Commentary
The decision of Strum J on 9th April 2025 is a very welcome indication that the Australian Family Court is moving away from the notion that medical transition of children should be seen as automatically ‘therapeutic treatment’, in a meticulous and lengthy judgment which unpicks the mother’s case and her expert witnesses with care.
It is both disturbing and alarming to see how the mother was ‘affirmed’ by various experts in a ‘fixed and rigid’ view that her son wanted to be female, but heartening to see a Family Court Judge who was very aware of what was going on and was having none of it. There are clear echoes of Re J [2016] here and a very welcome indication that we are returning to a strict focus on the welfare of the child, rather than a continued pandering to an unevidenced and ideological perspective about the benefits of medical transition for children.
Para 92 is for me particularly interesting. The Judge in this case rejected criticisms by a fellow Judge of the Cass Review as politically motivated calling such remarks ‘speculative’. It is clear that this Judge found the Cass Review authoritative and helpful, relying on its developmental considerations for children and adolescents and citing at length its conclusions about the efficacy and impacts of puberty blockers.
I cheered internally when reading the Judge’s firm rejection at para 106 of any ’emotive suggestion’ that the Cass Review should be seen as part of a ‘third wave’ of transgender oppression, akin to Nazi book burning. Such suggestion had ‘no place whatsoever’ in independent expert evidence and demonstrates ignorance of the true evils of Nazism.
The Judge was clear that earlier decisions of the Australian courts that treatment by way of puberty blockers is ‘therapeutic’ would need to be reconsidered on the better evidence that he had before him (para 194).
It is a relief to see recognition that the mother derived ‘benefit’ from being the parent of a trans gender child (para 203) and the court had grave reservations about her operating sole parental responsibility.
While the judgments meticulous and clear eyed unpicking of the partial and misleading positions of the mother’s experts is very welcome, it remains a matter of great sadness that for so many years, the Family Courts, in a variety of jurisdictions, have been willing to abandon evidence and sense to support an ideology that has the potential to cause irreversible and significant harm to children.
Let us hope this judgment heralds the return of Family Courts all over the world to their fundamental values; to identify and protect the welfare of the child as its paramount concern.
The Judgment
Re: Devin [2025] FedCFamC1F211
This case involved a 12 year old boy. His parents separated when he was 4 years old. Final parenting orders were made in 2018 which provided for the parents to have equally shared parental responsibility. By 2019 the mother had concerns about Devin’s wellbeing and wished him to undertake therapeutic counselling with an organisation dedicated to the well being of LGBTIQ+ community. Devin’s mother said he was suffering from gender incongruence/dysphoria and should be medically transitioned by way of puberty blockers as he had an ‘enduring female gender identity’. This wish to block his puberty was first expressed in 2021 when he was 8 years old and already significantly socially transitioned.
Devin’s father disagreed, asserting that he was rather ‘gender expansive’ and presented with some stereotypically feminine interests/preferences. The hearing took place over 20 days with a significant volume of evidence.
The ‘Reasons for Judgment’ begin with a quote from Maria Montessori
A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life. We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.
The Judge noted that this illustrated the central issue for determination in this case; there are restrictions on the activities and choices of children because their wishes and feelings, while potentially deep seated and genuinely felt, have ‘potentially grave ramifications for their future lives’ and may not be wishes that survive into adulthood.
It is troubling that the Judge comments at para 10
Despite my repeated exhortations to the parents and, to some extent, the experts who supported their respective cases, as well as the lawyers who represented them, to recall that the Court was deciding a case involving the best interests of the child and not the cause of transgender people, that occasionally seemed to fall on deaf ears.
The mother’s experts strayed from their obligations to give objective and unbiased opinion, such as Professor L who described herself essentially as an activist for the transgender cause and who gave misleading responses that omitted findings/material that detracted from her opinion (para 101). She went even further, suggesting that ‘we are currently living through the third wave of transgender oppression’ similar to Nazi book burning (para 105). The Judge was aghast (para 106)
The emotive suggestion, by an expert witness, that the Cass Report forms part of a “third wave of transgender oppression” commencing with the Nazis has no place whatsoever in the independent evidence that should be expected of such an expert. It demonstrates ignorance of the true evils of Nazism and cheapens the sufferings – and mass murder – of the millions of the victims thereof, which included, but were most certainly not limited to, transgender people, as well as gay and lesbian people, amongst other groups of people. I consider there to be no comparison whatsoever.
