Statement of Principles concerning gender dysphoria (Balance of Probabilities) (No. 114 of 2021)

The instrument defines several key terms in its Schedule 1 Dictionary. Gender dysphoria is defined by reference to the DSM-5 criteria. This is a mental health disorder involving a marked incongruence between one's experienced or expressed gender and assigned gender, lasting at least six months, and associated with clinically significant distress or impairment in social, occupational, or other important areas. The condition manifests through at least two of six indicators: a marked incongruence with primary or secondary sex characteristics; a strong desire to be rid of those characteristics; a strong desire for the sex characteristics of another gender; a strong desire to be of another gender; a strong desire to be treated as another gender; or a strong conviction that one has the typical feelings and reactions of another gender. The instrument expressly excludes gender dysphoria associated with inherited or congenital disorders of sex development, such as congenital adrenal hyperplasia or androgen insensitivity syndrome, meaning claims involving co-occurring intersex variations are not covered by this SoP.

Category 2 stressor is defined as a negative life event, the effects of which are chronic and cause ongoing distress, concern, or worry. The definition lists seven types: social isolation due to physical location, language barriers, disability, medical illness or psychiatric symptomatology; problems with a long-term relationship including breakup, marital counselling, separation, or divorce; concerns in the work or school environment including ongoing disharmony with colleagues, lack of social support, lack of control over tasks, stressful workloads, demotion, or bullying; serious legal issues including detention, custody, ongoing police involvement, or court appearances; severe financial hardship including loss of employment, long periods of unemployment, foreclosure, or bankruptcy; a family member or significant other experiencing a major health deterioration; or being a full-time caregiver to a family member or significant other with a severe physical, mental, or developmental disability. This is a broad category that covers many adverse life circumstances, but the chronic nature requirement is important: the stressor must be ongoing, not a one-off event.

Severe childhood abuse means serious physical, emotional, psychological, or sexual harm whilst a child aged under 16 years, or neglect involving a serious failure to provide the necessities for health, physical and emotional development, or wellbeing whilst under 16. The harm or neglect must be perpetrated by a parent, care provider, an adult who works with or around that child, or any other adult in contact with the child. This definition eschews any requirement for a criminal conviction or official finding; it is a factual inquiry.

Relevant service is defined narrowly for this instrument: it means eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This deliberately restricts application to those whose service is not operational, hazardous, or British nuclear test defence service, because those categories are covered by separate instruments under different standards.

Terminal event is defined for death cases: pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function. For a claim based on death from gender dysphoria, the death must be contributed to by the person's gender dysphoria via one of these terminal events.

The instrument also defines significant other as a person who has a close family bond or a close personal relationship and is important or influential in one's life. This term appears in the category 2 stressor definition for health deterioration of a family member or significant other.

The primary affected population are veterans and members of the Australian Defence Force who have rendered relevant service as defined in section 5 of the instrument. Specifically, it applies to: those with eligible war service (other than operational service) under the VEA - that is, service in a war or warlike operation but not involving actual combat or deployment to a combat zone; those with defence service (other than hazardous service and British nuclear test defence service) under the VEA - peacetime defence service after a certain date; and those with peacetime service under the MRCA - service that is not operational service under that Act. These are the categories for which the balance of probabilities standard applies under s 120B of the VEA and s 339 of the MRCA. Veterans with operational service, hazardous service, or British nuclear test defence service fall under a different standard (reasonable hypothesis) and are governed by separate statements of principles, not this instrument.

The instrument also affects decision-makers at the Department of Veterans' Affairs, the Veterans' Review Board, and the Administrative Appeals Tribunal, who must apply this SoP to determine whether gender dysphoria or death from gender dysphoria is related to service for claimants in the covered categories. It binds them in that if at least one factor exists and is related to service, the condition must be accepted as service-related. Conversely, if no factor exists, the claim must be denied unless another SoP applies or the condition arose from service in some other way not listed (but the SoP purports to be exhaustive on the sound medical-scientific evidence available).

