A recent United Kingdom High Court decision has important implications for young British transgender applicants. This decision set strict limits regarding children applying for puberty-blockers.
The case was against the Tavistock and Portman NHS Trust and was brought by 23-year-old Keira Bell. She described that in her teens she had felt “uncomfortable” in her female body and began to think she might require transgender treatment. The judgment records that “from the age of 14, she began actively to question her gender identity and then started to look at YouTube videos and do research on the internet about gender identity disorder and the transition process”.
Keira Bell consulted a psychologist at the NHS Tavistock Gender Identity Development Service (GIDS) and was prescribed puberty-blockers which she started taking at the age of 16. These drugs are designed to suppress natural physical developments around adolescence. She was prescribed puberty suppressants after only three appointments. A year later, at the age of 17, Keira was then prescribed testosterone and at the age of 20, underwent a double mastectomy.
The testosterone could be relied upon to produce an Adam’s apple, facial hair and a deep voice.
It did not take long for this person to realise that she had made a terrible mistake in undergoing transition. She decided to sue the Tavistock GIDS, arguing that at the age of 16, she was not competent to consent to the taking of puberty blockers. She argued that when she entered the care of the Tavistock GIDS clinic, she should have been challenged more about what she was requesting.
Instead she felt that she was put onto a conveyor-belt of “affirmation”, which resulted in puberty suppressants, cross-sex hormones and eventually the double mastectomy. She said: “I made a brash decision as a teenager (as a lot of teenagers do) trying to find confidence and happiness, except now the rest of my life will be negatively affected”.
The High Court ruled that it is “highly unlikely” that a child aged 13 years or under would be able to give informed consent to being treated with puberty-blockers. It went on to cast doubt on the ability of 14 or 15 year-olds being able to understand the long-term risks and consequences of treatment in order to give informed consent.
The judges wrote “Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment”.
Preceding this judgment, there had been doubts expressed by some UK parties about this procedure. Last year, reportedly, one of Tavistock’s foundation governors resigned after accusing the GIDS of dismissing an internal report which was damning in its conclusion that the service was not fit for purpose. Parents and others had raised alarms regarding the service, accusing it of failing to fully consider psychological and social factors in a young person’s background, factors such as autism, which might have had an influence on their decision to transition.
Interestingly, Australia had been the only country in the world to require the involvement of a court in the process. Some families with transgender children requested that the role of the Family Court in such applications be abolished, and in 2017 in the Full Court of the Family Court decision of Re Kevin, the necessity for court approval for puberty blockers and cross-sex hormone therapy where the child was found to be “Gillick competent”.
As a result of the British decision, the UK NHS reacted immediately, releasing a statement which read: “We welcome the clarity which the court’s decision brings. The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for under-16s, which in future will only be permitted where a court specifically authorises it”.
Also see “Re Kelvin decision a positive outcome for transgender children” (https://nicholeslaw.com.au/re-kelvin-decision-a-positive-outcome-for-transgender-children/)