Ban on gender-affirming care tested in court

Health service executives were given 22 minutes to consider a directive that would ban gender-affirming treatments for young Queenslanders, a court has heard, but were not told until the meeting that it would count as “consultation”.

Detailed accounts of the meeting with senior health administrators were aired in Brisbane’s Supreme Court on Wednesday as the director-general of Queensland Health, Dr David Rosengren, defended a case brought by the parent of a trans child, who cannot be named for legal reasons.

Lawyers from the LGBTI Legal Service acting for the mother claim the government acted unlawfully and failed to follow proper procedures, arguing that the director-general enforced the ban at the request of cabinet and did not sufficiently consult professionals.

Stakeholders involved in treating young trans patients at public health facilities in Queensland were given a day’s notice to attend a Microsoft Teams meeting at 10am on January 28. Documents tabled in parliament later revealed the meeting only lasted 22 minutes.

Rosengren instructed his directive to be ready at 10.30am. It was published at 11.06am.

Meanwhile, Health Minister Tim Nicholls held a press conference that began at 10.06am to announce the ban – while consultation on its implications was still occurring.

Under section 48 of the Hospital and Health Boards Act 2011, the chief executive must consult with a service when developing an applicable health service directive, so service providers can discuss any concerns or objectives.

Counsel acting for Queensland Health, Jonathan Horton KC, argued the ban on hormone therapy treatments was made by “two decision makers” – the director-general and health minister – and both had power under the legislation to direct.

They accepted that “consultation was abbreviated” but said the meeting fulfilled statutory requirements.

In the director-general’s statement of reasons, obtained five months after the directive was issued, Rosengren said he considered a cabinet submission when deciding to enforce the ban.

It followed allegations that the Cairns Sexual Health Service had delivered “apparently unauthorised” services to 42 paediatric patients, 17 of whom were prescribed stage 1 or stage 2 hormone therapy for gender dysphoria.

Both parties agreed Rosengren had considered cabinet’s position on a review into gender services at Queensland’s public health facilities and the issues raised at Cairns. But at the core of the legal case is whether the director-general acted at the request of the health minister when enforcing the ban.

Neither Nicholls nor Rosengren appeared in court.

Gender-affirming care encompasses a range of treatments, including the use of puberty blockers to prevent the onset of puberty, hormone replacement therapy, mental health support, speech therapy and surgery.

While children seeking hormone therapy can still access treatment privately, it is prohibitively expensive for most families.

A group of about 20 supporters gathered outside Brisbane’s Supreme Court ahead of the hearing, with representatives condemning the government’s ban.

“The government has overstepped, they have not used any due process,” said Magandjin People’s Pride member Piper Valkyrie.

“We know for a fact that they made a captain’s call … and what we want to see is a correction of that misappropriation of the process.”

Jodie Hall from the Trans Justice Project, said the government was appealing to a small minority “of far-right people who want to bring Trump-style hate and division to Australia”.

“Tim Nicholls, Queensland’s health minister, has catastrophically overreached,” Hall said.

“This is an appalling misuse of the political system to achieve a political outcome where he should be making decisions based on health evidence.”

The health minister said an investigation by an expert psychiatrist was under way and would report back before the end of the year.

“It’s entirely appropriate that we have this pause while we get the review … to make sure that the clinical pathways that are recommended are appropriate and do no harm,” Nicholls said.

A judgment is expected to be handed down next week.

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