Healthcare professionals treating veterans or members may be affected indirectly when providing medical reports for compensation claims. The diagnostic criteria from DSM-5 will need to be applied carefully, and the timing of clinical worsening becomes crucial because each factor is tied to "before the clinical worsening of gender dysphoria". This means that for a condition that was already present before service, the factors only apply to material contribution to or aggravation of the condition, as section 9(2) states.

The family members or significant others of veterans with gender dysphoria may also be affected indirectly through dependency claims if the veteran dies from the condition, provided the death is contributed to by gender dysphoria via a terminal event.

Legal practitioners and advocates representing veterans and members will need to understand the precise definitions and limitations to frame claims appropriately. The narrow definition of relevant service means many veterans with operational service who suffer from gender dysphoria cannot use this SoP; they would rely on a different instrument with a lower evidential standard (reasonable hypothesis) but that instrument may have different factors.

This instrument imposes no duties on individuals. It is a rule of evidence for administrative decision-making. The right it confers is the right of a claimant to have a claim for gender dysphoria or death from gender dysphoria determined in accordance with the factors set out. If at least one factor exists and is related to the person's relevant service, then the condition must be taken to be connected with that service. This creates a deeming provision: the decision-maker cannot exercise discretion to deny the connection if a factor is established.

Section 8 lists the four factors. The first is experiencing severe childhood abuse before the clinical worsening of gender dysphoria. This requires that the abuse occurred while the person was under 16 and was perpetrated by an adult in a position of trust or contact. The abuse must precede clinical worsening, not necessarily the onset of the condition. This factor can apply where the condition was pre-existing and then worsened during or after service, provided the abuse occurred before that worsening.

The second factor is being subject to a serious physical attack or assault, including rape and sexual molestation, within the five years before the clinical worsening of gender dysphoria. The serious physical attack or assault must be objectively serious; not every minor altercation qualifies. The five-year window is relatively generous but still requires a temporal connection.

The third factor is experiencing a category 2 stressor within the one year before the clinical worsening of gender dysphoria. The category 2 stressor must be chronic in nature and cause ongoing distress. The one-year window is tighter, and the stressor must be one of the seven listed types. Notably, the stressor can arise in a variety of service-connected circumstances, including during service, as a result of separation from service, or in the transition to civilian life.

The fourth factor is inability to obtain appropriate clinical management for gender dysphoria. This factor does not have a specific time frame; it could arise at any time. It requires that clinical management was unavailable or inaccessible due to circumstances related to service. This might include posting to a remote location where gender-affirming care is not available, or discharge from the ADF resulting in loss of access to military medical services.

Section 9(2) limits the application of these factors: they apply only to material contribution to or aggravation of gender dysphoria where the person's gender dysphoria was suffered or contracted before or during (but did not arise out of) the person's relevant service. In other words, if the gender dysphoria was already present before service, the factors must have contributed to a worsening of the condition, not caused it initially. If the condition arose out of service (i.e., was caused by service), then the factors would not be needed because the condition itself would be service-related. The instrument does not address that scenario, but presumably other provisions of the VEA or MRCA would apply.

Section 10 cross-references other statements of principles where a factor refers to an injury or disease covered by another SoP. For example, if the factor "severe childhood abuse" involves a mental health condition like PTSD, the factors for that mental health condition would also need to be satisfied under its own SoP. This prevents claimants from relying on an intermediate condition without proving that intermediary condition is also service-related.

This instrument prescribes no penalties. It is not a regulatory or criminal measure. It is a statement of principles that governs the evaluation of evidence in compensation claims. There are no fines, imprisonment, or civil penalties for non-compliance by individuals. Enforcement mechanisms relate to administrative review: if a decision-maker fails to apply the instrument correctly, the claimant can seek review by the Veterans' Review Board or the Administrative Appeals Tribunal. The instrument is reviewable by the courts on judicial review grounds, such as jurisdictional error, procedural fairness, or error of law. However, the instrument itself is a legislative instrument made by the Repatriation Medical Authority, and its validity could be challenged on the basis that it is not based on sound medical-scientific evidence (see section 7, which states the Authority is of that view). A challenge could argue that the factors are not supported by the evidence, which would be a difficult ground given the Authority's expertise.

