The court also held that there is clear evidence that the so-called alternative treatments (which the UK’s PATHWAYS trial will impose upon some participants) do not work, again implicitly rejecting several of the false claims made by Hilary Cass.

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The way the High Court in Wellington identified the correct comparators is compelling. Firstly, paediatric off-label use is common, and cisgender patients are not subject to the ban. Secondly, the court noted that other off-label uses, beyond precocious puberty, are not banned either.

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This runs directly contrary to what underpins the Cass Review and the UK and New Zealand government decisions. While not expressly stated in the judgment, it may be implied that the Cass Review and some of its recommendations are discriminatory.

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The successful claim was instead made out on the discrimination grounds as the court accepted ”PATHA’s submissions that the off-label nature of the prescribing or the low-certainty evidence about long-term harms and benefits is not a justification for the differential treatment.”

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That said, it is an obvious and correct conclusion that going further than the Cass Review must be disproportionate. “Even taken at its highest, it is still unlawful” is often the best argument to deploy in any judicial review. Having a safety net is better than nothing.

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