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THE FLAWED LOGIC & EVIDENCE WITH RESPECT TO 'BEST INTERESTS' AS APPLIED TO GENDER TRANSITIONING OF CHILDREN & ADOLESCENTS

The argument that it is in 'the best interests of the child' to undergo gender transitioning is not only ethically but also medically flawed.
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   1 THE FLAWED LOGIC & EVIDENCE WITH RESPECT TO ÔBEST INTERESTSÕ AS APPLIED TO GENDER TRANSITIONING OF CHILDREN & ADOLESCENTS A request for support for a national inquiry into gender dysphoria and gender transitioning was sent out to all ChildrenÕs Commissioners and Guardians across Australia, including the National ChildrenÕs Commissioner, on the 30 th  Anniversary of the United Nations Declaration on the Rights of the Child (UNCROC), 20 November 2019. One month later, two jurisdictions, Western Australia and Victoria, have declared that they do not support the request for a national inquiry. A typical response was as follows - ÔThe Commissioner has noted your concerns, however will not be providing support for  your submission to the Federal Government for a national inquiry into gender dysphoria and transitioning among children and adolescents.Õ No jurisdictions responded in detail, except for the ChildrenÕs Commissioner in Tasmania - ÔI wish to make it very clear that I do not support the call, as you have described it, for the establishment of a national inquiry into gender dysphoria and transitioning among children and adolescents. I am in favour of legislative and other reform processes which would promote the best interests and wellbeing of children and young people who seek assistance with affirming their gender identity, including through access to medical treatment.Õ Leanne McLean, Commissioner for Children & Young People (Tas). While there is no consensus in either law or science as to what the expression Ôbest interests of the childÕ actually means 1  , in her submission to the Tasmania Law Reform Institute on 3 September 2019, the Tasmanian ChildrenÕs Commissioner said, Ô Decision-making is guided by what is in the best interests of the child which includes  giving due consideration to the views of the child having regard to their age and maturity. I think it is important to note the below comment of the Committee on the Rights of the Child in relation to best interests Ð 22. The right of the child to have his or her best interests taken into account as a primary consideration is a substantive right, an interpretative legal principle and a rule of procedure, and it applies to children both as individuals and as a group. All measures of implementation of the Convention, including legislation, policies, economic and social planning, decision-making and budgetary decisions, should follow procedures that ensure that the best interests of the child, including adolescents, are taken as a primary consideration in all actions concerning them. In the light of its general comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, the Committee stresses that, when determining best interests, the childÕs views should be taken into account, consistent with their evolving capacities and taking into consideration the childÕs characteristics. States parties need to ensure that appropriate weight is afforded to the views of adolescents as they acquire understanding and maturity.Õ   2 There is a major problem with this argument, typical of many current Ôbest interests of the childÕ arguments, and it begins with the phrase Ôthe childÕs views should be taken into account, consistent with their evolving capacities and taking into consideration the childÕs characteristicsÕ. The capacity of a child to contribute to decision-making about themselves is, in many jurisdictions including Australia,  based on the common law test of ÔGillick competenceÕ and the notion of the Ômature minorÕ. The test, which is essentially subjective, is used by judges and health professionals to identify children aged under 16 who can demonstrate sufficient maturity and intelligence to understand and appraise the nature and implications of any proposed treatment, including the risks and alternative courses of actions. 1.   Gillick competence ÔGillick competenceÕ is not determined by any psychometric tests. Most children and adolescents presenting with a desire to change gender suffer from a range of mental health issues (up to 96 per cent 1 ), and high rates of autism spectrum disorder have been diagnosed in this cohort. It is hard to imagine how such children and young people can be routinely assessed as ÔGillick competentÕ. A leading article in the British Medical Journal  states that Ô(a)round 35% of referred young people present with moderate to severe autistic traitsÕ. This is significant as only 1.1% of the UK population is estimated to be on the autistic spectrum. 1  In practice, individual clinicians determine a childÕs competence, so such judgments are inconsistent and not properly assessed by scientific criteria. As Hansen & Ainsworth (2009, page 431) point out, while professional participants are specialists in their own areas they are not the child or adolescentÕs parents who look after the day-to-day, all day, every day needs of the child. ÔTogether or separately, all professional participants do not one good parent makeÕ (Goldstein et al, 1996, page xix). The two key problems here, while pursuing the childÕs right to be heard (Ôthe voice of the childÕ as ChildrenÕs Commissioners refer to it), are - (1)   the matter of determining the childÕs capability of forming views; and (2)   the weighing of such views of the child. 2   3  As Brunskell-Evans 4  points out, a child or young person cannot truly give informed consent to therapeutic treatment because - !   The medical consequences are extremely complex, and a child (or young person)  will have little or no cognisance of a future in which he or she may come to regret lost fertility or the lack of organs for sexual pleasure !   