Lisa (a pseudonym) [2024] NSWCATGD 17

The publication or broadcast of the name of the witness is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. This decision is about Lisa who will turn 16 in three months. Lisa is a transgender female (assigned male at birth) who has been diagnosed with Gender Dysphoria. Since April 2021, Lisa has been taking medication, prescribed by an endocrinologist, designed to delay the physical and psychological changes associated with puberty. Lisa wishes to commence "gender affirming hormone therapy" which involves taking a cross-sex hormone, oestrogen (the proposed treatment). The purpose of that treatment is to prevent the masculinisation of Lisa's body.
2. Lisa lives with her mother and younger sibling. According to her mother, Lisa has identified as female since age three. In Grade 3, Lisa enrolled in a new primary school as a girl and wore the girl's school uniform. Lisa's younger sibling is not aware that Lisa is transgender and has only ever known Lisa as their sister.
3. Lisa's parents are separated. Each have given written consent to Lisa receiving the proposed treatment.
4. Psychiatrist Dr 5 reports that Lisa has been "persistent, insistent and consistent in her gender identity and has not wavered in seeing herself as female for many years".
5. The Hunter New England Local Health District has applied to the NSW Civil and Administrative Tribunal (NCAT) under s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) for consent to carry out the proposed treatment on Lisa. [1] It is an offence to carry out "special medical treatment" on a child, that is, a person under the age of 16 years otherwise than in accordance with s 175 of the Care Act: Care Act, s 175(1). Special medical treatment includes treatment that is reasonably likely to have the effect of rendering permanently infertile the person on whom it is carried out: Care Act, s 175(5)(a). It is not an offence for a medical practitioner to carry out special medical treatment on a child if NCAT consents to the carrying out of that treatment: Care Act, s 175(2)(b). To give consent to the carrying out of special medical treatment on a child, NCAT must be satisfied that the treatment is necessary to "save the child's life or to prevent serious damage to the child's psychological or physical health": Care Act, s 175(3).
6. In considering whether we can and should grant consent to the proposed treatment on Lisa, the central questions to be decided are: 1. whether the proposed treatment is special medical treatment; and 2. if so, whether it is necessary to carry out the proposed treatment on Lisa in order to save her life or to prevent serious damage to her psychological or physical health.
7. For the reasons we explain below, we find that the proposed treatment is special medical treatment. We were not satisfied that it is necessary to carry out that treatment in order to save Lisa's life or to prevent serious damage to her psychological or physical health. Therefore, the discretion to consent to use of the proposed treatment cannot be exercised.

Procedural background

1. At a hearing on 10 September 2024, we heard the application made under s 175 of Care Act in respect of Lisa, together with separate applications made in respect of two other 15-year-old children. To preserve their privacy, in these reasons we will refer to those children as Child 2 (a transgender female) and Child 3 (a transgender male). Many of the same issues are raised in the respective applications made for each child. Parts of these reasons are identical to those given in respect of Child 2 and Child 3.
2. NCAT made orders under s 45(4)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) that each child be separately represented. Legal Aid NSW appointed a separate representative for each child. Solicitor, Ms McMullen, represented each separate representative. For convenience we will refer to submissions made on behalf of Lisa as being made by the Separate Representative.
3. The NSW Ministry of Health (NSW Health) was joined as a party to these proceedings. NSW Health and Hunter New England Local Health District were represented in the proceedings by Ms Wright SC.

Gender dysphoria

1. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (the DSM-V) defines Gender Dysphoria in adolescents and adults as a marked incongruence between one's experienced/expressed gender and their assigned gender, lasting at least 6 months, as manifested by at least two of the following: 1. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics); 2. A strong desire to be rid of one's primary and/or secondary sex characteristics because of a marked incongruence with one's experienced/expressed gender (or in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics); 3. A strong desire for the primary and/or secondary sex characteristics of the other gender (or some alternative gender different from one's assigned gender); 4. A strong desire to be of the other gender (or some alternative gender different from one's assigned gender); 5. A strong desire to be treated as the other gender (or some alternative gender different from one's assigned gender); and 6. A strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one's assigned gender).
2. The DSM-V also provides that to meet the criteria for the diagnosis of Gender Dysphoria, the condition must be associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Lisa is diagnosed with Gender Dysphoria

