to approve the prescription of puberty blockers for their children says the outcome might have been different if today’s medical evidence had been available.
Former Family Court judge Steven Strickland, who sat on the Full Court in Re Jamie, which authorised parents to prescribe children puberty blockers without the court’s consent, told The Australian that advanced medical evidence had shown it was “pretty clear” the treatment was risky.
“The medical evidence was the other way in Re Jamie, namely that the court could at least authorise that first step, because the medical evidence was that there was no risk involved,” he said.
“But now that’s quite different and there’s no dispute about that, that there are risks involved.”
The comments come in the wake of the Re Devin decision handed down by Family Court judge Andrew Strum earlier this year, in which he effectively took custody from a mother who wanted her 12 year old to receive puberty blockers, and prevented the child from accessing treatment. Justice Strum also said the Full Court might reconsider categorising puberty blockers as reversible in light of new medical evidence.
In the Jamie decision, then-judge Strickland, then-judge Mary Finn and then-chief justice Diana Bryant agreed that puberty blockers could be undone, and, as such, did not pose a serious danger to the child.
“Stage-one treatment of childhood gender-identity disorder is reversible, is not attended by grave risk if a wrong decision is made, and is for the treatment of a malfunction or disease, being a psychological rather than physiological disease,” the Jamie decision reads.
“As such, and absent controversy, it falls within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment.”
Justice Strum, after quoting the Jamie decision, said the evidence adduced in the Devin case “gives rise to the need to consider whether those findings, based on medical evidence a decade ago, remain factually correct for the determination of this case”.
“However, it is not for a court at first instance to consider, or even opine, in relation to the correctness of the legal principles established by the Full Court, which are binding upon it pending any further appellate reconsideration,” he wrote.
Mr Strickland told The Australian he had “no concern” about the outcome reached in Jamie, because “a judge can only reach a decision on the basis of the evidence before him or her, because a judge is not a medical expert”.
“Very much so in this area, the judge will be very reliant upon the expert before him or her,” he said.
However, he said Justice Strum was afforded access to a “significant” amount of medical evidence that did not exist in 2013, including Britain’s landmark Cass review, which recommended restrictions on medication for children with gender dysphoria.
“Justice Strum had before him a significant or a substantial body of expert evidence, looking at this matter from both sides, both from the gender-affirming side and the other side which has developed pace with the Cass report in the UK, which said there is not one answer to this, it’s not always the gender-affirming answer, you’ve got to look at other alternatives such as a therapeutic approach,” he said.
“That expansive evidence before Justice Strum allowed him, I think, to explore the issue in greater detail than had previously been able to be done, and allowed him to make his decision far easier. His decision wasn’t easy, no decision’s easy, but it gave him food for thought from both sides of the argument.”
In the Devin decision, Justice Strum found there was “no clinical consensus amongst the professional expert witnesses called by each of the parents and the Independent Children’s Lawyer”.
“If the medical experts cannot agree on the best way forward for the child, then great caution should be exercised when the treatment proposed by the mother and her experts is potentially life altering and irreversible,” he wrote.
Mr Strickland also sat on the Full Court for Re Kelvin in 2017, which removed the requirement for court authorisation of the provision of stage two treatment – cross-sex hormones. He said if Jamie were heard again, “there could be a different” decision in light of new medical evidence that there were risks involved with puberty blockers.
“With Re Kelvin, I don’t think there would be a different decision, frankly, because Re Kelvin is not inconsistent with what’s happening before the court,” he said. “It’s not a case of revisiting, certainly Re Kelvin. Re Jamie, a different kettle of fish perhaps.”
He said an alternative decision in Jamie would “depend upon the facts before the court in terms of the child”. “Every child is different, of course,” he said.
Justice Strum’s Devin decision also criticised the lead author of the nation’s guidelines on gender-affirming care, Michelle Telfer, for giving misleading evidence regarding the Cass report.
Professor Telfer was anonymised as Associate Professor L in the judgment, but was named after The Australian sought to have a statutory prohibition on the identification of Family Court witnesses overturned.
Justice Strum said Professor Telfer “disagrees with much” of the Cass review, which “manifestly runs contrary to her life’s work as an ‘advocate’”.
“It is submitted by the Independent Children’s Lawyer … and I agree, that Associate Professor L’s responses were ‘misleading or omitted findings/material that detracted from (their) opinion’ contrary to the obligations as an expert witness,”
Justice Strum wrote. “Some of the many examples proffered are concerning.”
He said she cheapened the suffering of victims of Nazism when she suggested a landmark review that recommended limitations on medication for gender-dysphoric children formed part of a wave of transgender oppression commencing with the Nazis.
Source: The Australian