Associate Professor Noam Peleg
Recent weeks have seen a wave of attacks against the rights of trans and gender diverse people, with, for example, the UK Supreme Court deciding that the terms “woman” and “sex” in the Equality Act refer only to a woman assigned female sex at birth and to sex assigned at birth. This decision comes after the publication of a 2024 review into the National Health Service (NHS) protocols of treating children with gender dysphoria that recommends to move away from hormone treatment of children to a ‘more holistic’ approach. Or in other words, to delay – and de facto almost eliminate – the ability of children to a physical transition.
In the United States, one of the first Executive Orders issued by Donald Trump when he took office in January 2025 was to ban and halt funding for treatment for trans children. The Department of Health and Human Services was quick to follow in line and on 1 May 2025 it released a review on that similarly to the UK, called to move from medical treatment and gender assignment to therapeutic interventions. This recommendation contradicts the position of the American Academy of Paediatrics and the American Psychological Association.
In Brazil, the Federal Council of Medicine decided in April to ban the use of hormone blockers for gender transition in children, and raises the minimum age from 18 to 21 for undergoing gender transition surgeries that have a sterilising effect. In Australia, the Federal Government ordered a review of treatment guidelines for trans and gender diverse children in January this year. At the same time, the Queensland Government ordered a stop to all hormone treatments for new trans children under the age of 18 while conducting a review into the treatment protocols of stage one and two hormone therapies.
And in April, the Family Court published a decision in the case of Re Devin – a dispute between two parents regarding their child’s gender identity and care, which continues this attack on the idea of gender in general, and its relevancy to children in particular. The case raises serious issues, spanning from evidence law to family law. But of particular concern for children is what this case is doing regarding gender denial and reproduction anxiety; as well as what it says about children’s agency, participation rights and identify.
The case of Re Devin
Devin is a 12-year-old child. Their two parents had separated when Devin – whose name has been anonymised – was nearly four years old, and at the time the case was heard, Devin was living with their mother and spending time with their father on alternate weekends. The parents have made competing applications for parenting orders, including disputes over parental responsibility, where Devin should live, and time spent with each parent. But the core issue was whether Devin will be able to start stage 1 hormone treatment for their gender dysphoria, as they and their mother wanted, against the father’s strong objection. Judge Streum provided a long and detailed judgment. It goes into lengthy quotes of the various experts who gave evidence before the Court, as well as the evidence given by the parents and the submissions from the Independent Children’s Lawyer.
The mother was described as having a close relationship with Devin, but also demonstrating some controlling behaviours. She was supportive of Devin's exploration of gender identity, having taken them to a support group for transgender children and advocating for their access to puberty blockers. The mother appeared to be involved in the transgender community in her place of living, and tended to frame interactions with Devin’s father through the lens of him being unsupportive of this. The father, on the other hand, while being described by the Court as accepting of Devin’s gender expression, was against medical interventions. He further expressed concern about the influence of the mother and the transgender community on Devin and pleaded the Court to enable him to raise Devin free from this influence. The Court went to great length to describe the father as being warm and supportive, and keen to provide Devin with support and opportunities in life. Devin unquiveringly wanted to continue living with their mother and to start phase 1 of treatment for their gender dysphoria.
The Court decided to give the father sole parental responsibility over Devin, which gives the father the ultimate legal power to make decisions about Devin’s life. While the father is expected to notify the mother about ‘major long term decisions’, the decisions will be his, and his alone. The Court further forbids Devin from continuing to attend a ‘psychologist or paediatrician at the Children’s Hospital Gender Service’ and instead orders the father to obtain a referral so the child can have an ‘assessment, and any treatment, if required, by a paediatrician and/or child and adolescent psychologist or psychiatrist’.
Gender denial and reproduction anxiety
Devin has been diagnosed by a Children’s Hospital Gender Clinic as having gender dysphoria or incongruence. The medical recommendation that was presented to the Court was that Devin be administered stage 1 puberty blocking medication, which is used to delay the changes of puberty. This is part of a ‘transition’ protocol that should end with an alignment between Devin’s gender identity and body. The father disagrees with the diagnosis and subsequent course of treatment, and instead contends that Devin is gender exploratory, expansive, or fluid.
Once a child starts to take puberty blockers as part of stage 1 of treatment and considering their stage of puberty, it’s very likely that they will produce no sperm. Therefore, it means that the child will not be able to reproduce genetically, or in other words, have children who are genetically connected to them. This, in the Court’s view, contradicts the child’s best interests and was one of the main reasons that led the Court to forbid it.
This understanding of the best interests rests on an implicit assumption that the child would like to become a genetic parent in the future, or that this is an option that should be preserved for the child at the expense of enabling them to fulfill their right to development as they understand it, and as supported by their mother and doctors. The position that the Court adopts essentialises parenting and genetics, overlooking and downgrading other forms of becoming a parent, like adoption or using genetic material donation, all common and equally valued modes of becoming parents. When a Family Court judge applies this outdated view, they are not only operating against the spirit of the Family Law Act, which enables the establishment of legal parenting for non genetic parents, but also against the rights and interests of intended parents, whether straight or from the LGBTQI+ community, deeming them to be second-class parents.