1. In July 2018, Paediatrician Dr 6 referred then nine-year-old Lisa to the Gender Dysphoria clinic at John Hunter Hospital. In a letter addressed to Lisa's General Practitioner dated 5 June 2024, Dr 6 wrote that since coming into her care in 2017, Lisa has always identified as a girl and her gender identity has not wavered.
2. In early 2020, Lisa began attending a specialist transgender health care facility operated by NSW Health (the Facility).
3. In a letter dated 15 October 2020 addressed to Lisa's GP, Dr 5 said that she had diagnosed Lisa with Gender Dysphoria. Dr 5 advised that Lisa has also been diagnosed with Autism Spectrum Disorder level 3, generalised anxiety disorder, specific learning disorder (mathematics, oral expression and comprehension) and low average IQ. Referring to those diagnoses, Dr 5 wrote that Lisa nonetheless meets the criteria for Gender Dysphoria with "persistence, insistence and consistency". Dr 5 wrote that despite the limitation of her consultation with Lisa (by phone and with her mother) there was "adequate collateral information from mum and long-term paediatrician to support this diagnosis".
4. In a subsequent report dated 22 August 2024, Dr 5 reported that in a consultation in December 2023, Lisa was very clear "I don't want boy puberty. I am a girl. I want to take hormones to make me a girl." In Dr 5's opinion Lisa has a realistic understanding of what she can and cannot expect from the proposed treatment.

Lisa commences puberty suppression medication (Stage 1 treatment)

1. When Dr 3 took over Lisa's management in October 2020, Lisa was taking puberty suppression medication (Goserelin aka Zoladex®) which had been prescribed by a paediatric endocrinologist at John Hunter Hospital. In a letter dated 27 August 2024, prepared in support of the initiating application to NCAT, [2] Dr 3 reported that Lisa's medical records reveal that when she commenced taking that medication in October 2021, she was assessed as being in "Tanner Stage 2 (early puberty)". [3] That assessment was based on pathology tests as Lisa was not willing to have her genitalia examined.
2. According to Expert 1 in a report dated 27 August 2024, as Lisa commenced Stage 1 treatment before full pubertal maturation (Tanner Stage 5) as a natal male, this means that Lisa is unlikely to have developed ejaculatory function or sperm production (spermatogenesis).
3. Lisa continues to receive Zoladex administered by subcutaneous implants (by needle) every 12 weeks. Dr 3 reported that that treatment has been effective in halting the progression of male puberty in Lisa.
4. According to Dr 3, despite Lisa's significant fear of needles she has consistently expressed a wish to remain on Stage 1 treatment.
5. Dr 3 reported that a social worker at the Facility spoke with Lisa and her mother on 28 March 2024 about a referral to a fertility expert. The social worker recorded that Lisa was very clear she does not want to have children in the future and would find a fertility referral distressing. Her mother confirmed that this was Lisa's view. Dr 3 reported that the social worker's report was consistent with her conversations with Lisa and her mother.
6. In these reasons we refer to the administration of puberty suppression medication as "Stage 1 treatment" and the administration of hormones, in Lisa's case oestrogen, as "Stage 2 treatment". The experts who gave evidence in these proceedings used various terms to describe Stage 2 treatment including "gender affirming feminising therapy" and "feminising treatment". Those terms mean one and the same thing.

The proposed treatment (Stage 2 treatment)

1. In the initiating application made to NCAT, [4] Dr 3 described the proposed Stage 2 treatment as "feminising treatment … in the form of [E]stradiol either trans-dermally or orally". Dr 3 wrote that "[Lisa] would like to access oestrogen therapy to feminise her appearance". In oral evidence, Dr 3 explained that to be effective in preventing the masculinisation of Lisa's body, the proposed treatment must be taken indefinitely.
2. Dr 3 said that if the Tribunal consents to Lisa being given the proposed treatment, she will commence Lisa on a low dose of oestrogen. Because Lisa has not undergone puberty she would not put Lisa on an adult dosage for one to two years. Sudden changes in hormone levels can have adverse impacts on some people. For a period, she would continue Lisa on Stage 1 treatment and taper off that that treatment as the oestrogen dose being administered increases.

Statutory framework

1. The central provision in these proceedings is s 175 of the Care Act which relevantly states: 175 Special medical treatment (1) A person must not carry out special medical treatment on a child otherwise than in accordance with this section. Penalty on indictment: imprisonment for 7 years. Note - An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation--see section 258. (2) A medical practitioner may carry out special medical treatment on a child if - (a) the medical practitioner is of the opinion that it is necessary, as a matter of urgency, to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's health, or (b) the Civil and Administrative Tribunal, in the case of special medical treatment described in paragraph (a), (b) or (c) of the definition of "special medical treatment" in subsection (5), consents to the carrying out of the treatment, or … (3) Consent to the carrying out of special medical treatment on a child must not be given by the Civil and Administrative Tribunal unless the Civil and Administrative Tribunal is satisfied that it is necessary to carry out the treatment on the child in order to save the child's life or to prevent serious damage to the child's psychological or physical health. … (5) In this section - "medical treatment" includes - (a) any medical procedure, operation or examination, and (b) any treatment, procedure, operation or examination that is declared by the regulations to be medical treatment for the purposes of this section. "special medical treatment" means - (a) any medical treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, not being medical treatment - (i) that is intended to remediate a life-threatening condition, and (ii) from which permanent infertility, or the likelihood of permanent infertility, is an unwanted consequence, or …
2. In the Care Act, a "child" is defined to mean a person who is under the age of 16 years: s 3.
3. Section 9 of the Care Act instructs that in any decision we make concerning Lisa, her safety, welfare and well-being are paramount.

