Neil Sands
Suggestions that Health Minister Simeon Brown was motivated by prejudice or political considerations when he restricted access to puberty blockers for children with gender dysphoria rely on hyperbole, supposition and rhetoric, the High Court was told on Wednesday.
Crown counsel Brian Dickey KC said the restrictions were prompted by safety concerns and the process Brown went through before announcing them in November was “entirely regular, routine, proper and lawful”.
Dickey was responding to evidence presented by the Professional Association for Transgender Health Aotearoa Incorporated (PATHA) to a judicial review in the High Court at Wellington challenging the ban.
PATHA’s counsel Victoria Casey KC this week told the review before Justice Dale La Hood that the decision was not based on scientific evidence, describing it as a political move to appease New Zealand First and part of an anti-woke culture war.
Dickey rejected PATHA’s claim that the ban was a targeted attack on young transgender people.
“[They’ve said] that this is not about the medicine, it’s about the identity of the users and who they are, [it will] drive those users into the shadows, and it’s shocking in its irresponsibility,” he said.
“With great respect, it’s hyperbole and rhetoric, and does not meet the actual case and its evidential base in the orthodoxy of the approach for judicial review.
“In the minister’s case, it is quite wrong and entirely unsustainable from the record, and most particularly the minister’s evidence itself, which is clear he did not act out of the gross prejudice proposed against him, nor was he supplicant to the views of others.”
Parliament’s decision, not the court’s
Dickey said Brown acted on the scientific evidence put before him, “in particular, the uncertainty of benefit and risk associated with the use of puberty blockers for this young cohort”.
He acknowledged that the Ministry of Health’s advice to Brown preferred an option that would allow doctors to continue prescribing puberty blockers for youths with gender dysphoria. But he said it was “entirely unremarkable” for a minister to weigh up evidence and prefer a different option than the one recommended in official advice.
“It is ultimately a minister that makes the decision. That’s what the statute requires,” he said. “It is ultimately the political actor that makes that, no doubt with their own assessment of benefit and risk to the public good, as this minister did.
“If he is more cautious, wearing shoes of the Minister of Health, than others… so be it.”
Dickey added: “His decision may be unpopular, but his role is not to be popular. [it is] to assess risk in terms of the Medicines Act [even if] he may have taken a more cautious approach than others.”
Dickey cited a recent case in Britain, Friends of the Earth v Secretary of State for Energy Security, which reinforced the principle that judicial review is limited to determining questions of law, not second-guessing ministerial decisions.
“The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, economic choices,” he said.
“Those decisions and those choices are ones that Parliament is entrusted to ministers and other public bodies. Choices may be matters of legitimate public debate, but they are not matters for the court to determine. The court is only concerned with the legal issues raised by the claim as to whether the [minister] has acted unlawfully.”
International concerns
Dickey said PATHA had sought to portray the “political speech” of Cabinet ministers – which included references by New Zealand First leaders to “woke ideological ferals” and “extreme lefty losers” – as an influence on Brown’s decision-making, when it was irrelevant to the discussion.
“He is unequivocal about who made that decision: it was him. And he followed correct constitutional process to get to that point,” he said.
Dickey said Brown’s approach towards puberty blockers was broadly in line with what was happening elsewhere in the world.
“We also observe international trends towards greater restriction, particularly in the United Kingdom,” he said. The trend now is toward restriction and toward concern.”
He said the UK’s Cass report had “informed” Brown’s decision, although New Zealand would set its own policy.
The Cass review, released in 2024, raised concerns a lack of research into potential long-term impacts of puberty blockers.
The UK government banned the use of puberty blockers for gender treatment in under-18s pending the outcome of a clinical trial into their effects involving 226 young people, which is due to begin later this year.
Dickey said New Zealand does not have the capacity to conduct a similar trial, but Brown had ordered health officials to keep him updated on developments regarding the use of puberty blockers in the UK and elsewhere.
He said Brown was aware his decision would have a major impact on young people and it had not been an easy one to make, prompting Justice La Hood to remark: “Nothing about this case is easy, not for the minister or anyone else.”
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