The instrument may also have enforcement consequences for the Commonwealth: if a claim is wrongly denied based on a misapplication of this SoP, the Commonwealth could be liable to pay the compensation that was due, with interest, and potentially costs if the matter goes to review. Conversely, if a claim is wrongly granted because a factor was erroneously found to exist, the Commonwealth may have limited recourse other than seeking to set aside the decision through internal review or tribunal appeal.

The instrument interacts with the Criminal Code in that making a false or misleading statement in a claim for compensation could constitute an offence under section 137.1 of the Criminal Code (providing false or misleading information to a Commonwealth entity), with a maximum penalty of 12 months imprisonment. Claimants or their representatives who fabricate a history of severe childhood abuse or category 2 stressors to satisfy a factor could face prosecution. Similarly, medical practitioners providing fraudulent reports could face offences under Part 7.4 of the Criminal Code (false or misleading documents). The instrument itself does not create any offence, but compliance with its terms affects the accuracy of the underlying claim.

The Repatriation Medical Authority has no enforcement role in individual claims. Its function is to determine and issue these statements of principles. Once issued, the instrument operates with legislative force.

This instrument is made under subsection 196B(3) of the Veterans' Entitlements Act 1986. Section 120B of the VEA provides that the Repatriation Medical Authority may determine a Statement of Principles for a kind of injury, disease, or death. The instrument applies to claims to which section 120B of the VEA or section 339 of the MRCA applies. Those sections specify the balance of probabilities standard for non-operational service. For operational service, the standard is reasonable hypothesis under s 120(1) and (3) of the VEA, and separate SoPs apply under subsection 196B(2). This instrument therefore does not apply to veterans with operational service.

Section 339 of the MRCA similarly applies to peacetime service. For hazardous service under the MRCA, different provisions apply.

The instrument also interacts with other Statements of Principles through section 10, which provides that if a factor refers to an injury or disease covered by another SoP, then the factors in that other SoP apply. For example, if the factor "severe childhood abuse" involves physical injuries that are themselves covered by a SoP for, say, fractures, the factors for fractures must also be satisfied in relation to service. This prevents bootstrapping: a claimant cannot rely on a non-service-related injury as a pathway to establishing gender dysphoria as service-related unless that injury itself is service-related under its own SoP. This is a careful design to maintain consistency across claims.

The instrument also interacts with the Veterans' Entitlements Act 1986 definitions of "eligible war service", "operational service", "defence service", and "hazardous service". Those definitions are not set out in this instrument but are incorporated by reference. Similarly, the MRCA definitions of "peacetime service", "operational service", and "hazardous service" apply.

There is also potential interaction with the Disability Discrimination Act 1992, particularly regarding the definition of a disability. Gender dysphoria may be considered a disability under that Act if it results in impairment. However, this SoP is solely about compensation under the VEA and MRCA, not about discrimination law.

Administrative law: decisions made under the VEA and MRCA are subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977, though the VEA contains some privative clauses. The instrument itself is a legislative instrument registered under the Legislation Act 2003, subject to disallowance by either House of Parliament within 15 sitting days after tabling, though the Repatriation Medical Authority's SoPs are not ordinarily disallowable as they are not made by a Minister.

Further, the instrument may interact with state or territory workers' compensation schemes if a veteran also has civilian employment, but the veteran would need to elect between schemes. The SoP does not affect state schemes.

Finally, the instrument interacts with the definition of "gender dysphoria" used by the Australian Defence Force for medical classification purposes. If a member is diagnosed with gender dysphoria, that may affect their deployability, but this SoP only governs compensation, not medical fitness.