Predecessor to s 175 of the Care Act

1. The predecessor to s 175 to the Care Act is s 208 of the former Children (Care and Protection) Act 1987 (NSW) (the 1987 Care Act). There is no material difference between the definition of "special medical treatment" in s 208 of the 1987 Care Act and that contained in s 175(5)(a) of the Care Act.
2. Section 208 of the 1987 Care Act originally provided that special medical treatment could be carried out on a person under 16 years only if a medical practitioner thought it necessary as a matter of urgency in order to save the patient's life or prevent serious damage to health or with the Supreme Court's consent. A subsequent amendment "[strengthened] ... the protective effect" of the 1987 Care Act "by ensuring that the Supreme Court consents to the carrying out of any treatment that is likely to result in a child being rendered infertile only if the court is satisfied that the treatment is necessary to save the child's life or to prevent serious damage to the child's health" (emphasis added). [5]
3. In a report published in 2008, "Young people and consent to health care", the NSW Law Reform Commission (the NSWLRC) commented at [8.23]: "The evolution of the NSW legislation would seem to indicate that the concept of special medical treatment was introduced principally to prevent young people from being subjected to sterilisation undertaken without independent scrutiny. Other types of treatment were added soon after. During Parliamentary debate it was stated that the principal purpose of the above definition of 'special medical treatment' was: to make it unlawful to carry out sterilization, except in a case where it is necessary to save the life of the patient or to prevent serious damage to the patient's health, or unless the Guardianship Board has held a hearing concerning the matter and has given its consent. There have been allegations over a number of years that intellectually disabled people in particular have been improperly sterilized as a means of social control and this practice was condemned by the Anti-Discrimination Board in a report which it produced in 1981. There would be few people in a civilized community who would condone such a thing and it is a principal purpose of this bill to outlaw the practice." (Footnotes omitted)
4. The NSWLRC recommended that s 175 be retained and said at [8.26] that "[t]he provision should contain a definition of special medical treatment that accords with the present definition contained in s 175(5)(a), (c) and (d), and which refer to treatments affecting reproductive capacity and any others declared special medical treatments by the regulations".

Is the proposed treatment special medical treatment?

1. Whether the proposed treatment is special medical treatment within the meaning of paragraph (a) of the definition of special medical treatment in s 175(5) of the Care Act turns on: 1. whether the proposed treatment is reasonably likely to have the effect of rendering Lisa permanently infertile; and 2. if so, whether the proposed treatment is intended to remediate a life-threatening condition, and from which the likelihood of permanent infertility, is an unwanted consequence.

Reasonably likely

1. In construing the expression "reasonably likely" in the definition of special medical treatment in s 175(5) of the Care Act, the text, context and the purpose of the Care Act are relevant: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].
2. As a general principle of statutory construction, where words are not defined, they are to be given their ordinary meaning.
3. What does the expression "reasonably likely" mean in the context of s 175(5) of the Care Act? It is well-established that the meaning of the word "likely" may vary according to its context. Generally, it is accepted that an event is "likely" if there is a real rather than a remote chance of it happening. If something is likely to happen, there is a good chance that it will happen: Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 at 15.
4. The adverb "reasonably" in the expression "reasonably likely" conveys a sense that the likelihood of an event occurring is relatively less than it is "likely". The qualifying adverb diminishes the phrase's weight or intensity compared with the power of the adjective "likely" standing by itself. It conveys a sense that there is "a fairly good chance" that the potential event will occur: see Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 at [150]-[152] (Palmer J); see also Department of Agriculture and Rural Affairs v Binnie [1989] VR 836. The "likely" event is not one which is more likely than not to occur, that is "odds on", or necessarily probable but must be more than a mere possibility: Re the Will of Bridget [2018] NSWSC 1509 at [106]-[108] (Hallen J).
5. In the context of s 175(5) of the Care Act, the phrase 'reasonably likely' carries a cautionary connotation because the consequences of a proposed treatment may be irreversible and, if so, for many people, undesirable. Medical treatment that is reasonably likely to have the effect of rendering a person permanently infertile, in our view, is treatment that creates a real, not speculative or remote, but not probable risk of permanent infertility for the treated person. The apprehended risk is above speculation, conjecture or mere possibility.

Is the Tribunal limited to considering the effect of that treatment in the period up to Lisa's 16th birthday?

