The far-reaching and immediately impactful High Court judicial review decision of Bell and A v The Tavistock and Portman NHS Foundation Trust  EWHC 3274 (Admin) conflates puberty blockers and medical transition and holds puberty blockers should not be available to trans youth under the age of 16. The court gives the reason that puberty blockers ‘lead down a pathway to medical transition’ which can have some irreversible effects. According to the court, young persons under the age of 16 cannot appreciate the nature and significance of these potential, and potentially irreversible effects in the areas of sexual functioning and fertility. Better then, is the court’s logic, to let them experience the irreversible effects of puberty.
As was argued by the Tavistock, which runs the Gender Identity Development Service (GIDS), that puberty blockers alone are accepted to have no known negative side-effects and their intended effects are beneficial, temporary and reversible. Medical research has shown that puberty blockers significantly reduce suicidal ideation in trans youth (Turban et al, 2020). In England and Wales, medical transition through gender-affirming hormones (sometimes described as cross-sex hormones) is already only available on the NHS to over 16s, and surgery only to adults – through Gender Dysphoria Clinics. The three treatment processes, which are described in the decision in some detail, are unique and subject to separate decision-making processes (decision at 40, citing Professor Butler’s evidence). Banning an innocuous, reversible treatment for under-16s because a treatment which is, and will remain, available only to over-16s may have irreversible effects that an under-16 might not be able to appreciate, exposes the flawed logic of the court and leaves the decision wide open to appeal.
At the heart of the decision lay the question of who is ‘competent’ to decide a course of medical treatment. In all areas of healthcare, the NHS deploys a test called the ‘Gillick Competence test’ for deciding under 16’s capacity to make informed decisions regarding their own treatment. The Court found that trans youth are highly unlikely to be Gillick competent, and accordingly put itself in charge of making complex medical decisions, instead of trusting the agreement on a course of treatment reached between the young person, their parents and a team of physicians and counsellors. The effect of this decision is to drastically curtail young trans people’s access to treatment and may well have repercussions beyond the current area of trans healthcare.
The decision’s effect of severely limiting the availability of puberty blockers puts trans children’s lives at risk and only makes eventual transition much more invasive. The court showed itself to be persuaded by one of the interveners in the case, ‘Transgender Trend’, an anti-trans organisation, which believes young people are being pushed to transition as part of a media-fuelled craze, and distributes anti-trans info packs among schools. The court also cited a plethora of outlier ‘experts’ included in the claimants’ evidence, many of whom have made anti-trans statements in public and some of whom are linked to the US Christian-right.
Judicial review and the arguments
The case was brought by Bell (the claimant’s name is listed as Quincy although Bell uses Keira in the media), now 23, who regrets her medical transition, and ‘Mrs A’. The court decision tells the story of how as a young teenager Bell sought advice from the Gender Identity Development Service (GIDS). The GIDS discouraged Bell from taking steps to transition but this only solidified her objective which was to get testosterone. At Bell’s request and with parental support, at 16 she was prescribed puberty blockers, and started on Testosterone at 17. At 20 Bell had a double mastectomy. Now 23 Bell belongs to the less than 0.5% who regret their transition, and she has gone to court to challenge the prescription of puberty blockers to all trans teenagers.
The second claimants is Mrs A, parent of a 15-year-old trans teenager diagnosed with autism whom Mrs A wants to prevent from accessing puberty blockers. However since the teenager is not a GIDS client, and even if they were, the GIDS would not refer them on for puberty blockers without parental consent, such access is out of the question. The court for these reasons concedes that Mrs A’s interest in the legal action is ‘therefore largely theoretical’ (decision at 89) — or, we might say, political. Mrs. A’s participation plays into the common transphobic trope that the coincidence of autism spectrum conditions among youth with gender dysphoria explains why ‘transgenderism’ is merely a teenage craze, a trend — as the second interveners believe — and transition a mere placebo for complex mental health issues.
