Keira Bell speaks to the media outside the UK High Court (Image: EPA/Facundo Arrizabalaga)

A recent UK High Court case about children and transgenderism has highlighted the philosophical battles over the first duty of medicine, which is to “do no harm”.

Earlier this month the UK High Court heard the testimony of 23-year-old woman Keira Bell, who brought a judicial review against the Tavistock clinic, England’s only specialist youth gender-identity centre.

Bell went to the clinic at the age of 16 where she was diagnosed with “gender dysphoria”, the feeling of alienation from one’s birth sex. After three short consultations, she was given puberty blocking drugs, then testosterone treatment and a double mastectomy.

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In a 38-page judgment which reviewed all the practices at the clinic, the three judges ruled that it was “highly unlikely” that a child aged 13 or under would be mature enough to consent to such procedures, and “doubtful” that 14 and 15 year olds would be. They ruled that doctors treating 16 and 17 year olds may also need to consult a judge before initiating these processes.

The judges said they were “surprised” that the Tavistock “did not put forward any clinical explanation” as to why referrals had changed from roughly half and half boys and girls in 2011 to girls forming 76% of referrals in 2019. The total number of patients at the Tavistock surged from 97 in 2009 to 2519 in 2018.

The court criticised Tavistock for failing to record how many of the children had autism spectrum disorder, a common trait of those with gender dysphoria. In the wake of the court finding, the UK’s National Health Service has stopped referring under-18s for treatment of this kind.

A Canadian paediatrican quoted in The Economist’s report on the trial said that “in any other branch of medicine, if you were causing permanent sterility with body-altering surgery and cross-sex hormones, you had better have some pretty strong data. But we’re already going down that road with no strong data at all.”

After the High Court decision was handed down, Tavistock released a study which showed that all bar one of the children who were placed on puberty blockers then went on to receive cross-sex hormones, which can lead to infertility and loss of sexual function. The study also found that these drugs had a deleterious effect on the children’s height and bone density.

Last week a related piece of legislation passed in the lower house of the Victorian Parliament.

The bill centres on the ideology of gender identity, in which every person has a subjective sense of themselves as a man, a woman, or neither, and in which this subjective identity — whether expressed through appearance or behaviour in any way, or not — replaces biological sex for all social, legal, and economic purposes.

It sets out to “denounce and prohibit change or suppression practices” (known elsewhere as “conversion therapy”), and establishes a commission to operate within the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to “investigate serious or systemic change or suppression practices and enforce the outcomes of such an investigation”.

It creates four criminal offences: intentionally engaging in a change or suppression practice where that conduct causes either “injury” or “serious injury” to another person; taking a person out of Victoria to be subject to a change or suppression practice where that practice causes injury; and advertising change or suppression practices.

Punishments for these new criminal offences include a maximum penalty of 10 years imprisonment for “serious injury” and a maximum of five years imprisonment for “injury”, and fines of up to $200,000. The injury can be physical or mental.

Those who might contravene the proposed legislation by engaging in change or suppression practices include psychiatrists, psychotherapists, and religious people, but the scope of the bill “is not limited to” these groups.

Also mentioned are body corporates, and family members (an example is given of an adult child refusing to support an elderly parent’s sexual orientation). The legislation allows no middle or neutral ground: something is not a change or suppression practice only when it “is supportive of or affirms a person’s gender identity or sexual orientation”.

Gender identity itself is poorly defined in law. The legislation seeks to amend its definition in the Equal Opportunity Act 2010, understanding it to include “the personal sense of the body”, and “expressions of gender, including dress, speech, mannerisms, names and personal preferences”. This is vague enough to include anyone who wants to be included.

While prohibiting gay conversion therapy sounds like a noble goal, there is little evidence of such practices existing in Victoria. Perhaps this legislation is symbolic, then — expressing support for gay, lesbian, and bisexual people, in a similar way that Australia’s federal hate speech legislation expresses support for minority racial and religious groups, without actually securing any significant number of convictions.

However, there is much that is concerning in this legislation.

When children’s gender identities are affirmed and supported, as in the case of Keira Bell, they are often put on puberty blockers, then onto cross-sex hormones, and sometimes later undergo a range of invasive surgeries.

While “watchful waiting” is best practice for gender dysphoria, it could count as a change or suppression practice and may be subject to criminal sanctions, if the current legislation passes into law. It definitely would count if you are, say, a teacher or parent.

Perhaps the most concerning part is its establishment of a special committee set up as part of VEOHRC and empowered to receive reports of contravention, investigate these reports as they see fit, and decide the outcomes.

The committee implements a “voluntary” mechanism to facilitate agreement between parties, but it also claims the power to demand the production of documents, demand attendance in front of the committee, issue notices of contravention, and enforce compliance through substantial fines.

If accused parties refuse to comply, the complaint will be escalated to the VEOHRC tribunal or to the courts, which can then enforce criminal sanctions including incarceration. The committee will also be empowered and funded to perform an “educational function”.

It seems to us that anyone who believes that a liberal society should reserve the right to question new ideologies and protect children from a lifetime of medical dependence should oppose this legislation.

Kath Deves is the co-founder and spokeswoman of Save Women’s Sports Australasia, and a law graduate.

Holly Lawford-Smith is a senior lecturer in political philosophy at the University of Melbourne, and the author of Not In Their Name: Are Citizens Culpable For Their States’ Actions?.

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