1. The Separate Representative contends that in deciding whether the proposed treatment is reasonably likely to have the effect of rendering Lisa permanently infertile, the Tribunal is limited to considering the effect of that treatment in the period preceding Lisa's 16th birthday, that is in about three months. She argues that s 175 of the Care Act is only concerned to restrict the carrying out of special medical treatment on children under the age of 16 years and that any treatment carried out after that time is not the subject of intervention pursuant to s 175. She points out that if Lisa or any child were to commence treatment on their 16th birthday, the Tribunal would have no jurisdiction. It would be inconsistent with the purpose and objects of the Care Act to give the Tribunal power to consent to treatment given to a person over the age of 16 years.
2. The Separate Representative points out that in contrast to a form of one-off treatment, such as a hysterectomy, here the proposed treatment is a course of indefinite treatment which will extend beyond Lisa's 16th birthday. If Lisa commences Stage 2 treatment before she turns 16, as explained by Dr 4, she is not committed to the continuation of that treatment. That treatment can be paused or ceased at any time in accordance with Lisa's wishes and the advice of her treating team.
3. NSW Health contends that the Act requires the Tribunal to make a realistic and holistic assessment of the effect of the proposed treatment, not on a dose-by-dose assessment. The word "permanent" in s 175(5)(a) requires the Tribunal to consider the effect of all of the treatment that is proposed to be commenced and its effect on the person's fertility, not only the effect of treatment on the person's fertility until they reach age 16.

Consideration

1. This argument advanced by the Separate Representative, in our view, is misconceived. Section 175 of the Care Act gives the Tribunal jurisdiction in respect of children under the age of 16 years in relation to medical treatment that falls within paragraphs (a), (b) or (c) of the definition of special medical treatment in s 175(5) of the Care Act. Section 175 imposes a decision-making responsibility on the Tribunal. The obligation to exercise that jurisdiction according to law is not concerned with the course or length of the proposed treatment but with the protection of children from harm that may be caused by the subject treatment. If a person is under the age of 16 and an application is made for the Tribunal to consent to the proposed special medical treatment under s 175(3), the Tribunal must consider the evidence and make a decision according to the principles outlined in the Care Act. The Tribunal must consider the evidence concerning the proposed treatment and its potential effects.
2. Section 175 is both present-oriented and forward-looking. It requires the Tribunal to anticipate, as best it can, what may follow from a treatment of a child who is, at the time of the application, under the age of 16. In our view, it would be a failure of jurisdiction, and potentially lead to absurd results, if the Tribunal were to consider only the potential effects of a treatment up to the 16th birthday of a child. Where a "special medical treatment" in the form of an operation were commenced five minutes prior to a child's 16th birthday, such a stance would require NCAT to ignore the possible effects occurring after the conclusion of the operation, as the child would be 16 by that time. In our view, once seized with jurisdiction, the Tribunal must consider whether the treatment over its course is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is proposed to be carried out. The fact that a treatment may extend beyond the child's 16th birthday, in our view, has no bearing on the Tribunal's jurisdiction at the time of the application. Otherwise, the Tribunal would not be able to exercise jurisdiction at all if the course of treatment continued beyond the child's 16th birthday.

Is the proposed treatment reasonably likely to have the effect of rendering Lisa permanently infertile?

1. NSW Health contends that it is open to the Tribunal to find on the available evidence that the proposed treatment is reasonably likely to have the effect of rendering Lisa permanently infertile. NSW Health acknowledges that the available evidence would not support a finding that it is probable that the proposed treatment will render Lisa permanently infertile.
2. On the other hand, the Separate Representative contends that the available evidence supports a finding that it is possible that the proposed treatment might render Lisa permanently infertile but not a finding that there is a real and not remote chance that it will render Lisa infertile. The Separate Representative says that the significant uncertainty surrounding the effects of Stage 2 treatment on the fertility of trans females does not establish that there is a real and not remote chance that the proposed treatment will render Lisa infertile. As pointed out by the two experts who gave evidence in these proceedings, there is no evidence that establishes that the effects of oestrogen on fertility are permanent and there is some evidence which suggests the effects are reversible.

Expert evidence

1. At the request of NSW Health, obstetricians and gynaecologists, Experts 1 and 2, gave evidence in these proceedings about the effects of Stage 2 treatment on the fertility of Lisa and the two other children the subject of the proceedings. Experts 1 and 2 each prepared individual reports and, at the request of the Tribunal, a joint report. In addition, Expert 1 gave oral evidence. Expert 2 lives overseas and was not available to give oral evidence.
2. Experts 1 and 2 agree that Zoladex (Stage 1 treatment) has the effect of suppressing testosterone which, in turn, "prevents full spermatogenesis [sperm production]". In addition, they agreed that the effects of Stage 1 treatment were "fully reversible" and would have no effect on Lisa's fertility. Further, they agreed that if Lisa were to now (September 2024) commence Stage 2 treatment, it would not have any impact on her fertility over the next three months. However, they differed in their opinion about the effects of Stage 2 treatment on Lisa's fertility beyond her 16th birthday.

