The Short March Through the Family Court

The short march of childhood gender dysphoria though the Family Court

In pursuit of Marxist revolution, Antonio Gramsci declared the primacy of winning the battle of ideas: of altering the “common sense” of society and its institutions. The German communist Rudi Dutschke declared the necessity for a “long march through the institutions”, alluding to the 4000-mile trek Chinese communists undertook to secure refuge in Yan’an in preparation for ultimate victory. The American Marxist Herbert Marcuse assured Dutschke that his was the “only effective way”, deploring the situation in 1971 in which “the radical Left has no equal access to the great chains of information and indoctrination”.

One institution in Australia whose “common sense” has been dramatically altered in recent years is the Family Court. Over the “common sense” that boys and girls are binary entities in accordance with their XY and XX chromosomes, has triumphed the revolutionary ideology of gender fluidity in which the mind supersedes biology, gender is how you feel, and hormones and surgery should be employed to rearrange the body to please that mind.

No long march has preceded the supremacy of gender fluidity in the institution of the Family Court. It only took thirteen years for the court to abrogate its protective role for children confused over gender identity in favour of the Sexual Left. Along the way, it vacillated, then capitulated to uncritical facilitation of its practices, then sought to abandon the field.

Of course, Gramsci was not fixated on one institution. To the contrary, he desired to supplant the “bourgeois hegemony” of ideas with the revolutionary ones of Marx throughout society—from political parties and legislation, to schools, the media and churches. And, with Labor governments in Queensland, Victoria and the ACT seeking to institutionalise the ideology of gender fluidity by banning alternatives to transgendering confused children, with children being taught the possibility of alternative gender identity in Orwellian “safe schools” programs, with mainstream media “puffing” the transgender experience, and the dark web recruiting and directing, the “great chains of information and indoctrination” for sexual revolution are being secured, under the blessing of “enlightened” clergy.

The Australian Health Practitioner Regulation Agency may also become an instrument for hegemonic change: a new Code of Conduct may deem it unprofessional for a doctor to “broadcast” opinions contrary to those of regulating authorities, thus undermining “community trust”. And, as many regulatory authorities have swung towards compliance with the ideology of gender fluidity, de-registration is implied.

This essay will review the surrender of the Family Court of Australia to the ideology of gender fluidity by reference to several cases. It will, however, end on a note of optimism. As a number of communists ultimately deplored “The God that Failed” and returned to common sense, it appears just possible that the Family Court has begun to discern the delusion of the doctrines of gender fluidity, and the dangers of its drugs.

Pre-reading

Certain things need to be emphasised. Childhood gender confusion was rare but is increasing dramatically. The great majority of those affected will orientate, through puberty, to an identity congruent with their chromosomes. Counselling for individual and family predispositions, with psychiatric care of co-morbid mental disorder, has been shown to help that process. Such psychotherapy, however, is now decried, may be banned and even criminalised as “conversion therapy” by political proponents of gender fluidity. “Conversion therapy” is an Orwellian term meaning converting a child back to the sexual identity decreed by its chromosomes. The term brings to mind the imposition of hormones, castration and lobotomy upon homosexuals to produce heterosexual attraction. Ironically, in the attempt to convert the bodies of children to those desired by their minds, the Family Court has approved the administration of those same hormones, despite their likelihood to induce chemical castration and cerebral dysfunction. The Family Court has already approved mastectomies, and may be facilitating, not simply surgical castration, but the entire re-engineering of genital tracts.

Hormonal therapy has two components, with the first usually leading to the second. Twenty years ago a drug was developed that would interrupt the cascade of hormones that began in the brain and continued to the gonads, resulting in puberty and the maintenance of sexual characteristics. The drug blocked the production of one of the hormones near the beginning of that cascade, becoming known as the “puberty blocker” whose administration comprised Stage 1 of the “Dutch Protocol” (developed in a clinic in Holland) for transgendering. Though asserted throughout Family Court deliberations that blockers are “safe and entirely reversible”, international research proves otherwise.

The blocked hormone has roles other than in the vertical cascade to the gonads. It has horizontal connections throughout the brain, including the amygdala, in the limbic system which co-ordinates emotions, cognition, memory and reward into a kind of inner identity. The blocked hormone also connects with a primary centre of sexualisation in the mid-brain (as well, of course, as invoking secondary sexualisation by the sex hormones from the gonads). Administration of “blockers” neuters a child in an immature state of sexual and psychological development, interferes with limbic function of identity, and blocks the normal processes of sexualisation. On blockers, the limbic systems of sheep have revealed structural and functional change associated with reduced function in mazes, increased emotional lability, and a preference for the familiar over the novel.