This instrument is No. 114 of 2021, dated 26 November 2021, and commenced on 20 December 2021. It is a new instrument, not an amendment of a prior one. The Repatriation Medical Authority periodically revokes and replaces Statements of Principles as medical evidence evolves. For example, there may have been earlier SoPs for gender dysphoria under different numbers, but this instrument does not refer to them. The commencement date of 20 December 2021 means any claim lodged on or after that date must be assessed under this instrument. Claims lodged earlier would be assessed under the previous SoP in force at the time of lodgement, unless the new instrument is more favourable to the claimant and the decision is not yet final (s 120B(4) of the VEA allows reliance on the later SoP if it is more beneficial). The instrument does not contain a savings provision or transitional rules, so the default rules under the VEA and MRCA for determining applicable SoP apply.

The instrument was made by the Repatriation Medical Authority under section 196B(3). Subsection 196B(5) requires that before determining a SoP, the Authority must be satisfied on the basis of sound medical-scientific evidence that the condition can be related to relevant service. The instrument recites that basis in section 7. If new evidence emerges, the Authority may revoke or amend this instrument. There is no sunset clause, but the Authority has a statutory obligation to keep SoPs under review.

Because the instrument is a legislative instrument, it is subject to the Legislation Act 2003. It was registered on the Federal Register of Legislation and is published there. Amendments would be made by a new instrument that either revokes this one and substitutes a new one, or amends it directly. Direct amendments to SoPs are rare; typically, the Authority revokes and remakes. So this instrument may be superseded in a few years as new research on the aetiology of gender dysphoria emerges.

There is no amendment history within the instrument itself. The only date references are the date of making (26 November 2021) and the commencement date (20 December 2021).

The instrument does not cite any cases, and there is no litigation history mentioned in the text. However, as a Statement of Principles, it is likely to have been considered in administrative review decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. Those decisions would interpret the factors and definitions in specific claim contexts. For example, there may be disputes over what constitutes "severe childhood abuse" or whether a particular event qualifies as a "category 2 stressor". The AAT would apply the instrument's language strictly, giving the dictionary definitions their ordinary meaning. The Federal Court may have considered the validity of similar SoPs on judicial review. In other contexts, courts have upheld the Repatriation Medical Authority's decisions to issue SoPs, deferring to its expertise on medical-scientific evidence. A challenge to this SoP could argue that the factor "inability to obtain appropriate clinical management for gender dysphoria" is too vague or not supported by evidence that such inability can cause or worsen gender dysphoria. But that would require an applicant to show error of law or jurisdictional error. The instrument is presumed valid until set aside. There has been no reported High Court or Federal Court judgment specifically concerning this instrument as at its commencement. Any litigation would be fact-specific and likely arise from the AAT's review of a decision to refuse a claim. The AAT may publish decisions on AustLII, which would provide practical guidance on the operation of the factors. Practitioners should monitor those decisions for interpretations of terms like "chronic in nature" for category 2 stressors, and the meaning of "clinical worsening" in the factors. The lack of litigation history at the time of making does not mean there will not be future litigation; the precise definitions invite argument.

Several aspects of this instrument could trip up claimants, decision-makers, and advisers. First, the definition of relevant service is narrow. It applies only to non-operational service under the VEA and peacetime service under the MRCA. A veteran who served in a combat zone or on hazardous service cannot use this SoP. They must rely on a different SoP under subsection 196B(2) which uses the reasonable hypothesis standard. That different SoP may have different factors and a lower burden of proof. If an advocate assumes this SoP applies to all veterans, they will waste resources on a doomed claim.

Second, the exclusion of gender dysphoria associated with congenital disorders of sex development. This means an applicant with an intersex variation such as congenital adrenal hyperplasia or androgen insensitivity syndrome cannot rely on this SoP, even if their gender dysphoria is clinically indistinguishable. They would need to prove the condition arose from service through some other means, or bring a claim under a different condition category. The notes give only two examples, indicating that any such disorder is excluded.

