For guidance on gender medicine, doctors in the public and private sector are expected to look to the NSW government’s 51-page Framework for the Specialist Trans and Gender-Diverse Health Service for People Under 25 Years, launched in July 2023.
That NSW Health document, welcomed by LGBTQ lobbies and showing signs of their activist influence, makes no reference to the risk of medical practitioners committing criminal offences under two state laws if they put some young people on the path to permanent infertility.
Beneath the heading “Informed consent procedures” it simply says that, “On a case-by-case basis, additional approval may be required from the NSW Civil and Administrative Tribunal.” Nothing is said about the potential criminal liability if this approval is not obtained.
Doctors would be expected to know that federal Family Court approval is required if the parents of a minor disagree over gender treatment such as puberty blockers, cross-sex hormones or surgery.
But the importance of the NSW state tribunal in this realm is not well known. Its permission may be needed in gender medicine cases where cross-sex hormones for a child younger than age 16—or for a patient aged 16 and above affected by cognitive impairment—are likely to lead to sterilisation.
Without permission, the doctor may be committing a criminal offence under potentially overlooked laws on the protection of minors and vulnerable people enacted in an era before the unprecedented trend of gender medicalisation.
Fear of future litigation may explain why the NSW Health legal advice is especially insistent on the need for Family Court approval in the case of potential disagreement among parents. Jurisdictions elsewhere have appeared untroubled by gender clinicians fast-tracking the treatment of minors with only the custodial parent on board. The tactic is to proceed as if there were no disagreement after choosing not to discover the attitude of the other parent deemed to be “unsupportive”.
But the relatively new concern preoccupying the NSW Health legal team arises from the interaction between over-confident gender clinicians and two state laws overseen by the NSW Civil and Administrative Tribunal.
First, s33 of the Guardianship Act 1987 is triggered “where the young person aged 16 years and above has a cognitive impairment such that they cannot understand the general nature and effect” of treatment that is reasonably likely to render them permanently infertile. (Sterilisation is a potential outcome of cross-sex hormones.)
I]f a NSW clinician prescribes cross-sex hormones for a young person contrary to this “special treatment” regimen of the Guardianship Act, it is a criminal offence carrying a maximum seven-year prison term.
The same prison term can be imposed for a breach of the second relevant state law, under s175 of the Children and Young Persons (Care and Protection) Act 1998.2
This deals with “special medical treatment” reasonably likely to leave a child younger than age 16 permanently infertile.
It may be a criminal offence to prescribe cross-sex hormones without approval from the tribunal “unless the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment to save the child’s life or prevent serious damage to their health.”
This exception, the NSW Health advice says, “will not ordinarily be available in respect of [gender-affirming medical treatment].” (That might surprise clinicians who present hesitant parents with a stark choice between “a dead daughter or a live son”.)
The current Endocrine Society guidelines, issued in 2017 and still cited by Australian clinics, suggest that children under 16 may be too immature to consent to cross-sex hormones, and admit “there is minimal published experience treating [children] prior to 13.5 to 14 years of age.”
However, the NSW under-25 framework belongs to the more recent, militant generation of guidance with no minimum age for cross-sex hormones.3
In July 2024, the NSW tribunal was presented with a test case comprising three proposals to treat minors younger than age 16 with irreversible cross-sex hormones.4
The three cases were heard together, with newsworthy judgments in October 2024, apparently unreported by mainstream media.
The separate representative lawyer, speaking for Lisa, said hormones were indeed necessary to prevent mental harm, and of course, Dr 3 and the Hunter New England Local Health District of NSW Health stood behind the treatment application.
But the ministry disagreed, and the tribunal rejected the application.
This is a rarity. Most reported legal proceedings, state and federal, have rubber stamped the gender medicalisation of young people.
The second case feeding in to the NSW Health legal advice involved “Jess”, another trans-identifying 15-year-old boy seeking oestrogen.
The suppression of Jess’s natural male puberty began a little later but even so, expert 1 testified that the risk of his becoming permanently infertile was not remote.6
And the ministry took the cautious position that it was indeed open to the tribunal to find that sterilisation was reasonably likely for Jess.
[N]otwithstanding NSW Health’s uncritical public promotion of gender-affirming care, the ministry adopted a real-world position before the tribunal.
“[The ministry] contends that gender dysphoria is not a life-threatening condition either at large or in Jess’s case,” the tribunal said.
The tribunal agreed, noting that oestrogen “would not, of itself, alleviate Jess’s depression and the co-morbidities which are contributing to suicidal ideation.
The third case dealt with by the tribunal involved a 15-year-old female, “Charles”. Like Lisa, this girl had her natural puberty suppressed early. She had spent almost five years on puberty blockers. Identifying as a boy, she wished to start on testosterone at the NSW Health gender clinic.
There are trans-identifying females who go off testosterone, conceive and give birth, but the cases reported in the literature appear to be women who had experienced natural puberty before they began cross-sex hormones.7
In this scientific vacuum, the experts at the tribunal appeared to take the view that testosterone is less destructive of female reproductive capacity than oestrogen is of male capacity.8
And so the tribunal, citing the increasing evidence of “trans males falling pregnant” after ceasing testosterone, concluded that permanent infertility was not “reasonably likely” for Charles.
This meant cross-sex hormones would not constitute “special medical treatment” under the Act and could go ahead without the tribunal’s approval.
But it is worth noting that, once again, the NSW Health ministry had adopted a more cautious position, submitting it was “open to the tribunal to find on the available evidence that the proposed treatment is reasonably likely to have the effect of rendering Charles permanently infertile.”