The claim is a judicial review of the practice of the Tavistock and Portman NHS Trust, through its Gender Identity Development Service (GIDS) and the first and second interveners (UCL and Leeds NHS Trusts, the two hospitals that the GIDS works with) of prescribing puberty suppressing drugs to persons under the age of 18 who experience gender dysphoria (decision at 2). The legal action, brought by two individuals in the form of a judicial review of a general practice, is therefore intended to affect a whole class of people.
The court discussed the GIDS assessment practice in some detail, citing extensive evidence brought by the Tavistock, including the information the GIDS provides to young people in the form of booklets and orally in the several appointments that precede any treatment plan. Like all clinicians, when assessing a young person’s capacity to make decisions on their own medical treatment, GIDS teams use what is known as the ‘Gillick competence test’. This test hails from the 1986 House of Lords case of Gillick v West Norfolk NHS Trust, the unsuccessful case by activist and campaigner Victoria Gillick, who challenged the right of under-16s to be offered the contraceptive pill. A ‘Gillick competent’ child is one who has “enough understanding to make up their own mind about the benefits and risks of treatment.” The court in Bell limited its decision to under-16s because 16- and 17-year olds are by law considered competent.
The court describes the GIDS’ Gillick competency assessment protocol, the ‘Standard Operating Procedure’ in detail (decision at 36ff.). By raising a presumption against Gillick competence in the case of trans children seeking puberty blockers, the court effectively renders illegal the GIDS’ clinical teams’ use of the Gillick procedure to assess an under-16-year-old’s competence. It also decided that under-16s as a rule cannot give informed consent to puberty blockers. This is because, in the court’s view, they cannot understand the potential long-term effects of medical transition.
The question before the court (and thus the impact of its decision) in fact only concerns the provision of puberty blockers. Puberty blockers have been used for decades for children with precocious puberty and for trans children, without indication of serious side effects. Puberty blockers serve to give a young person some time to reflect on their gender identity and consider any next steps and their effects are temporary – normal puberty follows when blockers are stopped. Gender-affirming hormones (like testosterone and oestrogen) and surgery (together: medical transition) are subject to an entirely separate assessment carried out by the UCL and Leeds Hospitals’ teams and the adult Gender Dysphoria Clinics, and are never offered by the NHS to children under 16. Despite the extensive evidence provided by the GIDS’, UCL’s and Leeds’ clinicians of their separate assessment processes, the court conflates the three, barring access to puberty blockers, seemingly so as to deter take-up of medical transition.
The notion (commonly cited in anti-trans publications and suggested by the claimants and their counsel) that ‘scores of children’ are seduced by the internet to believe they are trans and handed life-altering medication ‘like it is candy’ before being sent down a transition pathway is simply not supported by the facts. Even before Bell, there were considerable constraints on access to gender-affirming healthcare for young people. The average waiting time for the initial GIDS appointment is 22-26 months (pre-COVID) although in some cases young people wait up to four years for their initial appointment. It takes between 3-6 appointments for assessment, involving social workers, family therapists, psychiatrists, psychologists, psychotherapists, paediatric and adolescent endocrinologists and clinical nurse practitioners, over at least 6 months, before a care plan is agreed with the young person and their family. Only if the young person is Gillick competent, has parental/guardian support, and fulfils other strict criteria will they be referred to the UCL or Leeds NHS Trusts (second interveners in the case) for consultation and/or physical assessment with an endocrinologist to decide if puberty blockers may be appropriate.
The court described these wait times and assessments in the decision, and sides with the claimants despite the GIDS’ numbers, also cited, painting a different picture. In 2019/20, 95 young persons under the age of 16 were referred by GIDS to the UCL and Leeds NHS Trusts’ endocrinologists for puberty blockers (decision at 29). If we compare this (something the court neglects to do) to the number of young people referred to GIDS, which was 2519 in 2018 (decision at 31), we see that contrary to the claim of ‘scores’ this is an extremely low number.
The fact that most GIDS clients who take puberty blockers after some time (usually years) move to taking gender-affirming hormones is taken by the claimants — and the court — to mean that hormone blockers send young people down an inexorable path of medical transition. A more likely explanation is that the numbers rather speak to the thorough job the GIDS do to ensure that only those children who are certain of their gender identity are prescribed blockers. Transition regret, as noted above, is extremely rare and although it is a serious and difficult issue for the individual involved, this should not be used to seek to deny that treatment to others.
