Justice Tree, of the Federal Circuit and Family Court, made the remark yesterday in a protracted case1 where the parents are divided over a girl’s wish for cross-sex hormone treatment and where there are conflicting views about the relevance of England’s Cass report issued in April.
The court heard there were two other lengthy gender medicine cases now running, and the judge suggested it might reach the point where “the case for statutory intervention becomes overwhelming”—meaning law reform by federal parliament.
The court had the job of ensuring minors were competent to consent to puberty blockers, cross-sex hormones and surgery, such as double mastectomy, given the attendant risks. However, human rights lawyers and the gender clinic of the Royal Children’s Hospital (RCH) Melbourne argued this requirement was unnecessary and discriminated against trans-identifying patients.
In the 2017 re Kelvin case, the full Family Court agreed to wind back judicial supervision of treatment decisions involving irreversible cross-sex hormones, endorsing a claim by RCH Melbourne that advances in the medical science of gender dysphoria justified the change. Since that ruling, the court has only taken gender medicine cases where parents or doctors disagree.
In yesterday’s hearing, barrister Belle Lane, appearing for the parent opposed to hormone treatment, argued for the relevance of the Cass report to Australian clinical practice. She described it as the “most significant and comprehensive review” of gender medicine.
Ms Lane said her questions should be allowed, insofar as treatment policy related to the best interests of the child.
Justice Tree said the proposal was only to administer testosterone— “that’s all that’s proposed.”
“… with lifelong implications,” Ms Lane added.
Justice Tree said that whatever view he took of the Cass report, it would set no precedent and judges in future gender medicine cases could disagree with him.
And he said “the real problem” with re Kelvin was that it had “pretended” to be a case stated—a procedure where a court is asked to decide certain questions based on agreed facts—when the point had been determined.
Ms Lane said the full court in re Kelvin had failed to analyse the scientific evidence, and the agreed facts had included the assertion that there was a clinical consensus on gender dysphoria treatment internationally.
Justice Tree said re Kelvin would not “stand in the way” of a legal challenge arguing that cross-sex hormone treatment was “not therapeutic”.
Ms Lane suggested it might be cosmetic or experimental. Justice Tree said it either fixed a condition or it might be just some “swanning around in corporeal fancy dress”.
As for the Cass report, the judge said he would allow Ms Lane’s line of questioning “but on a tight leash”.