GUEST BLOG: Ian Powell – High Court provides an opportunity for political puberty blocker ban review
On 17 December Radio New Zealand reported the decision of the High Court to delay the ban on puberty blockers (a non-medical intervention) to treat gender dysphoria in young people pending a judicial review: Judicial review delays puberty blocker ban.
The ban on new prescriptions was intended to take effect on 19 December. However, the Court ruled in favour of the Professional Association for Transgender Healthcare Aotearoa (PATHA), which had filed an application for an urgent injunction to prevent the ban coming into effect.
PATHA’s argument was that the ban was an “illegal and unethical decision”. Instead, the use of puberty blockers should remain a decision made by doctors in consultation with affected families.
In an affidavit for PATHA, a doctor said:
…restricting access to this medication was likely to pose ethical challenges to health professionals who could no longer deliver what was “accepted to be best-practice care”.
Justice Michele Wilkinson-Smith issues injunction over ban
While Justice Michele Wilkinson-Smith said it was not possible to make an order directing the Health Minister to ask the Governor General to amend or appeal the regulations, as PATHA had sought, she went on to say:
However, in this judgement I make a declaration that the Crown should take no steps to enforce the regulations pending the judicial review being determined.
There was a reasonable argument that the regulations were “unlawful in a judicial review sense”.
“There is also no evidence of a particular need to act urgently to prevent new prescriptions because of some immediate risk to physical health if young people commence treatment.”
The potential for a negative effect on mental health from banning them was “a far more immediate concern”, she said.
Furthermore, the timing of the regulations, coupled with the lack of notice that a ban was contemplated “had the effect of taking PATHA and the whole transgender community by surprise”.
“Standing back and looking at the overall justice of the situation, I am persuaded that a delay in enforcement of the regulations is the best option now available.
“The judicial review should be heard with all possible urgency.”
Background
In November 2024 the Ministry of Health released its long awaited position statement, accompanied by an evidence brief, on the safety and long-term impacts of puberty blockers when used in the context of gender-affirming care.
I discussed this in an earlier post (7 January 2025): Welcome position statement but beware derailing transphobia.
Puberty blockers reviewed by Ministry of Health
The Ministry’s review concluded that the evidence about the impact of puberty blockers on clinical and mental health and wellbeing outcomes is scarce and what evidence there is “largely of poor quality.”
A big factor behind this situation was that studies “…generally rely on small, localised cohorts, making it difficult to extrapolate to other, larger cohorts.” In other words, the numbers are far too small for large, randomised studies.
The Ministry went on to say:
Given the dearth and poor quality of evidence, and New Zealand-specific evidence, there is an urgent need for high-quality, longitudinal data and research to help us understand the specific needs of gender-dysphoric adolescents in New Zealand.
In my post I welcomed the Ministry’s statement. It had advised that puberty blockers should only be prescribed by a clinician experienced in gender affirming care, and supported by an interprofessional team including mental health support.
Ministry advice consistent with Hippocratic Oath
It was consistent with my advocacy for robust medically based guidelines consistent with the Hippocratic Oath (‘first do no harm’) for the prescription of puberty blockers to help young people suffering gender dysphoria.
But I also stressed the importance of the decision-making process not being derailed by the bigotry of transphobia and optimistically called on Health Minister Simeon Brown to take note.
Ban political, not clinical
Unfortunately optimism didn’t eventuate. Transphobia prevailed leading to what should have been a clinical decision becoming a political one instead. This was pretty much publicly acknowledged by NZ First ministers Winston Peters and Casey Costello at the time.
I discussed this in another post (6 December): Ban a political rather than clinical decision.
Health Minister Simeon Brown announced the ban
Health Minister Brown announced the ban on 19 November to be implemented exactly a month later.
It was to apply to new young patients being medically prescribed puberty blockers in order to delay puberty in cases of gender dysphoria or incongruence.
Consequently it would not apply to non-trans young people experiencing things like early onset puberty, endometriosis, or prostate cancer.
The ban was intended to be for at least five years (probably longer). A narrowly focussed clinical trial on puberty blockers in the United Kingdom is scheduled to be completed in 2031.
I argued that this ban was a blatant interference in clinical decision-making. Further:
These young people are patients. Like all other patients they are entitled to have clinical decisions made by clinical experts.
Like all other patients they should not have their clinical decisions made by politics. In this case the politics are driven by bigoted transphobia.
Like all other patients they are entitled to be treated in accordance with the Hippocratic Oath. Both the Cass Review and Ministry of Health’s advice were consistent with this Oath. Unfortunately, however, these young patients are being denied the Oath’s first principle of ‘first do no harm’.
Cabinet overrides Health Ministry advice
In making its decision to implement a ban on new puberty blocker prescriptions Cabinet rejected the advice of Ministry of Health officials.
Good investigative reporting by Newsroom’s Marc Daalder
This was revealed following the release of cabinet papers in late December. They were discussed by Newsroom investigative reporter Marc Daalder (22 December): Health Ministry advice rejected.
In a nutshell the Ministry’s position was that while there were no good options its “…officials effectively said there were no good options but the status quo was the least bad one.”
Consequently “…doctors should make the lack of evidence on both counts clear to patients when discussing whether to prescribe the treatment.”
Daadler reported that the Ministry had earlier also:
…recommended investigating whether firmer regulation was needed. Minister of Mental Health Matt Doocey and the then-health minister Shane Reti told Cabinet they supported regulating to restrict new prescriptions.
