This week in Wellington, the High Court heard detailed legal arguments on a question that has been fiercely debated in public for two years but rarely examined in court: did Health Minister Simeon Brown act out of caution when he restricted new puberty blocker prescriptions for young people under 18 with gender dysphoria, or, as opponents allege, for political reasons?
Over three days of hearings (14-16 July), Justice Dale La Hood heard both sides of that argument in full. Here’s a look at what was argued in court.
Days 1 & 2: PATHA’s case
The Professional Association for Transgender Health Aotearoa (PATHA) opened by arguing that the restrictions on new puberty blocker prescriptions breach rights protected by the New Zealand Bill of Rights Act and depart from accepted clinical practice.
Counsel Victoria Casey KC framed the case as being about more than medical evidence alone, telling the court the decision was “not about the medicine” but about “who this very small group of young people are”. By the second day of arguments, however, Casey had focused more squarely on what she described as flaws in the Minister’s decision-making process.
Casey told the court that a Ministry of Health position paper had not supported the restrictions and had instead recommended that prescribing decisions remain with clinicians. “The expert advice says the evidence does not warrant this,” she said, “and if the minister pretends that it does, that’s in defiance of an incontrovertible fact.”
She also raised a legal argument concerning the scope of the Minister’s powers under the Medicines Act, arguing that the legislation does not permit regulations to be based solely on a minister’s own assessment of scientific evidence.
Casey then advanced what was perhaps her most significant allegation regarding the decision-making process. She pointed to what she described as inconsistencies between two affidavits filed by Brown. In one, he said he made the decision after weighing the evidence himself. In another, he said he presented four options to Cabinet, which then made a collective decision.
Casey argued that the distinction matters because it raises questions about who was ultimately responsible for the decision. She alleged that the restrictions reflected a political accommodation with New Zealand First, whose ministers Winston Peters and Casey Costello have publicly criticised aspects of transgender policy. “It was a political deal with New Zealand First,” she told the court, “and the minister is pretending that it had nothing to do with them.”
She argued that the court may need to consider what she characterised as a lack of candour in the Minister’s explanation of how the decision was reached.
Casey concluded by challenging the substance of the decision itself. She argued that it was irrational to restrict a treatment because of uncertain long-term risks while disregarding what she described as clear expert evidence that restricting access would cause serious harm to affected young people, potentially including an increased risk of suicide.
Day 3: The Crown’s response
Crown counsel Brian Dickey KC rejected the characterisation of Brown’s motives outright.
Suggestions that the Health Minister acted out of prejudice, he told the court, “rely on hyperbole, supposition and rhetoric” rather than evidence. The process behind the November 2025 restrictions, he argued, was “entirely regular, routine, proper and lawful.”
Brown’s evidence, Dickey said, showed that he “did not act out of the gross prejudice proposed against him, nor was he supplicant to the views of others.”
Addressing comments made publicly by New Zealand First politicians, Dickey argued that the relevant question for judicial review is the reasoning of the decision-maker himself. Brown, he said, was “unequivocal” that he made the decision and did so through the proper constitutional process. Political statements made by coalition partners, the Crown argued, are not themselves evidence of an improper purpose on the part of the Minister.
On the issue of official advice, Dickey accepted that Ministry of Health officials had recommended retaining prescribing discretion for clinicians. However, he argued that ministers are not legally required to adopt the recommendations of officials.
“The political actor” ultimately makes such decisions, Dickey said. “If he is more cautious than others, so be it.”
Dickey also relied on legal authority to argue that judicial review concerns legality rather than the merits of policy decisions. Referring to the UK case Friends of the Earth v Secretary of State for Energy Security, he submitted that courts should not substitute their own views for those of elected decision-makers where Parliament has entrusted those decisions to ministers.
He also pointed to overseas developments, including restrictions introduced in the United Kingdom following the Cass Review, as part of the broader context in which the Minister made his decision.
Dickey told the court that Brown had been aware his decision would have significant consequences for affected young people and that it had not been an easy decision to make. Justice La Hood responded: “Nothing about this case is easy, not for the minister or anyone else.”
The puberty blockers ban ( on prescriptions for children under 18) remains in place pending the outcome of the judicial review. Both sides now await Justice La Hood’s judgment.
This article is based on reporting of submissions made during three days of hearings in the High Court at Wellington. The court has not yet ruled on the merits of either side’s arguments. A follow-up article will be published once judgment is delivered.