The mother’s case outline referenced the Change or Suppression (Conversion) Practices Prohibition Act 2021, which the Judge determined was irrelevant to these proceedings, but the Judge noted the ‘chilling effect’ of this Act in the difficulties faced by the father in obtaining expert evidence and alternative treatment proposals for Devin, as there was evidence to suggest that many shyed away from treatment that was not ‘affirming’ in case they fell foul of the Act, which creates criminal offences attracting up to 10 years imprisonment.
One expert stated
Anecdotally, I have heard practitioners express concern that if they do not automatically affirm a child’s declared gender identity they would find themselves accused of “conversion therapy” as per the legislation. This is despite social transition not being beneficial or harmful, exploratory therapy being an acceptable approach worldwide, and the fact that there would be no need nor intention to “convert” [the child] to have a “cis” identity, just merely not blinding affirming and medicalising.
The Judge was blunt. Para 24
I made it clear … that the Court was not concerned “in what the community thinks” or ideologies, but only what, on the evidence, is in the child’s best interests. Ideology has no place in the application by courts of the law, and certainly not in the determination by courts exercising jurisdiction under the FLA of what is in a child’s best interests.
It is heartening to see the Judge pay careful attention to the Cass Review final report (note para 51) and the considerable variation in international guidelines regarding criteria for starting puberty blockers. The experts disagreed with whether or not Devin had gender dysphoria/incongruence and on the likelihood of Devin persisting with either. The Judge was particularly critical of the mother’s expert Dr N and how cross examination revealed ‘significant issues’ with her diagnostic process. She failed to undertake a ‘biopsychosocial’ assessment of Devin (a broad framework that takes into account the full range of interacting factors) and her notes did not support a ‘consistent, persistent female identity’.
Dr L was similarly treated with caution, as she relied on her own work in drafting the Australian Standards of Care and Treatment Guidelines as ‘best practice’, making her ‘judge, jury and executioner’. The Guidance is strongly ‘affirming’ and relies on statistics about suicide attempts if affirming does not occur. The Judge was particularly concerned to note the Guidance does not consider failure to affirm a ‘neutral’ option, commenting at para 74
it is concerning that an oddly binary approach is adopted in relation to children, especially of the age of the child the subject of these proceedings; that is, to affirm unreservedly those who present with concerns regarding their gender, brooking no questioning thereof. The case of the mother, supported by the evidence of Dr N, is that because the child says so, the child is, and must unquestioningly be affirmed as being, female in gender identity. However, that overlooks the obvious, namely, that the child is still a child and not even, if it matters, a teenager.
The Judge notes at para 75 that the child has lived in a gender affirming home environment and has a social circle dominated by transgender young people. Devin was introduced to a transgender ‘support’ group at the age of 6. The possibility of contextual/environmental influence was accepted, even by Dr N. The mother chose ‘gender affirming underwear’ for her son, to pressure and flatten the penile area, without seeking any medical advice as to its potential adverse impacts.
With echoes of the English case Re J [2016] the mother further asserted that Devin wanted to cut his penis off and tried to self harm aged 6. But she made no mention of any of this in an affidavit of August 2020 and the Judge considered this issue had ‘gathered momentum with the passage of time’ and he rejected the mother’s evidence about this noting her ‘rigid, fixed’ views.
Although the mother’s experts opined that ‘gender identity’ is ‘internal and immutable’ and thus not subject to external influence, neither could point to any empirical or substantive basis for their opinion, but offered only anecdotes (para 88). The Judge was concerned by the mother’s team’s dismissal of any other relevant factor such as maternal influence or underlying neurodivergence (para 90). Again the Cass Review is given favourable mention and the mother’s experts criticised for being ‘at odds’ with it (para 91). Bizarrely it was the mother who put the Cass Review in evidence, even thought it did not support her case.