A ban, the Ministry advised, would have “… a high risk of adverse health outcomes … due to possible negative impacts on mental health, despite medical and psycho-social support through the alternative services”.
Further, advised the Ministry:
A child impact assessment which accompanied the regulatory advice noted “policy options which restrict access to puberty blockers beyond the status quo would likely have negative impacts on young people with gender-related health needs. The assessment therefore does not support these options from a child-centred perspective.”
Government: take the opportunity to reconsider ban
The High Court injunction and the realistic possibility of a judicial review is both a political setback and a political opportunity.
The latter is the opportunity to learn from the experience and correct its decision by making it on clinical rather than political grounds; in other words, respect the Hippocratic Oath of ‘first do know harm’.
Prime Minister Luxon needs his cabinet to put clinical expertise before politics
Simeon Brown as health minister is not the only significant player in this decision-making process. The transphobic NZ First influence is strong. Furthermore, transphobia is not confined within cabinet to NZ First.
The Ministry of Health correctly noted in its above-mentioned position paper (November 2024) the difficulty of getting reliable quantitative evidence when the number of young people using puberty blockers for gender dysphoria are so small.
Randomised studies are impractical. However, clinical experts can provide qualitative evidence that can compensate. Small numbers also provide an upside. Diagnosis, treatment and monitoring are more manageable.
Cabinet should listen to Dr Collin Tukuitonga’s expertise (along with many other clinical experts) and ‘first do no harm’
I can do no better than I did in my above-mentioned previous post discussing the ban than conclude by quoting the President of the College of Public Health Medicine, Sir Collin Tukuitonga:
For the Minister to cite a ‘precautionary approach’ as the basis for the ban is disingenuous and ironic… health experts have been crying out for the Government to adopt a precautionary approach to address a range of public health challenges, but such calls have gone unheeded, even when there is robust evidence to guide policy.
Will the Government take the opportunity to make its puberty blockers ban decision on clinical instead of political grounds? Will it ‘first do no harm’? I’m hoping these are not rhetorical questions!
Ian Powell was Executive Director of the Association of Salaried Medical Specialists, the professional union representing senior doctors and dentists in New Zealand, for over 30 years, until December 2019. He is now a health systems, labour market, and political commentator living in the small river estuary community of Otaihanga (the place by the tide). First published at Otaihanga Second Opinion.
Telling mentally ill, confused children that they might in fact have been born in the wrong body, and then encouraging them to take potent chemicals which in almost all cases, lock them into a lifetime of irreversible medicalisation and capture by big pharma, doesn’t sound like a very good idea imho
Justin R – Yes, agreed…also PATHA pretends that various Medical reviews that goes against their views never happened, such as the Cass Review in the UK.
The previous government appointed an activist body (PATHA) to draw up healthcare guidelines for gender dysphoric kids – one of their most criminally stupid decisions.
And just how many of these kids do you know that you can make these judgements about them? I suspect none.
You don’t need to know a single body dysmorphic child to know that ‘gender affirming’ care is incredibly dark and arguably evil. I don’t know any anorexic people but I still know that agreeing with their perception of being fat would be nuts. How about we tell confused kids they’re perfect just as they are, and they’re loved just as they are. They don’t need to fit into any box and they’re free to express themselves as they please- but we’re not going to pump them to the gills full of life altering pharmaceuticals or even entertain the idea that cutting bits off could be a good option.
“You don’t need to know a single body dysmorphic child to know that ‘gender affirming’ care is incredibly dark and arguably evil.”
Well, yes you do in fact. I know and have known several and they all realised quite early on in their lives what was “wrong” with them. And they don’t get “pumped” full of chemicals without a lot of medical advice.
Calling people confused about their gender, mentally ill, probably doesn’t help either. I assume you say that on the basis that they think they might one thing when they were born another, ignores the facts? You could say Brown is mentally ill for his beliefs being based on faith, totally devoid of facts.
I’m not using mental illness disparagingly. Its just a descriptor. Body dysmorphia is not a physical condition, it’s an illness of the mind.
While I agree with you that it is not fair to call gender confused people mentally ill I do find it difficult to accept all their claims when they ignore obvious real evidence. The idea that chemical use can solve health problems has some merit although preventing problems by living a sensible lifestyle should also be encouraged. Since we live in a world where feelings are considered more important than evidence I don’t foresee any easy solution to these issues.
There are several problems with the trans affirming position. The first is that a pre-maturity adolescent with no sexual experience is not well equipped to make irreversible decisions of that kind, and blocking puberty is not readily reversible.
The legal position is quite clear – a child is not competent to make such decisions, and reputable medical professionals will not readily shoulder that responsibility.
The Cass review showed that no positive outcome is to be anticipated from transitioning adolescents, for whom puberty offers a better probability of successfully dealing with dysphoria. A very modest positive effect size occurs with transitioning adults, though long term data is scarce, and transition regret is barely acknowledged, much less studied systematically.
The argument Ian Powell advances, that transition is medical, is fundamentally untrue. Dysphoria is a psychological condition, not a medical one. Medical history is rife with unfortunate examples of medicalizing psychological conditions, from hysterectomies to treat ‘hysteria’, though lobotomies, ECT (shock treatment), to deep sleep ‘therapy’. NZ medical practice under the barbarous cuts of this useless regime is much reduced, but surely not so diminished as to be ready to embrace these errors.
Just another fuck up by Brown. When religion and politics mix as Brown has done, it only ends one way, in disaster. His anti abortion stance through his religious beliefs is hypocritical.
He’s making judgements about political and medical decisions – not about the kids.