Expert 1

1. In a short report dated 6 August 2024, Expert 1 wrote that there is "good evidence" that oestrogen impairs spermatogenesis and causes testicular atrophy while it is being taken. While there is some evidence that this may be partially reversible when oestrogen is ceased, that is primarily taken from studies of people who commenced gender affirming hormone therapy after pubertal development. According to Expert 1 there is no "high-quality evidence to accurately predict return of fertility" if oestrogen treatment is commenced prior to "full pubertal development".
2. In a more detailed report dated 27 August 2024 prepared in respect of Lisa (the initial report), Expert 1 repeated those opinions. In addition, she said that because Lisa had commenced Stage 1 treatment "before full pubertal maturation (before Tanner Stage 5) as a natal male", [6] she is "unlikely to have developed ejaculatory function or sperm production". According to Expert 1, that will remain the case while ever Lisa continues Stage 1 treatment. Expert 1 said that she would expect that if Lisa were to stop Stage 1 treatment and not commence Stage 2 treatment, that she would "proceed through puberty to full male puberty maturation and associated fertility".
3. In oral evidence, Expert 1 expanded on the effects of oestrogen on trans females: "It shrinks testicular volume, and it has a direct inhibitory effect on spermatogenesis, that is, the production and maturation of sperm cells. It also decreases ejaculatory function."
4. Expert 1 wrote that the proposed treatment presents a "high risk of infertility whilst it is being taken". According to Expert 1, "the risks of infertility are not time or dose dependent … Having said that, a short exposure to oestrogen (e.g. a couple of months) would not be likely to impact fertility".
5. In 2023, Expert 2 co-authored a report about a study of nine transgender females, each of whom commenced Stage 2 treatment after full pubertal maturation and later ceased treatment (the Expert 2 report). [7] The participants in that study had used oestrogen treatment for varying periods, the longest period being five to six years. The study found that: spermatogenesis was fully restored in each of the nine participants; four participants had at least one normal semen analysis; five participants had a lower quality of sperm; and, the length of the treatment had no bearing on fertility outcomes.
6. Commenting on the study the subject of the Expert 2 report, Expert 1 said that it is too limited to be generalised to all patients who commence Stage 2 treatment with oestrogen after onset of full pubertal maturation. Expert 1 said in her opinion the "state of the data, particularly relating to people who commence Stage 2 treatment (oestrogen) before full pubertal maturation there remains uncertainty as to whether infertility … is likely to be permanent".
7. In her report, Expert 1 noted that she has treated a trans female patient who commenced Stage 2 treatment after full pubertal maturation. That patient returned to normal male fertility about five months after ceasing treatment.

Expert 2

1. In a report dated 29 August 2024, Expert 2 gave an opinion about the fertility implications of the Stage 2 treatment for each of the three children the subject of these proceedings. With respect to Lisa, Expert 2 said that there is "probably not a real chance" that she will become permanently infertile if she undergoes Stage 2 treatment.
2. Expert 2 acknowledged that the evidence on "fertility outcomes of trans-feminine individuals is sparse" and noted that in preparing the Expert 2 report, the authors completed a systematic literature review and found no studies in relation to the fertility outcome of "trans-feminine minors with years of puberty suppression". Expert 2 said that oestrogen treatment "will in the majority of transfeminine patients lead to reduced sperm quality, however data [is] from adult patients and were always combined with a testosterone blocker".
3. Expert 2 said that currently there was no evidence to prove that the effects of oestrogen on fertility are "irreversible or permanent". Referring to the Expert 2 report, Expert 2 said that there is some data to suggest that the effects of oestrogen in trans-female patients may be reversible.
4. Expert 2 wrote the "current hypothesis" is that "the effects of hormone therapy with oestrogen are probably reversible, and that there would be a return of testosterone, and restored fertility, but that it may take a long time".
5. Expert 2 said that while "there is no data relevant to [Lisa], based on what is currently known" she would expect that if she were to commence on oestrogen the effect would not be different to the effect of Zoladex. If hormone therapy ceased, Lisa "could have a return of testosterone and fertility with reasonable amount of uncertainty". (The use of the word "uncertainty" may be a typographical error as it inconsistent with the flavour of opinion expressed by Expert 2). Expert 2 said that the fertility implications for Child 2 would be similar.
6. Expert 2 emphasised that there is always a chance that a person will be infertile and there is no guarantee that a person will be able to parent a biological child.