Blockers are used, allegedly, to provide more time for consideration of sexual identity. But the blocking of Nature’s methods of establishing that identity renders that claim biologically implausible. By increasing emotional lability, blockers may complicate mental disorders, of which gender confusion is one symptom. By maintaining a desire for the familiar, the novelty of puberty is more likely to be eschewed, promoting passage to Stage 2 therapy, the administration of cross-sex hormones. Though many side effects of Stage 2 hormones have been admitted in Family Court proceedings, proponents have refrained from discussing effects on the growing brain.

Stage 3 therapy has been defined as the irreversible changes inflicted by surgery but Family Court has approved mastectomies on adolescents and Re Mathew (2018) may pave the way for genital surgery.

Finally, there is no evidence that gender dysphoria per se leads to suicide, but co-morbid mental disorders such as depression, anxiety and autism are known for such proclivity. Gender-confused children need compassionate care, part of which may involve prevention of transgendering, with its twenty-to-thirty times greater rate of suicide than in the ordinary adult population.

The March.

Though Marion’s case in the High Court in 1992 antedated by a decade the beginning of the surge of gender dysphoria, its considerations remain basic to Family Court decisions regarding that condition. Marion was a fourteen-year-old mentally retarded girl whose parents sought authority for sterilisation to relieve stresses of menstruation and unwanted pregnancy. The court refused authorisation, arguing the intervention was non-therapeutic, irreversible, invasive and associated with a significant risk of the wrong decision being made whose consequences were grave.

“Non-therapeutic” treatment was defined as “inappropriate or disproportionate having regard to cosmetic deformity, pathological condition or psychological disorder for which the treatment is administered, and of treatment which is administered chiefly for other purposes”. Whether gender dysphoria is a disorder deserving “therapeutic intervention”, and whether the affected young person is capable of giving informed consent, are two issues of Marion’s case that continue to rankle.

Regarding consent, precedent was found in the ruling of the UK House of Lords in 1985, when a Mrs Victoria Gillick had contested, unsuccessfully, that children under sixteen were not competent to consent for contraception. The Lords declared such consent was possible if the adolescent possessed “sufficient understanding and intelligence to … fully understand what is proposed”. The Australian High Court concurred: its authorisation would not be needed for interventions involving “malfunction or disease”, were given “for the traditional medical purpose of preserving life”, and with the consent of a “Gillick-competent” child. Though easily defined, assessment and relevance of Gillick competence has remained flexible and, one way or another, has not stood in the way of transgendering.

From this uncertain background, the march of gender fluidity began in 2004 with thirteen-year-old Alex,[1] born female but identifying as male, seeking authorisation for suppression of menstruation. The case was complicated by uncertainty of Gillick competence, and such family disruption that Alex had been taken into care. Alex suffered from depression and “perceptual disturbances” in which he “could hear his own voice or the voice of his [dead] father” and felt that “somebody can read my mind and the thoughts in my mind”. Nevertheless, it was decided he would benefit from hormonal suppression of menses prior to initiation of “irreversible” cross-sex hormone therapy when aged sixteen. The judge did “wonder” if gender dysphoria was a “disease or malfunction” or a variant of normal sexuality.

In 2009, the Family Court [2] authorised bilateral mastectomies for Alex, contrary to international guidelines against irreversible surgery to children under eighteen. The court argued that should he change his mind “the disadvantages would be minimal as Alex could have reconstructive breast surgery and use means other than breastfeeding to feed a baby”, thus reducing the role of breasts to cosmetic appendages.

Re Brodie (2008)[3], concerned a thirteen-year-old natal female adamant she was a boy. Brodie existed in a “tremendous state of turmoil and anger” at betrayal by an abandoning father, but therapists argued puberty blockers would reduce “hostility and anxiety”, assuring their effects were “completely reversible”. The judge congratulated Brodie for having therapists who “continue to keep up with research”.

The “Dutch Protocol” was introduced in re Bernadette[4] (2010). Based on the ideology that gender identity was determined by the mind, not the “genitalia or other aspects of … physical appearance or presentation”, distress from incongruence between mind and body could be addressed by three stages of therapy which sought to align the body with the mind.

