Six months on, a chance for the Appeal Court to overturn a bad judgment.
Tomorrow, Keira Bell’s dispute with The Tavistock and Portman NHS Foundation Trust returns to court. This is the Tavistock’s appeal against a ruling made against it in December 2020 in the Administrative Court of the Queen’s Bench Division of The High Court  which ruled against the use of puberty blockers for young trans people. The judgment ruled that children under the age of 13 would be “highly unlikely” to be able to consent to their use, that it “is doubtful” that teenagers of 14 or 15 could do so and that whilst young people of 16-17 had a statutory presumption of consent, “clinicians may well regard these as cases where the authorisation of the court should be sought”.
The ruling did not end the potential provision of temporary puberty blockers for young trans people, but it did make doing so dependent upon a court order for people under 16 and encourage the involvement of a court up to the age of 18. The order of the court was stayed – meaning that it was not intended to come into effect until an appeal could be heard. Nevertheless, in response to the ruling, the Tavistock went significantly further than it needed, introducing an immediate policy  of not prescribing blockers to any new patient under 16 until further notice and requiring existing cases to be backed by a court order for treatment to continue. Further, for 16 and 17 year olds, treatment, it decided, should be reviewed, and if necessary, a court order sought. Since then, in a separate case , the High Court (Family Division) decided that parents can legally consent to treatment with puberty blockers on behalf of their children under 16, hence eliminating the need for a Court Order. In response to this second ruling, the Tavistock then amended its policy . Since March, each case now needs to be reviewed by an external multi-professional group and if this group - of child, parent and clinicians - all consent, then treatment will continue.
The Tavistock did not reverse its previous position of not prescribing puberty blockers to new referrals (though for many traumatised families, sadly, the suspension was effectively academic as waiting times for referrals now stand at over three years and rising . This means that a young person referred before puberty starts is likely to have at least started it, possibly even finished it, before the treatment can even be considered.)
How did we get here?
The use of puberty blockers, a temporary treatment that has been in prescribed for over 20 years in a number of countries and which (outside the area of caring for trans youth) has been an established approach for the onset of precocious puberty in children without controversy, has in recent years become the focal point of a media frenzy in which clinical evidence has often been ignored. It’s not our role at Trans Legal Project to explore this in depth, though we unequivocally support the use of puberty blockers where appropriate, under proper clinical supervision, for young people who are facing the mental health disaster of the arrival of a puberty that they do not recognise and do not want and who need time to explore themselves and to come to the right choices about their future. A good recent summary of the issues is available here from The Lancet, a more detailed clinical review here.
The case returning to court tomorrow began with an action by Susan Evans, a Psychiatric Nurse, academic and psychoanalytic therapist who had previously worked at The Tavistock, and ‘Mrs A’, a mother whose 15-year-old autistic child had been referred to the Gender Identity Service (GIDS) at The Tavistock but who did not wish her daughter to be offered puberty blockers, calling them “an experimental treatment”. A crowdfunder was launched, eventually raising almost £100,000, to bring an action at the heart of which was the position that children could not consent to this treatment. Later, Susan Evans was replaced in the case by Keira Bell, someone who had detransitioned having been through the Tavistock process. Bell was briefly on puberty blockers aged 16, before going on to testosterone at 17 and then having a bilateral mastectomy at the age of 20. Aged 22 she concluded that she regretted her transition and reverted back to living as female.
As preparation for the case took place, various parties requested permission to intervene (by which they would be allowed to contribute opinions to the proceedings). Two organisations working centrally in this area, Mermaids and Stonewall, were, unfathomably, denied permission. Transgender Trend, an organisation viewed by many in the trans community as a hate group with no expertise in the matter, was granted permission. Nevertheless, as the case opened, in the light of medical evidence, most legal commentators viewed Bell and Mrs A’s chances of success as minimal. Importantly, the well-known and long established ‘Gillick Competence’  states that no child under 16 can be assumed in law to be unable to make their own choices about treatment and that cases should always be examined individually. Gillick has for 35 years protected the ability of young people to access treatment in situations where they and medical professionals believed they need it, but where parental consent might not be forthcoming. It is, for example, a cornerstone in the ability of clinicians to offer and for some young people to access contraception or abortion.