Preventing Devin from having stage 1 hormones also reflects transition anxiety, where the Court is concerned with enabling a child to move from one gender to the other. At the same time, the Court is unwilling to respect the anxiety of Devin while endorsing and facilitating a different, unwelcomed transition: an order for Devin to transition from the care of their mother, to being in the care of their father and denying of treatment. The Court transitioning Devin into the care of a father, who never raised Devin full time, against whom the mother has made numerous allegations of family violence, and who shares the Court’s view that gender isn’t an issue relevant to Devin’s life and identity, or that Devin should, or could, deal with at this stage of their life.
Participation and best interests
The judgment begins with a quote from Maria Montessori, an Italian educator and the founder of the ‘Montessori’ approach to education, which claims that children learn best when they are free to explore and interact with their environment. The quote says that "We should not corrupt or suffocate his mysterious potentialities but wait for their successive manifestations". Opening a judgment with this statement demonstrates a unique combination of anachronism and paternalism. The fact that the judge added a caveat saying that "I do not rely upon it in any way in my determination of this case" doesn’t mitigate the fact that the judgment is clouded by outdated approaches to developmental psychology and childhood studies. It ignores children’s agency and rights. It overlooks decades of research about and with children, showing awareness, interests and views about their own development, including their gender development.
This approach mystifies child development, conceptualising children as naïve, innocent, free from desires or emotions, whose only role in life is to grow up and become adults. As the Court says, children have “bodies which grow and minds which develop, such that their mysterious potentialities, and the successive manifestations thereof, should be awaited”. By quoting this, the Court rejects the very idea that children can have a gender identity, that children develop a gender identity during childhood, or that this identity might be different from their genitalia. This approach fails to engage with a well-established body of work in psychology and related fields concerning how and when children develop their identity, and the different stages of identity formation. It further overlooks the rights of children, as articulated under the UN Convention on the Rights of the Child, which Australia has signed and ratified in 1990. It overlooked children’s unique right to development, which includes their right to participate in their own process of development, and the separate, though interrelated, right to develop and define their own identity.
The Court centres its decision on the best interests of the child, as the Family Law Act requires. One of the factors that the Court can take into account when assessing what will be in Devin’s best interests is the child’s own views about the matter, considering ‘their age and understanding’ (the views of the child are now considered to be a mandatory consideration, following a reform to the Family Law Act that came into force in 2024, but wasn’t applicable in this case). Children of Devin’s age can have a clear understanding of their medical condition, and can articulate preferences about their lives in the present and in the future. According to the judgment, Devin has this level of understanding too. But the judge rejects the premise of Devin’s views of their own lives, refusing to accept the fact that a 12-year-old child thinks of, and forms an opinion about, their gender, and willing to take active steps to mitigate their gender dysphoria.
The Court noted that Devin has consistently expressed their wishes to undergo the suggested hormone treatment, that they have been getting support for their gender dysphoria for years, but nonetheless decided that given Devin’s “nature (namely, the child's relatively young age) and the child's nurture (namely, the mother's gender affirming approach to the child's gender identity, which identity I have found to have been substantially influenced in, and by, the mother's care)” Devin’s views should be given “no weight regarding the child's expressed desire for puberty blockers”. This conclusion rests on a paternalistic approach to child participation. It is because Devin’s views didn’t reinforce what the judge wanted to hear, he therefore decided to give Devin’s views no weight.
Suggesting that the views of a child, who has been seeing therapists, doctors and participating in multiple support sessions, are 100% irrelevant defies the spirit of both the UN Convention on the Rights of the Child, and of the Family Law Act. Further, saying that it’s the mother who speaks out of the child’s mouth, and essentially that the child’s views are not authentic is both paternalistic to Devin and the mother, and ignores the fact that children often rely on their parents to articulate their views. So while the judge ticked the box and said that the child’s views has been heard, giving it zero weight demonstrates the judgment’s inherent paternalism, which is extended to both Devin and their mother (with some misogyny thrown into the mix).
Conclusion
This case in not an easy one, and the Court was asked to decide between two opposite options, as presented by Devin’s parents. The judgment is a significant step backward after a decade of gradual judicial recognition in the gender identity and capacity of trans children and young adults (in the cases of Re Jamie from 2013 and Re Kelvin from 2017).
Rejecting the idea that children as old as 12 have no relevant sense of self, and sidelining Devin’s own preferences about their identity and body is consistent with, and an example of, the Court’s rejection of the idea that children have an agency in their own life. The judge’s statement that “ideology has no place in the application by Courts of the Law” (paragraph 24) is a lipstick on a pig, as the entire text is clouded by an anti-gender and anti-children’s rights ideology.
Noam Peleg is an Associate of the Australian Human Rights Institute and an Associate Professor and Director – Equity, Diversity and Inclusion at the Faculty of Law and Justice, UNSW Sydney.