PATHA goes to the Court of Appeal

A constitutional battle over puberty blockers.

On Monday 26 January, the NZ Court of Appeal will reconvene early after the summer break especially to hear an appeal from PATHA* about the High Court interim ruling of 17 December that gave ‘interim relief’ to the government’s puberty blocker ban.

PATHA is not happy that the High Court, instead of declaring the regulations unlawful and quashing them, only granted ‘interim relief’, recommending that the Crown should take no steps to enforce the regulations, pending the determination of a judicial review (likely to be held in May).

This is not an injunction. The Crown should, not must. It’s a judicial suggestion, not a binding order. The puberty blocker regulations have been gazetted and the High Court has no power to declare them unlawful. Nor is the Crown bound to observe the terms of the ‘interim relief’order. [147 of the High Court Judgment]

This puts gender medicine doctors in an odd position. The judge has created a situation where doctors who prescribe puberty blockers to minors for gender dysphoria are technically breaking the law, but with a judicial hint that prosecution is frowned upon. If they keep prescribing puberty blockers they are breaking the law with no real security that they will not be prosecuted, only that they should not be.

PATHA is not satisfied with Justice Wilkinson-Smith’s reasoning that the circumstances were not exceptional enough to direct the Minister to advise the Governor-General to amend or repeal the regulations. “Such an order would potentially pit the Court against the Executive Council, and I do not think it is constitutional.” [183]

So, the question PATHA will be placing before the Court of Appeal is:

“Did the High Court err in granting relief in the form of an interim order made (a declaration that the Crown should take no steps to enforce the Regulations pending the judicial review being determined.)

A constitutional battle

This is a constitutional battle about who has jurisdiction to make and amend regulatory law. The big guns have been wheeled out – Una Jagose, Crown Law’s CEO and the Solicitor General, is to represent the government in this case.

Regulations only cease to be law if they are amended by further regulation or are overturned by Parliament or they are declared invalid (on narrow grounds) by a Judicial Review. The Court of Appeal will be asked:

• Is it lawful for the High Court to suggest that regulations not be enforced?

• Does the High Court have jurisdiction to intervene in regulations that have already been gazetted?

• Is this case so exceptional that it could set a precedent in the Court overruling the Executive Council?

There are three possible outcomes:

1. The ‘interim relief’ is declared lawful and remains in place until the outcome of the judicial review.

2. The High Court has erred in granting ‘interim relief’ that suggested a lawful regulation not be enforced.

3. The Court of Appeal rules that the circumstances are so exceptional that the High Court should have declared the regulations unlawful and quashed them.

The Court’s deliberation on this issue is important, but it is also diverting attention away from another crucial debate - the prescribing of cross sex hormones to minors.

Wrong sex hormones for minors

While the Court of Appeal is hearing arguments about puberty blockers, all eyes are averted from a potentially even bigger travesty – that there is no impediment in NZ law to the prescribing of cross sex hormones to minors.

The evidence provided by the Ministry of Health to the High Court injunction was severely lacking. Detailed findings from the Cass Review were not supplied and the judge was not alerted to the international evidence of clinical overshadowing, irreversible changes to life trajectory,and the impossibility for minors to give properly ‘informed consent’.

Furthermore, Health NZ has provided false information about cross sex hormones, stating in documents released under theOIA that “gender affirming hormone therapy is not prescribed to children.” This is simply not true.

Doctors in our network confirm that they are seeing female patients as young as 15 who have been prescribed testosterone through the Health NZ gender clinic. There are multiple cases of patients who have been given consent for double mastectomies at age 17, to be carried out as soon as they turn 18.

Age of majority

The puberty blocker regulations refer to “child or young person” without defining the ages of those patients. In a confusing jumble of NZ law and policy:

• The 1970 Age of Majority Act states adulthood begins at the age of 20.

• Oranga Tamariki classifies ‘child’ as someone under 14 and ‘young person’ as someone aged 14 to 17.

• Capacity for making independent medical decisions is routinely presumed to be 16.

The situation is so muddled that officials cannot truthfully state cross sex hormones are not being prescribed to children. In addition, data does not accurately record why the hormones were prescribed.

PATHA’s new gender affirming healthcare guidelines have no lower age limit for starting cross sex hormones. Some advocates claim that a de facto age limit is created through gentle discussion about ‘informed consent’ and fertility preservation:

Do you understand which effects are permanent (i.e. will not change even if you come off hormones in the future)?

No-one can predict how you will feel in the future but thinking about things carefully and ensuring you have good support is important.

The fact remains that PATHA has eight pages of guidelines on how to prescribe sterilising drugs to minors and does not counsel against this practice. There is nothing in law to stop a zealous clinician from deciding a minor “knows their own mind” and prescribing these drugs.

Why is it against the law for a person under 16 to marry, but not for them to “consent” to taking drugs that have irreversible side effects?

By Fern Hickson

*PATHA = Professional Association of Transgender Health Aotearoa