The immediate and potentially wider impact:
The decision has had an immediate, devastating effect. The Tavistock and Portman NHS Trust, who funds the GIDS, the NHS’s only gender identity clinic for young people, has suspended hormone treatment for all its patients under 16 and cancelled all upcoming new appointments. This means that trans teenagers now face the immediate prospect of going into puberty. Apart from being extremely distressing for young trans people, puberty potentially produces the need for further, more invasive medical treatment in the future (e.g. top surgery) or may produce changes to the body that are irreversible (e.g. deepening of the voice) which may worsen dysphoria throughout a person’s life. The alternative for trans youth and their families – if they have the means – is going online to purchase medication without being certain of its source or quality and without appropriate guidance.
The court’s decision means non-medically trained judges, rather than young people, their parents or carers and their clinical teams, get to decide on a course of medical treatment. It adds a considerable delay and cost to such treatment, for both patients, for the Courts and for the NHS. It further deepens the inequality in access to trans healthcare. It demands that young people prove their identity to a court, a demand that in 2017 was already recognised as unnecessarily increasing mental health risks by an Australian decision which removed court authorisation for youth access to gender-affirming hormones. The 2020 High Court decision puts young people’s lives at the mercy of a cisnormative legal system, which also recently denied Freddy McConnell, “Seahorse dad”, leave to appeal the decision rejecting his request to be recognised as the father of the child he birthed, forcing him to go to the European Court of Human Rights in Strasbourg. It comes in the midst of an increasingly hostile environment for trans people in the UK (call it an anti-trans craze), where the government recently chose to ignore its consultation on reform of the Gender Recognition Act because it did not like the fact that respondents overwhelmingly favoured gender self-determination.
Mermaids which supports trans children and young people, and many other organisations such as Gendered Intelligence have pointed out the dangers of this decision and published guidance for trans young people and their parents/carers. Think2Speak has said, “No young trans people were called to the stand. There was no Equality Impact Assessment, no consideration of their patients’ welfare.” Stonewall has commented:
“the court’s judgment does not reflect international best practice in the care of trans children, as highlighted by The World Professional Association for Transgender Health (WPATH) Standards of Care and the Endocrine Society’s Guidelines, along with medical organisations and experts around the world, who have called for the decision to be overturned. We will do everything we can to support ongoing legal efforts to ensure trans young people have access to care.”
The decision is a blow to all young people’s autonomy. Gillick, at the time hailed as triumph, is the reason young people are able to access contraceptives, abortion and mental health services on their own initiative. To put this in perspective, in the England and Wales, the age of criminal responsibility is 10, a 13-year-old can seek paid employment, and at 15 and 7 months a young person can sign up to join the army at 16. While there is much to be said for raising the bar in those areas, declaring young people to be incompetent to know their own identity is anathema to how we are increasingly able to recognise young people’s capability, for example where 16-17 year olds were recently invited to vote in the Scottish independence referendum.
One worry is that this decision sets a precedent for conservative moral crusaders such as Gillick and Bell and the kinds of campaign groups that supported them to challenge other aspects of young people’s healthcare. Anti-abortion groups now have grounds to argue young people cannot consent to abortion. In fact Bell’s solicitor, Paul Conrathe, is involved in a number of anti-abortion cases.
The courts might see this decision and others (like Freddy McConnell’s case) as a way to push back against a perceived “wave of transgenderism”. But young people will continue to assert gender self-determination, trans kids will continue to take steps to transition, trans people are not going away. These efforts to “stem the tide” are punitive, they are cruel, and they will ultimately be ineffective. The question is how many young lives will be harmed in the process.
Campaigns and fundraisers to support the Tavistock’s appeal of the decision have already begun. The Good Law Project aims to intervene in the appeal alongside a number of NGOs.
With thanks to Katherine Fallah, Juliana Gleeson and Xan Randall for their helpful comments on earlier drafts.