Third, the factor of "inability to obtain appropriate clinical management for gender dysphoria" may be misinterpreted. It does not require that the inability caused the gender dysphoria; it is a factor that can connect the condition to service if the person's service prevented them from accessing treatment. But if the person never sought treatment, does that constitute an inability? The term "inability" suggests a barrier beyond control, not a mere failure to seek help. For example, if a serving member was posted to a remote base with no access to gender-affirming care, that could qualify. But if the member simply did not know such care existed, that may not be an inability. Also, the factor does not require that the inability occurred within a specific time frame, which could be an advantage.

Fourth, the category 2 stressor definition requires the effect to be "chronic in nature and cause the person to feel ongoing distress, concern or worry". This excludes acute stressors, such as a single traumatic event, even if it is severe. A one-off serious assault would not qualify as a category 2 stressor (it would need to fall under factor (2) as a serious physical attack). But a series of bullying incidents over time could qualify if they cause ongoing distress. Decision-makers must be careful to assess chronicity; a claimant who is merely temporarily upset after a relationship breakup but quickly recovers may not meet the definition.

Fifth, the timing requirements are strict: severe childhood abuse before clinical worsening, serious attack within five years before clinical worsening, category 2 stressor within one year before clinical worsening. "Clinical worsening" is not synonymous with "onset". If the condition was already present before service and did not worsen during service, these factors cannot apply unless there is aggravation. Section 9(2) limits application to material contribution or aggravation where the condition pre-existed or arose during service but not out of service. This is a crucial limitation: for a veteran who had gender dysphoria before enlisting and it remained stable throughout service, no factor will connect it to service unless the condition worsened after a relevant event.

Sixth, the "inability to obtain appropriate clinical management" factor could apply to aggravation if the inability caused a worsening. A claimant might argue that service prevented them obtaining hormonal therapy or surgery, leading to distress and worsening dysphoria. But if the member was discharged and then could access civilian care, the inability might cease. The factor might still exist if the inability occurred during service and caused a worsening that persisted.

Seventh, the cross-reference in section 10 to other SoPs may impose additional evidentiary burdens. For example, if the severe childhood abuse involved being physically beaten by a parent and the veteran later developed both gender dysphoria and PTSD, the gender dysphoria claim might require that the PTSD is also service-related under its own SoP, even if the abuse occurred long before service. The instrument does not require that the intermediate condition be service-related if the abuse is proven as a fact, but the factor "experiencing severe childhood abuse" is a fact, not a disease. However, if the veteran's claim relies on the abuse as a traumatic injury causing PTSD, the PTSD might need to be accepted as service-related for the aggravation claim. This is a potential trap.

Eighth, the definition of "severe childhood abuse" requires the harm be perpetrated by a parent, care provider, adult who works with or around the child, or any other adult in contact with the child. Bullying by a school peer of the same age is not covered. Only adult perpetrators qualify. Also, neglect must involve a "serious failure" to provide necessities, which is a high threshold.

Ninth, the instrument applies only to the balance of probabilities standard. If the decision-maker finds that the factors exist but is not satisfied on the balance of probabilities that they are related to service, the claim can still fail. The factors must each be related to the person's relevant service (section 9(1)). For example, a category 2 stressor that occurred entirely in civilian life, such as a divorce while the person was a civilian, would not be sufficient unless the divorce was caused or contributed to by service.

Tenth, the definition of "terminal event" is limited to five specific causes of death. If a person dies from a cause not listed, such as suicide from gender dysphoria without one of those terminal events, the death claim may fail. However, suicide might be considered a terminal event if it results in cessation of brain function. But suicide itself is not listed. The list only includes immediate physiological causes. A claimant would need to show that the gender dysphoria contributed to, for example, cardiac arrest via stress. This is a narrow pathway.