The judge, however, was not convinced transsexualism was a “normally occurring factor of human development”, concluding “it was in the best interests of every child” for the Family Court to retain authorising power. Then, for the first and almost last time in Family Court history, concerns of “potential damage to the brain” by puberty blockers were raised. The judge, nevertheless, declared he was “satisfied” Stage 1 therapy was reversible despite “the British view … that brain development continues throughout adolescence” and that blockage may incur “potential damage”. The judge was persuaded by Dutch professors who commented on “the need for a study on the brains of adolescent transsexuals to endeavour to detect functional effect and difficulties”. Thus, the judge appeared satisfied that an absence of brain damage in the present would be confirmed by research to be pursued sometime in the future. Furthermore, the judge declared, “so far as Stage 2 is concerned I am satisfied that it would be possible to reverse that treatment”. The judge’s optimism was unfettered by stories, now emerging from de-transitioners, of the impossibility of undoing damage.

Re Jamie (2011)[5] was the beginning of the saga of a ten-year-old natal boy, identifying as female, that continued into the Full Court. Though declared Gillick-competent to receive puberty blockers (at an age lower than then recommended), the court was informed “it was difficult to ensure” Jamie understood “the full and extensive ramifications of such decisions, especially in the long term”. Nevertheless, the Family Court declared that blockers were “safe and entirely reversible” and there was no need for their authorisation by the court.

The court decided, however, that the nature of Stage 2 therapy needed its continued authorisation. If Gillick-competent, the child would be authorised to consent. If not, the court would determine the child’s “best interests”. Four years later, Jamie was suffering as a “pre-pubescent girl … [who] does not resemble her female peers, particularly in terms of development of the breasts”. The court authorised oestrogen therapy, again when younger than recommended.

Re Sam and Terry (2013)[6] concerned a natal boy identifying as a girl, and a girl as a boy. Both were sixteen, and both were deemed Gillick-incompetent. Sam was essentially housebound with mental disorder. Terry had Asperger’s syndrome. A psychiatrist opined that gender dysphoria does not require psychiatric treatment: “what it requires is gender transition which is a medical and surgical process”. Stage 2 therapies were approved, in their “best interests”.

The court reaffirmed its need to be the “decision maker” regarding advanced therapy for gender dysphoria, citing re Jane and the need to prevent the removal of a “girl’s clitoris for religious or quasi-cultural reasons, and of the sterilisation of a perfectly healthy girl for misguided, albeit sincere reasons”. The court appeared convinced that surgical interventions on the reproductive systems of gender-confused adolescents, including castration, would be “guided”, and not derived from cultural influences.

In re Cameron (2015)[7], the judge evinced pleasure that gender identity incongruent with chromosomes was “not now generally considered a mental illness” and though the natal girl “did not have full understanding”, authorised Stage 2 therapy.

By 2016, certitude of the positive effects of hormonal therapy had become utopian. In re Celeste[8], concerning a natal male transitioning to female, it was declared Stage 2 therapy “would maintain … self-esteem, retain … congruence of self as a young woman and facilitate her normative psychological, social and sexual development”. Judicial credulity in such prophecies was not challenged by the prior history of Asperger’s syndrome, attention deficit/hyperactivity syndrome, and language disorder which had reduced Celeste’s capacity for education, nor the admission, in the court, that she “does not understand everything that is said to her”.

In re Gabrielle[9], the court found oestrogens to be necessary for another natal male to “continue living happily”. Their denial “would result in a loss of recognition and validity of her sense of self … depression and anxiety [will[ increase and [she] will be at greater risk of self harm and death from suicide”. Paradoxically, it was asserted that should Gabrielle change her mind and wish to re-align identity with chromosomes at some future stage, despite all her previous mental co-morbidities (and the irretrievable consequences of transgendering therapy), “she has the thoughtfulness and creativity to be able to manage … de-transition comfortably”.

Hyperbole of outcome combined with silence on side-effects is unusual in medical practice. Given the political introduction of this essay, the word propaganda is evoked, as are the words of Lenin, Gramsci’s mentor: “Telling the truth is a bourgeois prejudice. Deception, on the other hand, is often justified by the goal.”[10]

In 2016, approval for mastectomies continued. Re Lincoln[11] concerned a natal female who had been on blockers for two years and cross-sex hormones for six months. A medical doctor supported the mastectomies. While acknowledging Lincoln was “not very knowledgeable about … side effects and complications”, the doctor assured that this “did not strike me as being out of keeping with his stage of development”. The judge concluded Lincoln was competent to consent but equivocated: “if I am wrong … I accept the submission of all parties that the proposed treatment is in the best interests of Lincoln”.