Joint expert report

1. At the request of the Tribunal, NSW Health requested Experts 1 and 2 to prepare a joint report. Expert 1 and Expert 2 were asked to answer a series of questions about each of the three children the subject of these proceedings. The questions were jointly formulated by NSW Health and the Separate Representative.
2. Each expert was asked to answer the question, "Is there a real and not remote chance that Stage 2 (oestrogen) treatment would have the effect of rendering [Lisa] permanently infertile?" In their joint report dated 9 September 2024, Expert 1 wrote: "Due to a complete lack of guiding evidence applicable to these circumstances (meaning stage 2 treatment commenced before pubertal maturation) as for case 1, I am unable to confidently state that stage 2 treatment in the form of estrogen will not result in a real and not remote chance of permanent infertility. It should be noted that this treatment is not intended to cause permanent infertility and whilst evidence to support fertility is lacking, there is no evidence strongly suggesting that it does cause permanent infertility."
3. Expert 2 did not respond to that question.
4. In her initial report Expert 2 wrote "[t]he data on fertility outcomes of transfeminine individuals is sparse" and "[w]hile there is no data relevant to [Lisa], based on what is presently known, I would expect that if the minor were to commence on oestrogen, the effects would not be different from the current situation with Zoladex only and, if hormone therapy was ceased, the minor could have a return of testosterone and fertility with a reasonable amount of uncertainty. This opinion is based on the case study [in the Expert 2 report] and some examples from clinical practice" (emphasis added).
5. In answering what she meant by the phrase "a reasonable amount of uncertainty" in the above passage, Expert 2 wrote in the joint report: "There is no [proof] of fertility other than birth of a healthy infant, there is always a reasonable amount of uncertainty in fertility. There is only evidence of the reversibility of subfertility in transgender adults. And we don't know what the outcome in (sub)fertility would have been without this treatment (background risk of infertility due to other non transgender related causes)."
6. In response to the request that she expand on her opinion that she would expect that the minor could have a return of testosterone and fertility, in the absence of data on fertility relevant to Lisa or Child 1, Expert 2 said: "From cisgender boys treated with GnRHa for precocious puberty we know that they showed normal sperm analysis 0.7-3 years after the determination of GnRHa [gonadotropin therapy] [8] … Together with the case report in adults, all we know is reassuring. So I think it very well possible that fertility returns after cessation of GAHT [Gender affirming hormone therapy]."

Expert 1's oral evidence

1. In Expert 1's opinion, the World Professional Association for Transgender Health (WPATH) "Standard of Care for the Health of Transgender and Gender Diverse People", Eighth Edition (the WPATH Guidelines) and the Royal Children's Hospital Melbourne "Australian Standards of Care and Treatment Guidelines: For Trans and Gender Diverse Children and Adolescents", Version 1.4 (the AusPATH Guidelines) represent best practice for transgender health in Australia. According to Expert 1, fertility preservation should form part of gender care. Expert 1 agreed with this statement contained in the AusPATH Guidelines at p 14: "the degree to which testosterone may reduce one's reproductive potential when taken in adolescence and early adulthood is unknown".
2. In oral evidence, Expert 1 agreed with the proposition that there is evidence that oestrogen impairs sperm production and that it is unknown whether those effects are permanent. Expert 1 said that she could not say there is not a real possibility of permanent infertility flowing from Stage 2 treatment for Lisa. However, she clarified that this was an opinion and there is no evidence to guide her. Expert 1 speculated that Lisa may be more at risk of permanent infertility than Child 2 because she commenced treatment at an earlier stage of pubertal development.

Consideration

1. It is uncontroversial that Stage 2 treatment affects sperm production and causes testicular atrophy while it is being taken. We find that Lisa is likely to be at high risk of infertility while she is receiving Stage 2 treatment.
2. The more difficult question is whether Stage 2 treatment is reasonably likely to render Lisa permanently infertile if she were to stop that treatment. Each expert considered that the question was attended by considerable doubt, largely because of the dearth of evidence about the effect of oestrogen treatment on transgender females in general, in particular, transgender girls who, like Lisa, had not gone through full natal puberty (that is, the process of puberty as their sex assigned at birth).
3. Of the experts, Expert 2 had a greater degree of confidence that Stage 2 treatment would not render Lisa permanently infertile. Nonetheless, the opinion she expressed in the joint report was more equivocal than that expressed in her initial report, namely that "there is probably not a real chance that [Lisa] will become permanently infertile if [she] undergo[es] Stage 2 treatment". Expert 2 considered that the study the subject of the Expert 2 report was confirmatory of her opinion but acknowledged its limitations. The report stated: "Our sample size was obviously limited and ultimately only included three patients in whom reversible azoospermia could be confirmed". It recommended future studies with a large number of patients. [9]
4. Of the two experts, we consider the opinion expressed by Expert 1 to be more persuasive. Expert 1 said that she was unable to characterise the risk of Lisa becoming permanently infertile as remote. She gave a reasoned explanation for that opinion. She considered Lisa to be more at risk than Child 2 because she was at a less advanced stage of (male) puberty when she commenced taking puberty suppression medication. We are mindful that we have had the advantage of hearing Expert 1's expanded explanation for that opinion in oral evidence. In contrast, we did not have the advantage of hearing from Expert 2 and in particular on her explanation for the apparent discrepancy between the opinion she expressed in her initial report and the joint report. Although Expert 2 expressed some confidence that the proposed treatment would not render Lisa permanently infertile, her opinion was, in effect, based largely on a very small sample of adult subjects. In our view, it was such a small study that it would be risky, if not impossible, to generalise from it, especially in relation to the potential effects of the treatment on children whose puberty has been medically suppressed.
5. Although the evidence as to the likelihood of the treatment causing permanent infertility is sparse, it cannot be said either to be so remote as to be an inconsequential consideration or improbable. We are of the view that there is a real but immeasurable chance that permanent infertility may be the effect of the treatment. In that sense, we find that the Stage 2 treatment sought for Lisa meets the statutory test of being reasonably likely to have the effect of rendering Lisa permanently infertile.
6. It follows that the proposed treatment constitutes special medical treatment within the meaning the definition of special medical treatment in para (a) of s 175(5) of the Care Act.