Compliance with this instrument is relevant primarily for decision-makers and legal representatives handling compensation claims under the VEA and MRCA. For a decision-maker, compliance means applying the instrument strictly when deciding whether gender dysphoria or death from gender dysphoria is related to a claimant's relevant service. The process involves the following steps:

1. Confirm that the claimant has relevant service as defined in the Schedule (eligible war service other than operational, defence service other than hazardous or British nuclear test defence service under the VEA, or peacetime service under the MRCA). If the service is operational, hazardous, or British nuclear test defence service, this instrument does not apply; the decision-maker must use the relevant reasonable hypothesis SoP.

2. Establish a diagnosis of gender dysphoria using the DSM-5 criteria set out in section 6(2). This requires six months' duration and clinically significant distress or impairment. The diagnosis must be made by a qualified mental health professional. The decision-maker must also ensure the condition is not excluded due to congenital disorders of sex development.

3. Determine whether the claim is for original acceptance or for aggravation. If the condition was suffered or contracted before or during (but not arising out of) relevant service, section 9(2) limits the factors to material contribution or aggravation. The decision-maker must assess whether the condition clinically worsened during the service period or thereafter in connection with service.

4. Identify whether at least one of the four factors in section 8 exists and is related to the person's relevant service. For each factor, the decision-maker must:

• For severe childhood abuse: obtain credible evidence of serious physical, emotional, psychological, or sexual harm or neglect while under 16, perpetrated by an adult in a defined relationship. The abuse must have occurred before the clinical worsening of gender dysphoria.

• For a serious physical attack or assault (including rape and sexual molestation): verify that the event occurred within five years before the clinical worsening. The event must be objectively serious. The decision-maker should gather medical reports, police reports, or other evidence.

• For a category 2 stressor: identify one of the seven listed negative life events, confirm it is chronic in nature (causing ongoing distress), and that it occurred within one year before the clinical worsening. The stressor must be related to relevant service - for example, social isolation due to a remote posting, relationship breakdown caused by service demands, bullying in the workplace by a superior, or financial hardship following discharge.

• For inability to obtain appropriate clinical management: establish that the veteran or member was unable to access appropriate gender-affirming care (e.g., hormone therapy, counselling, surgery) due to circumstances of their service, and that this inability contributed to clinical worsening. This may involve evidence of service requirements that prevented attendance at appointments, geographic isolation, or lack of military medical resources.

5. For death claims, confirm that gender dysphoria contributed to a terminal event as defined (pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function). The causal chain must be supported by medical evidence.

6. Apply section 10 if the factor refers to an injury or disease covered by another SoP. For example, if the factor involves a mental health condition such as PTSD that is alleged to be a category 2 stressor (e.g., being socially isolated due to PTSD), the factors in the SoP for PTSD must also be satisfied and related to service.

7. Document the reasoning clearly, linking each finding to the specific factor and the evidence. If no factor exists, the claim must be refused unless the decision-maker can find another basis for the connection outside the SoP (rare, as the SoP is intended to be exhaustive).

For claimants and their representatives, compliance means gathering evidence that matches the factor definitions precisely. For a category 2 stressor claim, evidence that the stressor was chronic is critical; a one-off event will not suffice. For severe childhood abuse, obtaining records from child protection agencies, medical records, or affidavits from family members may be necessary. For serious physical attack, a police report or hospital records should be obtained.

The instrument also requires that the factor be related to relevant service. A civilian event occurring after service may not be related unless the service contributed to it. For example, a divorce during the transition to civilian life may be service-related if the service caused the separation. The notes to factor (3) explicitly state that a category 2 stressor can arise in the course of service, as a result of separation, or in the transition to civilian life. However, the causal link must be more than merely temporal.

For legal advisers, it is important to check which SoP applies based on the type of service and the date of claim. Also, monitor any litigation that interprets the definitions, especially "chronic in nature" and "inability to obtain appropriate clinical management". Use AAT decisions as precedent guides.

The Repatriation Medical Authority itself must comply by reviewing this instrument periodically and amending or revoking it if new sound medical-scientific evidence emerges. The Authority has no role in individual compliance beyond issuing the SoP.