Re Lincoln paved the way for surgical transgendering of children. The court could not understand how a child could consent for Stage 2 hormonal therapy but not Stage 3 surgical therapy, because both were “irreversible”. It also paved the way for earlier administration of cross-sex hormones: one therapist declared that “lagging behind their peers in pubertal development” creates its own “psychological stress” and, therefore, Stage 2 should start at a lower age than the sixteen years recommended internationally, when the “diagnosis is clear cut”. The Australian Standards of Care and Treatment Guidelines for Transgender and Gender Diverse Children and Adolescents, promulgated in 2018 by the Royal Children’s Hospital, Melbourne, would concur.

In re Darryl (2016)[12] an expert witness boldly declared that the natal female child who was prone to depression and self-harming did not possess “the competency to consent to irreversible treatment” and “given the grave consequences, I am not persuaded that most minors would be in the position to fully understand the implications of irreversible hormone treatment over the entire lifespan”. The judge disagreed, declaring “there can be no doubt” about Darryl’s competence, adding he did “not accept the words ‘understand fully’ require a child to have achieved the maximum understanding which later years may give them when their brain and personality are fully developed”.

That year, 2016, ended with a call, in re Lucas[13], for the abolition of the authorising role of the court for Stage 2 therapy. Regarding a seventeen-year-old natal girl seeking authority for testosterone, the judge declared “an urgent need for statutory intervention … to undo the consequences of re Jamie”, thus leaving the administration of both Stage 1 and Stage 2 to the medical proponents of gender fluidity.

In February 2017, the first of Kelvin’s[14] cases authorised administration of testosterone to a sixteen-year-old natal female, while referring consideration of the necessity for that role to the Full Court. Kelvin had come from a broken home and, living with his father, was estranged from his mother. When nine, he had “discovered the concept of transgender in a book and immediately identified with it”. Social transgendering had begun by thirteen years, but was complicated by “anxiety and depression” that interrupted schooling. A psychiatrist prophesied that testosterone would “further align [his] physical gender characteristics with his inner gender identity”, promoting “a healthy and integrated identity, positive self-concept” which would evolve into a “healthy and well-adjusted adult”. There had, however, already been “noticeable” improvements during twelve months of psychotherapy: “despite brief moments of dysphoria [his] underlying attitude and confidence has improved”, but these were attributed to transgendering rather than any general maturation, and testosterone was encouraged.

In November 2017[15], in the next stage of Kelvin, the Full Court surrendered its gate-keeping role for Stage 2 therapy. It revisited Marion’s case but was assured gender dysphoria was, indeed, a disorder for which Stage 2 therapy was appropriately and proportionately “therapeutic”. The Full Court claimed it was “readily apparent the judicial understanding of Gender Dysphoria and its treatment have fallen behind the advances in medical science”. One such proffered advance was “the experience of the gender service of the Royal Children’s Hospital … that 96% of patients continue … to identify as transgender into late adolescence and so one sees some evidence there about persistence of gender dysphoria”.

The court’s acceptance of this experiment as “science” was unchallenged. No one emphasised the need for therapeutic controls, independent evaluation, blinded administration, biological plausibility, and absence of contrary effects in animal models. None of the five intervening parties mentioned psychological obstacles to leaving “The Protocol”, including the pressures of authority and custom, and loss of celebrity. Sheep studies would provide biological understanding of resistance to change. The Full Court declared that “in no case has contradictory evidence been forthcoming … to challenge the desirability of the relevant treatment”, apparently without wondering how such contradiction might appear without invitation.

In March 2018, in re Mathew[16], the revolutionary ideology of gender fluidity appeared to have neared the end of its march. Having abrogated its role with hormones, the Family Court would now do so for genital surgeries, as suggested in re Leo. Mathew was a sixteen-year-old natal female seeking and receiving authorisation for bilateral mastectomies. The judge, however, went further, making a declaration that “where the subject child has been diagnosed as suffering from Gender Dysphoria, where treating practitioners have agreed that the subject child is Gillick competent, where it is agreed that the proposed treatment is therapeutic and where there is no controversy, no application to the Family Court is necessary before Stage 3 treatment for Gender Dysphoria can proceed”.

Leaving no room for misinterpretation, the court defined Stage 3 treatment to include, but not be limited to, chest reconstructive surgery, phalloplasty, hysterectomy, salpingectomy, creation of a neo-vagina and vaginoplasty. Though such surgery under the age of eighteen is contrary to international guidelines, rulings by the Family Court have been characterised by flexibility.

