Gender dysphoria dilemma for judge

A family law judge has called on the wisdom of an Italian physician in deciding a difficult custody case involving claims of gender dysphoria.

In the Federal Circuit and Family Court of Australia (Division 1) in Victoria this month, Justice Strum considered competing applications for parenting orders in relation to “Devin”, a biologically male child born in 2013.

The mother contended that the child was gender dysphoric or incongruent; the father, supported by the Independent Children’s Lawyer, contended that the child was gender exploratory, expansive or fluid.

In granting sole parental responsibility to the father, Justice Strum quoted Maria Montessori from 1948: “A child has a body which grows and a mind which develops. Both his physiological and psychic development have a single source, life. We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations.”

In his 134-page judgment delivered on 3 April, after a 20-day hearing, he said intertwined with the issue of parental responsibility was that of medical treatment for the child, specifically puberty-blocking medication.

“The Independent Children’s Lawyer submits, in her written closing submissions, and I agree, that questions of parental approach to, and responsibility for, decision-making with respect to the child’s gender identity are central to, and will be largely determinative of, both the court’s decision regarding allocation of parental responsibility for decision-making with respect to medical decisions, as well as with whom the child should live and how the child should spend time with the other parent,” he said.

Justice Strum said he had repeatedly reminded all involved that the matter was about the best interests of the child, not the cause of transgender people, but his reminders “occasionally seemed to fall on deaf ears”.

He was critical of an associate professor who was called as an expert witness for the mother’s case but who engaged in advocacy when giving evidence, and of references by both parties to the Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic), which did not apply.

“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 (Family Law Act) of what is in a child’s best interests,” he said.

The parents separated when Devin was almost four, and in 2018 final parenting orders provided for equal shared responsibility. The mother instituted the current proceedings a year later.

Justice Strum described the tactics the mother used to reinforce her belief the child was gender dysphoric, such as having the child wear gender-affirming underwear.

“She has unilaterally, and single-mindedly, focused upon the child’s gender issues, without any real consideration of whether they may be attributable to a factor or cause other than, or combined with, gender incongruence/dysphoria…” he said.

“On the evidence, I do not accept that the father is, or has been, unsupportive of the child’s gender identity. His concerns, which I find are well founded, regard the exclusion by the mother and her experts of any other possible explanations for the child’s presentation, and the proposed/probable administration of any medical treatment for the child, presently of Stage 1 puberty blockers…

“I find the father to be a considered, attuned and sensitive parent, well able to promote the emotional and physical safety, as well as the health and psychological well-being of the child.

“Unlike the mother, who is convinced that the child is a transgender child, the father is more open-minded and does not seek to pigeon-hole the child in any way.

“Rather, he wishes to let the child be a child and, with the passage of time and maturation, to grow into whatever the child is or wishes to be – whether transgender, cisgender or otherwise.

“His evidence did not convey a sense of an ideological approach; rather, that of a loving parent who is content for the child to engage in exploration before any potentially dangerous steps are undertaken later in life, the implications of which are presently beyond the child’s comprehension.”

Justice Strum said in the father’s primary care, Devin would receive appropriate support in relation to the child’s gender expression and questions, with encouragement for open conversations to discuss thoughts and feelings, along with appropriate professional support.

“In the mother’s care, the child would continue to live a relatively socially and geographically isolated existence, in which the child’s gender identity will not be able to be freely and genuinely explored and addressed, as opposed to channelled through one-directional gender affirming treatment, including medical treatment,” he said.

The father, with help from his partner and professionals, “will be able to deal appropriately, sensitively, thoughtfully and broad-mindedly with any difficulties the child may encounter”, Justice Strum said.

He ultimately decided that the father “was the parent most capable of supporting and protecting the child, by letting the child simply be a child”.

“I accept the submission by the Independent Children’s Lawyer, and find, that if the mother were to have sole parental responsibility for decisions in relation to the child’s gender identity, and to live with her … this would be highly likely to result in the child receiving potentially life-altering and damaging medical intervention for which there may not be a proper underlying basis,” he said.

He concluded with a reminder that the case was about a child, not the cause of transgender people.

“As this child grows, develops and matures, and explores and experiences life, the child might, with the related benefits of the passage of time and the acquisition of balanced understanding, come to identify as a transgender female and might elect to undergo some form of medical treatment, to affirm and/or align with that identity,” he said.

“But, similarly, with those benefits, the child might not do so, and for a variety of reasons.

“At this stage in the child’s life, all options should be left open, without any unacceptable risk of harm to the child.”