As the High Court proceedings opened it emerged that the applicants had selected medical experts from across the world with extreme, fringe views on transgender children and their treatment. Their relationship to the issues was at best shaky, at worst openly transphobic . Several were immersed in hard right and/or Christian anti-LGBT activism in the US or Australia. One was a Professor of Veterinary Medicine  whose studies of puberty blockers in sheep had been enthusiastically taken up by the fundamentalist Christian Institute. Others had little or no relevant experience. The Tavistock, by contrast, relied heavily on its own experts who though competent, would not have been viewed as independent.
The case, widely followed by parts of the British media that have been increasingly committed to stoking controversy and fuelling backlash against the trans community, eventually ruled in favour of Bell and Mrs A. The court noted that nearly everyone who started on blockers progressed to hormones and later surgery. As a result, it found that consenting to blockers included also consenting to the possible risks and consequences of later treatments including loss of sexual capacity and fertility. This was something to which children, it said, could not consent.
There were however a number of very major problems with this ruling.
First, it confuses correlation with causation. The court asserted – in effect – that the reason why those on puberty blockers went on to take cross sex hormones, and perhaps have surgery (the latter always years later as it is unavailable to anyone in the UK until the age of 18) was because they had been on puberty blockers. One stage of treatment, it suggested, led to the others. It did not consider the alternative explanation that, for the vast majority of patients, the process unfolded this way because they had been correctly diagnosed at the outset. No child gets anywhere near blockers until extensive assessment has taken place and until a certain stage of puberty (Tanner Stage 2) is reached. This stage allows for the child to be subjected to the early experience of the sex hormones produced by their body; clinicians will monitor the psychological and physical effect of these.
Second, the court completely failed to balance the risks of treating with blockers against the possible harm caused in not proceeding. Apart from enormous mental distress (with documented examples of young people being driven to suicide), these involve the immediate problems of trying to ‘pass’ in public or at school as their bodies change and they are forced to undergo a distressing puberty. Puberty involves the development of physical characteristics with which the trans person may then have to deal for life. For example, breasts they never wanted may have to be removed. Facial hair that grows needs later to be removed in long term and painful treatment. A voice that breaks cannot ‘unbreak’.
What happens now?
The appeal of this ruling begins tomorrow. In general, no new evidence is introduced in appeals and the appeal court accepts any findings of fact of the lower court. This restricts the scope of the appeal to errors of law. Permission for the appeal was granted on a number of grounds, the principal being that the earlier court had misapplied the principle of Gillick consent.
For the appeal, The Good Law Project  has assembled a coalition of Gendered Intelligence, The Endocrine Society and The Brook Advisory Service. This group has been permitted to make a joint intervention. It can focus mostly only on points of law rather than moral or ethical matters. The key points of its intervention are:
Puberty blockers are always prescribed by a consultant Endocrinologist yet the challenge was against GIDS which merely makes the referral.
The young person and the Endocrinologist are involved in the consent process, but no individual child or doctor was represented in court at the earlier hearing.
The court confused private and public law. Whether or not an individual child can consent to puberty blockers is a matter of private law. Instead, a court made decisions on private law matters in the guise of a public law case.
The Court was not provided with sufficient informed and impartial evidence to make decisions about which categories of children could give consent.
Stating the age categories of children in which they could or could not grant consent to treatment is contrary to the Gillick ruling.
The appeal is scheduled to last two days. We expect the judgement to be reserved, to be published sometime afterwards. We at TLP will be taking a close interest in developments, whilst also trying to avoid the frenzied and legally illiterate trans-hostile press coverage that is likely to break out. It is worth pointing out that even if the original ruling is upheld, the later decision in the Family Division of the High Court of March  will still allow The Tavistock to treat trans children under 16 with puberty blockers with the consent of patient, parents and clinician. In the event of the appeal failing, it remains to be seen whether The Tavistock will take the decision to maintain this stance, or be hounded once more by the media into a policy volte-face.
We wish the appellants in the forthcoming hearing the very best of luck in having the ruling of December 2020 overturned.
Trans Legal Project
7. For a useful overview of the cast of characters, see Jo Maugham’s Twitter thread here https://twitter.com/JolyonMaugham/status/1338754179540586496
8. Professor Neil Evans – Institute of Biodiversity Animal Health & Comparative Medicine and the School of Veterinary Medicine University of Glasgow
[This blog was revised slightly on June 23 to remove a typo and one footnote.]