Interestingly, the Judge dismissed the criticism of the Cass Review offered by a brother Judge in the case of Re Ash (No 4) [2024] FedCFamC1F 777, (para 92). To suggest that because the Cass Review was undertaken in a ‘vexed environment’ means that it was driven by ‘political imperative’ was a rejected by this Judge as ‘speculative’. The Judge goes on to quote at length from Chapters 6 and 8 of the Cass Review, that examine developmental considerations for children and adolescents, and the possible factors influencing the ‘very altered profile of the children and young people who are now being seen in NHS gender services’.
The Judge comments at para 98
Importantly, the Cass Report states that “[s]implistic explanations of either kind (‘all trans people are born that way’ or ‘it’s all social contagion’) do not consider the wide range of factors that can lead young people to present with gender-related distress and undervalues their experiences” (at paragraph 8.25) and that, rather, “gender incongruence is a result of a complex interplay between biological, psychological and social factors” (at paragraph 8.52). Those statements accord with much of the evidence in this case, as well as with commonsense, and I place significant weight on them.
The Judge was clear that Dr N had allowed herself to be influenced by the mother and failed to take into account the father’s views or parenting style (para 111). The imminence of the trial was conceded by Dr N as causative of a diagnosis of Devin as incongruent/dysphoric and in this ‘rush’ to provide evidence the mother at least distorted some of Devin’s symptoms.
At para 123 the Judge confirmed that the opinion of Dr M was not, as the mother alleged either transphobic or ideologically extreme. Dr M had said
Humans cannot change sex. It is not possible for [the child] to be a girl, a woman when he’s [sic] older, or a female. He [sic] can only ever be a male, or a male whose body has been medicalised. It should be celebrated that [the child] is a male who refuses to be constrained by current society’s expectations of his sex, while at the same time maintaining the reality of that sex. [The child] should be prepared for puberty in that it brings changes and while these changes can be confronting and distressing for many of the human race, it will give him [sic] benefits when he [sic] is older. It is important that the adults in [the child’s] life remember that puberty is not a disease, it is a normal developmental stage of humans that brings sexual and reproductive maturity. Avoiding this means [the child] will never reach this stage of maturity.
Taking into account all the concerns about the mother’s evidence, the court was not willing to find the mother had proved on the balance of probabilities that Devin is gender incongruent or had gender dysphoria. IF Devin were either, should puberty blockers be administered? (para 134). The Judge was not impressed with Professor L’s opinion that ‘trans people’ are best placed to know what is in their best interests, given the complexity of the medical evidence adduced in this case (para 143). The Judge accepted the evidence of Dr O (para 151) that there was a lack of evidence and expert consensus regarding gender affirming treatment and an alternative avenue is developmentally informed and holistic psychotherapeutic approaches.
The Judge examined the therapeutic approach at length and expressed concerns that the CHGS clinicians overstated the certainty of the evidence and dismissed the possibility of alternative treatment. He cites the Cass Review to note the surprise that the novel use of puberty blockers did not require a more rigorous trial (para 158) and the concern about the impacts of blocking puberty in general.
The impacts on Devin of puberty blockers, given that almost all children who take puberty blockers progress to cross sex hormones, would be to arrest his physical development at Tanner Stage 2. His penis would never grow. He will be sterile. He will have no sexual function. He will likely develop bone thinning. The effects on his brain are unknown. He will be a medical patient for the rest of his life.
The Judge was therefore not satisfied that even if Devin was gender dysphoric, the purported benefits of puberty blockers outweighed the identified risks (para 187). He accepted the opinion of Dr M (para 191)
the most likely best strategy for [the child] would be to give him [sic] time to breathe, to allow life to settle in his [sic] visitation pattern, to not push nor deny any expression, to not seek treatment or information on a condition/state that [the child] may or may not have that may or may not eventuate into something more formative. Both parents should avoid [the child] being “boxed in” to any identity. It is possible that ongoing engagement with [City K Children’s Hospital] Gender Clinic and its affirmative nature could serve to concrete [the child’s] alternate gender identity that might otherwise desist if left to live life without influence of gender affirmation.
The Judge made it clear that treatment by way of puberty blockers is qualitatively different to childhood vaccinations or surgery to mend broken bones. Earlier decisions of the Australian courts would need to reconsider its categorisations of puberty blockers as reversible.
It is also very refreshing to see the Judge note that the mother derived a personal benefit from being the parent of a transgender child; this had influenced her actions.