Is it necessary to carry out the proposed treatment to prevent serious damage to Lisa's psychological health?

1. The Separate Representative contends that the proposed treatment is necessary to prevent serious damage to Lisa's psychological health. NSW Health disagrees.
2. Before considering the submissions made by the parties, we will outline the evidence about Lisa's psychological health.
3. Dr 5 met Lisa on two occasions, most recently in late 2023, apparently for the purpose of determining whether Lisa continues to meet the diagnostic criteria for Gender Dysphoria and is capable of consenting to the proposed treatment. In a report dated 13 December 2023, Dr 5 wrote that during that consultation Lisa said "I will be sad and mad", if she had to wait until she was age 16 to receive the proposed treatment. Dr 5 wrote that in exploring Lisa's feelings about the commencement of the treatment with Lisa and her mother, "we established that her mental health will significantly decline if she has to wait for this treatment until she is 18". Dr 5 wrote that it is "essential that treatment commence at the time clinicians involved in her care determine she is ready".
4. In August 2024, Dr 5 met with Lisa's mother. Lisa did not attend that consultation, as apparently, she was sleeping. In a report dated 22 August 2024, Dr 5 said that during that consultation, Lisa's mother talked about the impact on Lisa of the delay in commencing Stage 2 treatment and said that Lisa: 1. does not talk openly about her feelings due to her neurodivergence; 2. has become more irritable and argumentative at home. She can be rude and abrasive to her mother and siblings; and 3. said that she is angry "I don't get to have choice [about treatment initiation] and that we have to fight for it [access to treatment]".
5. Dr 5 wrote that the delay in commencing the proposed treatment has been difficult for both Lisa and her mother. Allowing Lisa to access treatment will improve Lisa's overall mental health as it will "allow her to look like she wants to look and live the life she wants to live".
6. In oral evidence Dr 5 said that Lisa's emotional distress manifests itself in behavioural ways described by her mother as Lisa "being more unpleasant". Dr 5 said that Lisa's condition may progress to a mood disorder if treatment was further delayed. Because of gender incongruence, there is a high likelihood that a person with Gender Dysphoria will develop a disorder such as anxiety or depression.
7. In Dr 5's opinion, if Lisa were to go through "boy puberty", she would be at "high risk of harm", the effect would be devastating.
8. In assessing the impact of the delay in starting treatment, Dr 5 considered significant the fact that Lisa and her family are socially isolated. Her mother is a single parent. Lisa is home schooled and her only contact apart from her immediate family is a NDIS support worker. Nonetheless, in Dr 5's opinion, if Lisa had to wait three months until her 16th birthday to commence treatment she would be able to cope, largely because of the efforts of her mother in preparing her for that possibility.

Submissions

1. The Separate Representative contends that in considering whether the proposed treatment is necessary to prevent serious damage to Lisa's psychological physical health, the Tribunal should not confine its consideration to the impact on Lisa if that treatment were delayed until she reached the age of 16. Rather the Tribunal should consider the effects on Lisa, if she were never to commence the proposed treatment. As explained by Dr 3 because of the deleterious effect of long-term Stage 1 treatment, including on bone health, Lisa will be unable to receive that treatment indefinitely. The Separate Representative points to Dr 5's opinion that if she were to go through "boy puberty" it would be devastating to Lisa.
2. The Separate Representative points to the evidence that for many years Lisa has been "persistent, insistent and consistent" in her identity and that she is increasingly distressed by the delay in commencing the proposed treatment and "having to fight" to receive that treatment. In support she points to the statement made by Lisa's mother that throughout the Tribunal process she has become "more irritable, angry and distressed".

