Navigating parental responsibility: the treatment of gender dysphoria in Re Ash (No 4) [2024] FedCFamC1F 777

Background

The Court has recently published the decision of Re Ash (No 4) [2024] FedCFamC1F 777. In this decision, the Court considered whether Ash, a 16-year-old, should be permitted to receive testosterone treatment. Ash was born a female and began to identify as a transgender male when he was around 11 years old. Since that time, he has lived as a male, including at school. Unfortunately, he was subjected to bullying and undertook distance education from years 7 to 9. Ash was formally diagnosed with gender dysphoria when he was around 14, in early 2022.

Parental Responsibility Dispute

As the Court’s decision is heavily redacted, we will refer to ‘Parent 1’ and ‘Parent 2.’ In around August 2022, Ash wanted to commence puberty blockers, but Parent 2 did not agree. Parent 1 commenced court proceedings as a result and sought sole parental responsibility for both Ash and his sister, Lee, who had a number of behavioural issues. At the time of the hearing, she was living with a friend and her family and had very little contact with her family. Parent 2 sought orders for equal shared parental responsibility, effectively to prevent Ash from obtaining gender-affirming treatment, and no order for parental responsibility in relation to Lee, with the effect that both parents would have power to make decisions. The Independent Children’s Lawyer (“ICL”) sought sole parental responsibility for Ash to be allocated to Parent 1 and no order for parental responsibility for Lee.

Legal Context

We note that although the Family Law Amendment Act 2023 and the new regime of parental responsibility commenced on 6 May 2024, because the final hearing commenced before that date, the old regime continued to apply.

Expert Evidence and Court Considerations

The Court considered evidence from multiple medical professionals. This case could be called a ‘battle of the experts’, and their evidence can be summarised as follows:

• Parent 1’s Experts: Parent 1 called evidence from Dr H (a child and adolescent psychiatrist) and Dr G (a paediatric endocrinologist). Both worked at the clinic which diagnosed Ash with gender dysphoria in early 2022. In very broad terms, they argued that “the administration of testosterone was a professionally well recognised, and if sought by the child, an appropriate, response to a diagnosis of gender dysphoria, and that those professionals who assert otherwise were a vocal minority.” (at [39])
• Parent 2’s Experts: Parent 2 called evidence from Dr D (a psychiatrist), Dr E (a general paediatrician), and Dr F (a psychologist, but who Parent 2 ultimately did not rely upon). Dr D and Dr E’s evidence was “essentially, that testosterone should never be administered to a child, and that prior to (at least) 18 years of age, psychotherapy should be the only response to a diagnosis of gender dysphoria.” (at [41]).
• ICL’s Expert: The ICL called evidence from Dr O (a child and adolescent psychiatrist), who “strongly advocated in favour of medicalised gender affirming care generally, and extensively traversed and critiqued the material which suggested to the contrary.” (at [40]).

Court’s Observations on Expert Testimony

In considering the evidence from the various experts, the Court observed that the State Government Department of Health which operates the clinic that diagnosed Ash, has established a model of care which includes the administration of testosterone to adolescents. There was also support for hormone treatment by the main national and international professional associations.

Significant criticism was directed at the experts called by Parent 2. Dr D appeared to argue that “the medicalised treatment of gender dysphoria is the latest in a long line of such psychiatric fads.” (at [147]) Dr E had no specialisation in child psychiatry or endocrinology, and also believed that “sexual experience must pre-date consent to cross-sex hormones” (at [136]), which the Court commented was “rather odd.” The Court also criticised the running of Parent 2’s case, where they tendered over 2000 pages of material, including 30 academic articles. The Court paid no attention to this material.

Court’s Decision

Ultimately, the Court granted sole parental responsibility for Ash to Parent 1, including the authority to consent to the administration of testosterone. In making this decision, the Court had regard to the fact that Ash had lived as a male for some years, his wishes were clear, it would alleviate his gender dysphoria, and there was no other treatment that had a better scientific basis. The main risks considered were polycythaemia and infertility, and although such risks were real, they were not unacceptable.

No order for parental responsibility was made in relation to Lee. Any such order would be meaningless seeing as she was not living with either parent and had limited contact with both.

Conclusion

This is a fascinating decision which canvasses a wide range of academic opinion and international research. However, the Court was clear that it was not intending to establish a general precedent, nor to be a test case. The decision was solely focussed on Ash’s unique facts, and what the Court considered to be in his best interests.