In contrast to the staggeringly na•ve proposition that the child (or young person)  can give consent if he or she has been free from external pressures in the decision-making process, the competent ÔconsentingÕ child is an ontological   3  figure, brought into being and continuously shaped and re-shaped by the fast-evolving social and political landscape of disputed biological truths, the hegemony of queer theory, trans affirmative lobbying and the trans activism. Brunskell-Evans simplifies this, following Laidlaw, by asking the question Ð How can a child, adolescent or even parent provide genuine consent to such treatment? How can the physician ethically administer gender affirming therapy, knowing that a significant number of patients will be irreversably harmed? 5   2.   Transitioning and breaches of medical ethics Transitioning is against several medical ethical principles, including Ð a.   ÔThe least intrusive interventionÕ is not followed, especially given that treatment is usually irreversible. Related to this, Ôthe least detrimental alternativeÕ is not being followed;  b.   Children and parents are not being fully advised of alternative interventions or the consequences of medical and surgical interventions. ÔThe risks and alternative courses of actionsÕ are rarely presented by transgender clinics and certainly get no mention in the transgender ÔtreatmentÕ manual produced by Telfer et al for the Royal ChildrenÕs Hospital, Melbourne; c.   Sex is not acknowledged as a biological, immutable fact. Further, the medical evidence  against  gender transitioning is being ignored Ð this is despite documentation of increasing numbers of adolescents and young adults who are attempting to de-transition. Given that the human brain is not fully developed until age 25, the developmental capacity of the child or adolescent to make irreversible decisions with respect to their  biology is being ignored. Also, recent evidence shows that transgender children have different levels of neurological functioning compared with the general population (see Gliske, eNeuro  , 12 Dec. 2019). 3.   Parental rights Parental rights are clearly enunciated in UNCROC (see endnote 6 ) but are being ignored or subverted in deference to the medical professionals. The professional advice is often phrased in terms of the potential for the child to attempt suicide if the parents do not concede to their child transitioning. In effect, parents are being emotionally blackmailed into accepting the wishes of the   child or adolescent.  4. Evidence base lacking As Dr. Polly Carmichael, Director of the Tavistock Gender Identity Development Service (GIDS), concedes Ð The reality is we still donÕt have the long-term outcome data É WhatÕs happening is our society is moving faster than the evidence base 7 . However, as Michael Biggs points out, GIDS may have had such data if it had continued to   4 monitor and record the patients from its 2010 experiment with puberty-blocking drugs. 8  In Australia, Professor George Patton would agree that Ôour society is moving faster than the evidence baseÕ as he has done much international research on the disjunction between physiological and emotional development of adolescents over the past few decades 9 . The Royal College of Psychiatrists (UK) - acknowledges the need for better evidence on the outcomes of pre-pubertal children who present as transgender or gender diverse, whether or not they enter treatment. Until that evidence is available, the College believes that a watch and wait policy, which does not place any pressure on children to live or behave in accordance with their sex assigned at birth or to move rapidly to gender transition, may be an appropriate course of action when young people first present. 10  In conclusion, as Dr. Aoife Daly, Deputy Director, School of Law and Social  Justice/European ChildrenÕs Rights Unit, University of Liverpool, points out, if the answer to all of the following questions on Ôbest interests of the childÕ are not ÔyesÕ, then any actions in respect of a child should not proceed Ð 1.   Is the outcome being determined in the childÕs best interests? 2.   Does the child have a wish as to the outcome? 3.   Does the child want this wish to prevail? 4.   Is the best interest question free of legitimate obstacles to the childÕs best interests? 5.   Is significant harm unlikely to result from following the wishes of the child? 11  On the last question, in particular, transgender clinics and ChildrenÕs Commissioners and Guardians fail significantly to fulfil their obligation to act in the  best interests of children and young people! Geoff Holloway (Dr.) Hobart, Tasmania 2 January 2020 geoffsarmiento1@gmail.com PS: thanks go to Bronwyn and Jude for their assistance. 1   Butler et al, British Medical Journal, July 2018, Vol 103, No 7   2   Committee on the Rights of the Child, 2009: paras 20-1 3   Daly, A., No weight for Ôdue weightÕ? A childrenÕs autonomy principle in Best Interest.   5 4   Brunskell-Evans, H. The Tavistock: Inventing ÔThe Transgender ChildÕ. In Inventing Transgender Children and Young People  , Ed. M. Moore & H. Brunskell-Evans, Cambridge, 2019, page 35.   5   Ibid.   6   UNCROC:   Article 3, 2 States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Article 5. States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 14, 2 States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. Article 18, 1 States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may  be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.   7   ChildrenÕs Rights Impact Assessment  , Women and Girls in Scotland, 2019, page 25. Incidentally, the ChildrenÕs Rights Impact Assessment tools was designed by ChildrenÕs Commissioner Scotland. 8   Biggs, M. BritainÕs Experiment with Puberty Blockers. In Inventing Transgender Children and Young People  , Ed. M. Moore & H. Brunskell-Evans, Cambridge, 2019, pages 40-55. 9   Patton, G. & R. Viner, Pubertal transitions in health, Lancet  , 2007, Vol 369, March 31, 2007. 10   Royal College of Psychiatrists, Supporting transgender and gender-diverse people, Position Statement, March 2018, page 4. 11   Daly, A. op cit.
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