December 1: A court has ruled that children under 16 in England and Wales will have to prove they are mature enough to take puberty blockers that are likely to damage their fertility and sexual function as adults.
The ruling was in response to a judicial review brought by Keira Bell, a 23-year-old woman from Cambridge, who previously identified as a boy and was given puberty blockers at the age of 16 by the Tavistock clinic in London, which houses Britain’s only specialist gender-identity centre for children. She was then given testosterone at 17 and went on to have a double mastectomy at 20. But she soon regretted the change and launched the judicial review to challenge the way the Tavistock had handled her case, The Economist reported.
The court considered children of all age groups, and said it was “highly unlikely” that a child of 13 or under would be “competent to give consent to the administration of puberty blockers”, and that it was “doubtful” that 14- and 15-year-olds would be able to understand the long-term risks and consequences. The ruling is likely to result in closer scrutiny of all decisions surrounding children who want to go through a medical transition, and mean that a court order may be necessary for them to do so. The ruling will be watched closely in other countries grappling with similarly complex legal issues around children questioning their gender.
Standing outside the court, Ms Bell said she was delighted with the decision, calling it a judgment that will protect vulnerable people. “I wish it had been made for me before I embarked on the devastating experiment of puberty blockers.” In a statement to the hearing into her case, held in October, she said that she had been left with “no breasts, a deep voice, body hair, a beard, affected sexual function and who knows what else that has not been discovered”.
Her lawyer said the decision “opens the floodgates for expensive clinical-negligence claims”. The case comes as an increasing number of young people seek to change gender. Referrals to the Tavistock’s centre have risen more than 30-fold in a decade, to more than 2,500 last year. At the hearing in October, lawyers for the trust that runs the clinic had argued that puberty blockers are rarely used in children under the age of 13 and their use is a safe and reversible treatment with a well-established history. Lawyers for Ms Bell and her fellow plaintiff, known only as Mrs A, whose autistic teenage daughter is awaiting treatment at the Tavistock, said that children who had not yet gone through puberty were not able to understand properly the lifelong medical, psychological and emotional implications of taking puberty blockers and cross-sex hormones. They argued that the medical protocol behind giving the drugs did not have an adequate scientific basis.
The three judges agreed with Ms Bell. They found that giving puberty blockers to children is “properly described as experimental treatment” and knowledge about how much they will or will not benefit is “very limited”. They also expressed surprise at the lack of data collation by hospital clinicians, given the young age of the patients, the experimental nature of the treatment and the long-term impact on their health.
A lawyer for Ms Bell and Mrs A had argued that, in 97% of cases, the use of puberty blockers in children led to further treatment, such as cross-sex hormones. The Tavistock countered that puberty blockers should be treated separately from further treatments. Here, the court sided with Ms Bell again, stating that evidence shows that the vast majority of children who take puberty blockers move on to take cross-sex hormones, and “once on that pathway it is extremely rare for a child to get off it.”
“This is the court saying to the Tavistock, ‘you are not currently complying with the law, and you must uphold the current legal test about the maturity of children to give informed consent,’” says Rosa Freedman, a law professor at the University of Reading. “This case shows that most children given puberty blockers have not been given enough information to legally give informed consent about such a life-changing decision.”
The Tavistock and Portman trust, which oversees the clinic, responded to the ruling: “The Trust is disappointed by today’s judgment and we understand that the outcome is likely to cause anxiety for patients and their families.” Lui Asquith, legal policy director of Mermaids, a charity that supports trans children, called it “a betrayal of trans children across the country”. She added, “We at Mermaids see every single day the life-saving effect that hormone blockers can have.”
Supporters of Ms Bell celebrated her victory. Many have long expressed concern that the Tavistock, and other such clinics around the world, only take an “affirmative” approach, whereby a child’s diagnosis of their own gender is accepted unquestioningly, and other issues such as trauma, abuse, other mental health problems or autism are not explored as causes of their dysphoria.
“The judgment today is a watershed moment,” wrote Transgender Trend, a campaigning group. It raises serious questions “about the transgender lobby groups that have influenced the NHS and pressured the Tavistock into providing these treatments for children at ever younger ages.”
A spokesperson said the Tavistock will appeal, but Professor Freedman says an appeal is unlikely to be accepted, because the ruling is not making new law, but simply restating the current legal position. What is also needed, she says, is better access to health care for all trans-identifying children and adults, so that they are not just “either ignored or medicalised” or “used as political pawns by both sides of the debate”.