Background
The Professional Association for Transgender Health Aotearoa Incorporated challenged regulations prohibiting new prescriptions of gonadotropin-releasing hormone analogues, commonly called puberty blockers, for children and adolescents with gender dysphoria or gender incongruence. The regulations permitted existing patients to continue treatment and did not restrict use of the same medicines for other medical conditions.
The Ministry of Health had consulted publicly about possible additional safety measures, but the consultation did not indicate that a prohibition on new prescriptions was contemplated. After Cabinet considered several regulatory options, the Minister recommended the regulations under the Medicines Act 1981. Before they took effect, PATHA obtained interim orders preventing their enforcement and then sought judicial review, alleging procedural, statutory, rationality, and New Zealand Bill of Rights Act 1990 violations.
The Court’s Holding
La Hood J held that the regulations were unlawfully made and set them aside. The consultation failed to satisfy s 105 of the Medicines Act because participants would not have understood that a prohibition on new prescriptions was proposed, and gender-diverse young people were not consulted directly despite there being insufficient urgency to justify that omission. The Court considered that proper consultation could have produced materially different submissions.
The blanket and indefinite prohibition also unjustifiably discriminated on the ground of disability, contrary to s 19 of the Bill of Rights. Although restricting access had a rational connection to the legitimate objective of safe and effective prescribing, a complete ban was disproportionate, particularly given the affected cohort’s elevated risk of serious adverse health outcomes, including self-harm and suicide. The Court rejected claims that the Minister had surrendered his authority to Cabinet or acted to advance New Zealand First’s “anti-woke” agenda, and declined to decide the novel claims under ss 8, 9, and 10 because they were not necessary to the outcome.
Key Takeaways
- Consultation on general safety measures did not satisfy a statutory duty to consult about the materially different proposal of banning all new prescriptions.
- A rational basis for regulating a medicine did not justify a blanket, indefinite restriction that discriminated against a vulnerable cohort.
- The Court declared the regulations unlawful and invalid and ordered that they be set aside, while leaving any replacement restrictions to the Minister and Cabinet.
Why It Matters
The decision confirms that delegated health regulations remain subject to meaningful procedural review and rights-based proportionality analysis. Where regulations target a defined patient group, the government must consult on the substance of the measure actually under consideration and assess less rights-restrictive alternatives.
The judgment did not establish that puberty blockers may never be restricted. It held instead that the particular blanket prohibition was unlawful, while recognizing that the available evidence and overseas developments gave the Minister a rational basis to consider some restrictions.