Neil Sands
A ban on puberty blockers was politically driven by New Zealand First based on “completely misinformed” evidence and with no consultation involving medical experts, the Court of Appeal was told on Monday.
The ban on new puberty blocker prescriptions for children with gender dysphoria was announced in November but the High Court temporarily halted its implementation a month later after legal action by the Professional Association for Transgender Health Aotearoa (PATHA).
PATHA returned to court on Monday, arguing that the High Court’s interim direction did not go far enough and was based on a flawed reading of the constitutional conventions surrounding judicial intervention in the law-making process.
However, counsel for the Crown, Austin Powell, said the courts needed to be mindful of judicial independence in dealings with the executive.
“There’s a line that cannot be crossed, and that is what would be crossed if the court actually prescribed what should happen to the law,” he said.
A three-person Court of Appeal panel chaired by Justice Christine French viewed the matter as so important that it cut short the court’s holiday period closure by a week to hear the matter.
‘War on woke’
Counsel for PATHA, Victoria Casey KC, said the first her client and the medical community heard about the ban was via a November 19 media release on the NZ First website issued by Associate Health Minister Casey Costello.
Casey Costello
Costello’s statement characterised the decision as a victory in the “war on woke”, saying: “Puberty blockers cause irreversible harm to bone density, fertility, brain development and future sexual function.”
With the ban due to take effect on December 19, PATHA went to the High Court, urgently seeking judicial review and an interim order that the Health Minister [Simeon Brown] “take all necessary steps to suspend the regulations pending further order of the court”.
Justice Michele Wilkinson-Smith granted the request for judicial review, which will take place on May 6, but declined to instruct the Health Minister on what to do regarding the regulations, saying such a move would be “extraordinary”.
“I cannot make an order directing 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 that is constitutionally inappropriate,” she said.
Instead, Wilkinson-Smith declared that the Crown should take no action to enforce the ban before the judicial review takes place.
Casey told the Court of Appeal that Wilkinson-Smith’s interim measure was ineffective because the ban on new prescriptions for puberty blocker medicines technically remains in place, even if it is not being enforced pending the judicial review.
She said this means that doctors who prescribe them could face complaints that they have breached their ethical responsibilities.
“It’s not a remote, fanciful proposition that they will face consequences,” she said, adding that even if the Crown did not initiate such complaints, anti-trans activists were likely to lodge them in a private capacity.
‘Gazumped the court’
Casey said the puberty blocker ban was part of a political campaign promoted by New Zealand First.
“It was New Zealand First who pushed it. They got it over the line and they did so for these reasons, which are completely unacceptable reasons and completely misinformed on the facts.”
She added: “The ‘common sense’ campaign of the New Zealand First Party against the trans community is not a proper purpose for the passing of regulations under the Medicines Act.”
Casey suggested the lack of consultation around the ban was part of a strategy to minimise judicial scrutiny of the relevant regulations, which she said should be part of the court’s role.
“It’s very apparent that there was high confidentiality around these regulations, which has stolen a march… not just on the appellant (PATHA) or the affected young people. It’s gazumped the court. That’s not a satisfactory position to be in.”
Powell urged caution, saying: “If the court is seen to be directing the executive to make a law, repeal a law or amend a law, that is treading very closely to the judicial function itself…
“In the exercise of the judicial function, the court’s primary concern is to ensure its independence, because that is vital to ensure its independence from the executive, its independence from the rest of the [law-making] process.”
The Court of Appeal panel reserved its decision, with French saying it would deliver a ruling “as soon as we possibly can”.
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