In May 2020, in re Imogen[17], all that remained for completion of the march of the sexual Left appeared to be resolution of difficulties caused by a dissenting parent. Imogen was an allegedly (but questionably) Gillick-competent sixteen-year-old natal male who sought authorisation for cross-sex hormone therapy with support from doctors and father, in opposition to the mother who had appealed and received the right for a second opinion. A third group, supported by “a number of women’s organisations in Australia” sought permission to raise concerns about “the current orthodox medical treatment of children”, “the impact of aggressive transactivism on organisations established to protect human rights”, the “many developments that raise questions about the merits of gender affirming in all cases”, the capacity of a minor to consent to transgendering procedures, and the need to “revisit the notion of the ‘mature minor’ as promulgated 35 years ago” in the Gillick case[18]. The group questioned the decision of the Full Court regarding Kelvin, declaring it “was a stated case and not a defended case and therefore the court should not be guided entirely by that case which was based on limited and largely untested medical evidence”.

The judge did not approve of this external intervention but did make an extraordinary statement. In his summary, he declared, “questions in this case … may be whether a court order is necessary for Imogen to have gender affirming therapy. This potentially could involve a reconsideration of whether or not Stage 2 treatment (and possibly Stage 1 treatment) is non-therapeutic”.

Using the analogy of Mao’s March, the statement raises the possibility that diagnosis and management of childhood gender dysphoria may be forced to return to Jianxi, whence it began. It suddenly raises the concept that “common sense” may have begun to reject the hegemony of Gramsci and the sexual Left in the Family Court. Perhaps external questioning of the Dutch Protocol publicity has infiltrated the court. Perhaps the growing phenomenon of de-transitioning has been noticed. Perhaps Arthur Koestlers have arisen to condemn “the god of gender fluidity that has failed”. Who knows? But the outcome of the next stage of Imogen is awaited with bated breath.

Post Script.

The question is how the sexual Left has been able to dominate the court to the virtual exclusion of all contrary opinion, apparently leading judges to conclude that no such contrary opinion existed or was worthy of consideration. My experience exemplifies the problem.

One of my Quadrant articles, “The Family Court Must Protect Gender-Dysphoric Children”[19], was received into evidence in re Rae[20], concerning oestrogen therapy for a seventeen-year-old natal male, deemed Gillick-incompetent, with Asperger’s syndrome. Declaring that “it is important for the Court to be as well informed as possible about the potential consequences”, the judge distributed the Quadrant article comprised of international research on natural recovery under “watchful waiting”, co-morbid mental disorder, lack of specific association with suicide, biological implausibility, prominence of side effects and lack of evidence for benefit, concluding “instead of rescinding their protective role, courts should call for the regulation of unproven, invasive irreversible therapy on unwitting children”.

Proponents for transgendering dismissed the arguments: they were not contained in a “peer reviewed” journal, represented mere “personal opinion”, gave unwarranted prominence to animal studies, and wrongly ascribed as “side effect” the impact of cross-sex hormones on the human brain which is “an expected part of the physical, psychological and emotional changes”. Rapid shrinkage of the adult male brain on oestrogen, revealed by Pol et al[21], was a “not surprising” documentation of “subtle brain changes”.

Another of my Quadrant articles, “Childhood Gender Dysphoria and the Law”[22] was brought, a week later, before the Full Court in re Kelvin, but its contents were not acknowledged. Interestingly, my name was misspelt differently in both courts, precluding electronic reference.

Dr John Whitehall is a professor of paediatrics at a Sydney university. He has written several articles for Quadrant on childhood gender dysphoria.

[1] Re Alex [2004] FamCA 297

[2] Re: Alex [2009] 1292 (6 May 2009).

[3] Re Brodie [ 2008] FamCA 334

[5] Re Jamie [2015] FamCA 455

[6] Re Sam and Terry [ 2008] FamCA 334

[7] Re Cameron [2015] FamCA 1113

[8] Re Celeste [2016] FamCA 503

[9] Re Gabriell [2016] FamCA 470

[10] Soviet and communist quotations. Pergamon. 1987. 1127.

[11] Re Lincoln [2016] FamCA 267

[12] Re Darryl [2016] FamCA 720

[13] Re Lucas [2018] FamCA 161

[14] Re Kelvin [2017) FamCA 78

[15] Re Kelvin [2017] FamCAFC 258

[16] Re Mathew [2018] FamCA 161

[17] Re Imogen No 4 [2020] FamCA 393

[18] Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112

[19] Whitehall J. Quadrant, November 2017.

[20] Re Rae.[2017]. FamCA 958

[21] Pol H, Cohen-Kettenis P, van Haren N. Changing your sex changes your brain: influences of testosterone and estrogen on adult brain tissue. European Journal of endocrinology. 2006;155(suppl_1):S107-S114.

[22] Whitehall J. Quadrant, May 2017