The duty of care to gay, lesbian and transgender students
As it is both foreseeable and probable that gay, lesbian and transgender students are going to be harassed, bullied and coerced at school with resultant serious consequences, schools do have a duty to take reasonable steps to minimise the risk of these things occurring. David Ford is speaking at a webinar on 3 June 2025 on this topic (see details below) and will explain what some of those steps might be.
Beware of giving medical advice!
In this article, we want to give a warning to schools not to get too involved in medical treatment. There have been differences of opinion over the years among medical specialists and psychologists as to the best way of treating young people with gender dysphoria. There are those who take a blanket approach of favouring affirmation followed by pubertal suppression using drugs from as early as 11 years old. Typically, that approach leads to young people taking cross-sex hormones at about 16 in preparation for possible sex-reassignment or gender confirmation surgery as an older adolescent or adult. At the same time, there are practitioners who believe that their ethical and professional duty is to focus on the person before them and to treat that person based on their specific needs. Also, more recently, with the benefit of more time to observe the effects of treatment such as pubertal suppression, several studies have shown the dangers of this treatment.
The 2024 report of the Review chaired by Dr Hilary Cass in the UK canvasses the research. It was commissioned by NHS England to make recommendations on how to ensure that children and young people who were questioning their gender identity or experiencing gender dysphoria received a high standard of care that met their needs, was safe and effective. The report sets out the recommended clinical approach to care and support these children and young people should expect, and the interventions that should be available.
Since the Cass Report, the Queensland Government has commissioned an independent review of the evidence base and advice regarding policy options for the use of puberty suppression (Stage 1) and gender affirming (Stage 2) hormones for children and adolescents with gender dysphoria in Queensland’s public hospital system. The advice is to be based on the available literature and evidence base, and consider the short, medium and longer-term impacts of these treatments. In the meantime, the Queensland Government has paused the intake of new patients under the age of 18 years for Stage 1 and Stage 2 hormone therapy in Queensland Health facilities.
Professor Partick Parkinson also explores the research in a helpful article published on 6 October 2024. After observing how much court time is being taken up with contested family court proceedings over parental consent for puberty blockers and cross-sex hormones in minors, he concludes:
Parents will continue to argue strongly about the wisdom of the proposed treatments. The courts will face the dilemma that the children who are the subject of proceedings have already adopted an opposite sex identification and name, and have been encouraged by a parent and clinicians to believe that this identity is innate and likely to be permanent. They may also have been strongly encouraged in this identification by their school and have found a community of support on the basis that they are ‘trans’. The best interests of the child in the long-term may require going against their strongly held wishes and beliefs in the short-term, or at least requiring them to wait until they are adults before making irreversible decisions for themselves. [My emphasis]
Schools should not encourage students who are questioning their gender or their parents to undertake “gender-affirming treatment”. School staff are not qualified to know what treatment, if any, such children should pursue. Of course, schools ought to keep an eye on the research. While staff are never going to be experts in the field, they must not be found encouraging students and their families to pursue a course of treatment that might lead to physical or mental harm. It is sensible to recommend to parents that they obtain expert medical advice and permissible to mention that there are varying views in this area and that they may wish to obtain at least two opinions.
An example of one of the cases Prof Parkinson had in mind is Re: Devin [2025] FedCFamC1F 211 (3 April 2025). It ran for about 20 hearing days throughout 2024. It was about Devin, a biologically male child, born in 2013. Whether the child’s biological sex accords with the child’s gender or gender identity was central to the case. The mother said that the child was gender dysphoric or incongruent; the father, supported by the Independent Children’s Lawyer, said that the child was gender exploratory, expansive or fluid. Each parent sought orders for sole parental responsibility which would give the right to decide if the child should have Stage 1 puberty blocking medication. The mother was in favour of such treatment. The father was against it.
In the judgment, the judge pointed out several times that the Court’s role under the Family Law Act 1975 (Cth) was to determine what was in the child’s best interests “and not the cause of transgender people” saying:
I made it clear then, and not dissimilarly again at trial, 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.
The Court was critical of some of the “expert” witnesses who described themselves as advocates for trans rights and trans people.
The Court also noted that the evidence about the safety of puberty blockers that was accepted in cases 10 years ago (for example, Re Jamie (2013)) was irrelevant when the evidence on the topic was different today. In relation to current research, the Court found the Cass Report helpful.
The Court had to consider what were the risks (if any) of gender affirming treatment, in particular, puberty blockers and whether there were any reasonable alternative treatment approaches. The Court accepted that the evidence established that:
(a) the “risks posed by medical (and surgical) gender affirming treatment include risks to fertility, sexual function, bone health, brain development, cardiovascular function and carcinogenesis, as well as the risks of being a lifelong medical patient and of later regret.”
(b) a risk of using puberty blockers, because of findings that over 95 per cent of children who do so progress to cross-sex hormones, is that puberty blockers are not a “pause button” that merely allows a child more time to consider their options but rather they may “lock-in” a child to ongoing gender dysphoria and progression to cross-sex hormones, by impeding the usual progress of sexual orientation and gender development;
(c) puberty blockers, especially when given at the earliest stages of puberty, followed by oestrogen/cross-sex hormones lead to infertility and sexual dysfunction with no capacity for fertility preservation (because of lack of mature sperm production) and the extent of later reversibility of this infertility being unknown;
(d) the lack of genital growth caused by puberty blockers (followed by oestrogen) means a male child using them will have a “micro-penis” because the penis will not develop with puberty, it having been blocked;
(e) there is a risk of later regret/de-transition.
There is much more in this judgment than can be explored here. It is suffice to say that the case reinforces our warning to schools not to encourage children or their parents to have their children undertake a particular course of treatment if the children are questioning their gender identity. If you are dealing with trans students at your school, please contact David Ford or Stephanie McLuckie.