Neil Sands
Health Minister Simeon Brown has displayed a “lack of candour” about the decision to ban puberty blockers for children with gender dysphoria, claiming it was made on medical grounds when it was actually part of a political deal, the High Court was told on Tuesday.
The Professional Association for Transgender Health Aotearoa Incorporated (PATHA) is challenging the ban via a judicial review in Wellington High Court, arguing it breaches the New Zealand Bill of Rights and overrides clinical best practice.
On day two of the three-day hearing, PATHA counsel Victoria Casey KC questioned Brown’s assertion that the ban was imposed as a precautionary measure, based on best available evidence, because of uncertainty about the long-term effects of the treatment.
She told Justice Dale La Hood that a Ministry of Health position paper had not supported a ban, rather it recommended continuing ongoing prescription of puberty blockers for gender dysphoria.
“The expert advice says the evidence does not warrant this, and if the minister pretends that it does, that’s in defiance of an incontrovertible fact,” Casey said.
She said this meant that Brown has overstepped his powers, arguing that the Medicines Act “doesn’t allow regulations based on the minister’s own reckon of what the science is”.
Casey also alleged inconsistencies in Brown’s accounts of how he reached the decision, raising doubts about whether it was made lawfully.
In one affidavit, the minister said he made the decision after considering expert evidence, in another account he said took four options to Cabinet, which made a collective decision to impose the restriction.
‘Political deal’
Casey said the distinction was important because it meant Brown had abdicated his decision-making to a Cabinet, which includes New Zealand First ministers Winston Peters and Casey Costello, both outspoken critics of trans rights.
“It was a political deal with the New Zealand First and the minister [Brown] is pretending that it had nothing to do with them,” she said, arguing that the political element undermines the rationality and purpose behind the decision to ban.
“If the minister was to say to us in his evidence, ‘I was really heavily influenced by Casey Castello and Winston Peters and their views, that formed the basis of my decision – trans people are not real, no child is born in the wrong body, this is child abuse – that would take us to improper purpose,” she said.
“In a sense, PATHA’s core argument is that’s clearly what’s happened. The minister is saying, ‘Oh well, it’s all about the safety of the children’, but it isn’t.”
Casey told Justice La Hood that when considering the judicial review: “You probably do have to deal with his [Brown’s] lack of candour as to why he reached this decision.”
She said it made no sense to prohibit puberty blockers due to possible health risks, while experts were saying it was a certainty that the ban would cause significant harm to children with gender dysmorphia.
“Whatever the concerns are about unknown, maybe long-term risks… you put that against what we know is going to happen with this ban, which is serious adverse health consequences for this cohort, up to and including suicide – that’s the irrationality.
“To say ‘I have an unknown that I’m worried about, so I will do this… in defiance of the absolutely clear advice that it will cause serious harm.”
The ban, which was announced in November, is on hold pending the outcome of the judicial review. The hearing is continuing.
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