Consideration

1. To exercise the discretion conferred by s 175(3) of the Care Act to give consent to the carrying out of the proposed treatment we must be satisfied that it is necessary to carry out that treatment on Lisa in order to prevent serious damage to her psychological or physical health.
2. We reject the argument made by the Separate Representative that s 175(3) should be interpreted as requiring us to consider the effects on Lisa's psychological health if she were never to undergo Stage 2 treatment and, as a consequence at some point she would be required to cease Stage 1 treatment, and go through "boy puberty". Section 175(3) requires consideration of the effect of not carrying out the subject special medical treatment, here oestrogen therapy, on the child's psychological health. The use of the present tense "is satisfied that [the special medical treatment] is necessary" (emphasis added) indicates that the child's current circumstances must be taken into account.
3. We accept that it is not an option for Lisa to remain on puberty suppression medication indefinitely but there is no evidence that if she does not commence the proposed treatment at this point in time, she will be required to cease taking puberty suppression medication.
4. We find that it is likely that Lisa will be distressed and disappointed when she learns that she will be unable to commence the proposed treatment now. Dr 5 may be correct that, as a result, Lisa may develop a mood disorder. In addition, Dr 5 apprehends that Lisa's socially isolated family may not be able to cope if Lisa's behaviour deteriorates if treatment is delayed. However, in circumstances where Lisa is not receiving treatment for her mental health, and where, according to Dr 5, Lisa will probably be able to cope with the distress and disappointment of learning that she will be unable to commence the proposed treatment, we are not persuaded that the treatment is necessary at this time to prevent serious damage to Lisa's psychological health.

Conclusion

1. Not being satisfied that it is necessary to carry out the proposed treatment in order to prevent serious damage to Lisa's psychological health, the discretion to grant consent to that treatment cannot be exercised.

ADDENDUM 8 October 2024 On 8 October 2024, the parties were given a copy of the statement of reasons for this decision, which included the names of the individuals referred to in that statement, including the young person the subject of the application to NCAT made by the Hunter New England Local Health District under s 175 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). In the version of the statement of reasons published on CASELAW the Tribunal decided to anonymise the names of the individuals mentioned in that statement.

Annexure A Pseudonym Description Dr 5 A Facility psychiatrist who diagnosed Lisa with Gender Dysphoria. Dr 3 Paediatric endocrinologist with the Facility and the original applicant in the proceedings Dr 6 Paediatrician who oversaw Lisa's care from 2017 and referred her to the Gender Dysphoria Clinic at John Hunter Hospital Dr 4 Senior Paediatric endocrinologist with the Facility Expert 1 Australian obstetrician and gynaecologist, who gave evidence in these proceedings at the request of NSW Health Expert 2 Overseas obstetrician and gynaecologist, who gave evidence in these proceedings at the request of NSW Health

Endnotes

1. Lodged with NCAT on 4 July 2024, the application was initially made by Lisa's treating endocrinologist, Dr 3. After the commencement of the proceedings, at the request of the Hunter New England Local Health District and Dr 3, NCAT ordered that the Hunter New England Local Health District be made the applicant in place of Dr 3. The NSW Ministry of Health was joined as party to the proceedings.
2. See endnote 1 above.
3. Each Tanner stage is identified by physical changes to the body, including breast development in female puberty, the growth of the penis and testicular volume in male puberty, and pubic hair development in both genders. See, World Professional Association for Transgender Health, Standards of Care for the Health of Transgender and Gender Diverse People, Eighth Edition (Report, 2022), S64 [6.12.f] citing W A Marshall, & J M Tanner, (1969), "Variations in pattern of pubertal changes in girls", Archives of Disease in Childhood, 44(235), 291-303.
4. See end note 1 above.
5. Children (Care and Protection) Further Amendment Act 1988 (NSW); NSW, Parliamentary Debates, Legislative Council, 13 October 1988, 2202 (Virginia Chadwick, Minister for Family and Community Services).
6. See end note 4 above.
7. I De Nie, NM van Mello, E Vlahakis, C Cooper, A Peri, M den Heijer, A Meißner, J Huirne, KC Pang, "Successful restoration of spermatogenesis following gender-affirming hormone therapy in transgender women" (2023) 4(1) Cell Reports Medicine.
8. S Bertelloni, G I Baroncelli, M Ferdeghini, F Menchini-Fabris, G Saggese, "Final height, gonadal function and bone mineral density of adolescent males with central precocious puberty after therapy with gonadotropin-releasing hormone analogues" (2000) 159(5) European Journal of Pediatrics, 369-374.
9. I De Nie, NM van Mello, E Vlahakis, C Cooper, A Peri, M den Heijer, A Meißner, J Huirne, KC Pang, "Successful restoration of spermatogenesis following gender-affirming hormone therapy in transgender women" (2023) 4(1) Cell Reports Medicine, p 7. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 December 2024 - Amended pseudonyms - see annexure DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2024