Update 18 September 2021: the Court of Appeal reversed the High Court decision, in part on their application of the law of evidence. It was looking bad for treatment for trans children, but is looking much better now.
1 December 2020: After the case of Quincy (or Keira) Bell, it will be exceptionally difficult for a trans child under 18 in the UK to get puberty blockers. The High Court has decided that the evidence the Gender Identity Development Service (GIDS) had to justify prescribing puberty blockers was insufficient, and children were not capable of consenting to the treatment.
The court did not consider all the benefit that the trans child will get from puberty blockers. It may be possible for individual trans children and their families to take court action to get that relief. It may be that a better understanding of the benefits from puberty blockers, or simply a better way of explaining those benefits, will enable trans children to get the treatment they need. However they will have to go through legal proceedings to demonstrate sufficient consent, as well as to convince psychiatrists that the treatment is appropriate, and the ethical and practical concerns for each will be different.
The court’s judgment discussed at length the GIDS practice, which bent over backwards to protect any cis child and avoid transition. Families may simply go abroad and go private, and have far less protection, as one family referred to in the case did.
This is how the court made its decision.
The law requires that there should be consent for medical treatment, and the court considered how doctors could obtain legally valid consent. It was not for the court, they said (para 9) to consider what treatment may or may not be appropriate, as that was a medical decision. Can a person under 18 consent? How could a doctor be sure that in the case of any particular person, there was legally valid consent?
The defendant in the case was the Tavistock and Portman NHS Foundation Trust. Since 1989 it has provided the Gender Identity Development Service, for patients with gender dysphoria up to the age of 18. The NHS specifies the purpose of treatment: “to help reduce the distressing feelings of a mismatch between their natal (assigned) sex and their gender identity”. The service provides specialist assessment, psychological support and physical treatments.
Dr Polly Carmichael, the director of the GIDS, described the processes children undergo. She says there are three stages of treatment: puberty blockers (PBs), cross sex hormones (CSH) and gender reassignment surgery, which is only available via adult services. In November 2019, the waiting time for a first assessment was 22-26 months. The assessment process will typically involve three to six sessions over six months, or longer. Many will have more sessions, and the younger the age the more sessions are likely. The doctor takes a history, including their social functioning in general, experience of puberty, attractions, and hopes and expectations for the future.
The GIDS refers children to University College London Hospitals (UCLH) or Leeds Teaching Hospitals (LTH) for endocrinology and prescription of PBs. In 2011 these services started to assess PBs for those aged 12-15, and began the Early Intervention Study. The Study recruited children for three years, and continued considering them until February 2019 when the last child started cross-sex hormones (CSH). The paper is now under peer review. On early outcomes reported in 2014, all of the 44 children on PBs wanted to continue them, and 23 reported an improvement in mood, though “there was no overall improvement in psychological wellbeing using standardised psychological measures”.
In the year 2019/20, 161 children were referred for PBs. 26 were 13 or younger, and 95 were 15 or younger. This is considerably fewer than the number of referrals to GIDS, which in 2018 was 2519. 76% were AFAB. There are 12.7m children in the UK, and if 0.1% eventually transition that’s 12,000 people. So it would seem that those people now, while they are children, have a reasonable chance of being referred to GIDS, but only a small chance of going on PBs.
Possibly a quarter of those referred were on the autism spectrum. The precise figures are not available.
The court was looking at consent, as legally required, and so what consent was given and when matters. GIDS assessed whether the child was competent to give consent to PBs, and would only refer to UCLH if the child and parents consented. Then UCLH again took consent for the PBs. Dr Carmichael explained the process of obtaining consent. The doctor ensures the child is aware of the consequences of treatment, including implications for fertility, and checks the child’s hopes for treatment are realistic. After referral, UCLH gives the child written information on the drugs, their limitations and possible side effects. Dr Carmichael said, “In my experience, those young people we see who are recommended for GnRHa [PB} treatment understand the implications and limitations of treatment with GnRHa treatment and are able to consent to this stage of treatment.”
UCLH requires the consent of parents or guardian, assesses the level of puberty, and “judge[s] the level of emotional cognitive and psychosocial maturity, and capacity”. That is, they reassess the ability to consent, and if necessary refer back to GIDS for reconsideration. They ensure that it’s the child’s decision, not because of pressure from others. Prof. Gary Butler, consultant in paediatric endocrinology at UCLH, said he would not wish to have to apply to the Court of Protection, because of the delay and the additional burden on GIDS and UCLH, and the distress of the children.
For the Claimants, Professor Scott, director of the Institute of Cognitive Neuroscience at UCL said that she has significant doubts about the ability of those under 18 to “appreciate the significant consequences that will result from the decision to accept hormonal treatment for gender dysphoria.” Because of brain development, teenagers make riskier, more emotional and less rational decisions than adults.
PBs were first used at a Dutch gender clinic in the late 1990s. That clinic proposed that PBs should be prescribed from age 12 after a diagnosis of gender dysphoria. Then the child had CSH from age 16.
Before you can decide whether treatment is appropriate, you have to say what it is for, and the purpose of prescribing PBs is confused. Dr Carmichael said they gave the young person time to think about their gender identity before progressing to irreversible treatment of CSH, or not. To me, the purpose is to prevent the child developing a body shape for the wrong sex. After nineteen years on hormones my hips are no wider, but had I started treatment in my teens, I might have wider hips, feminine hair distribution, and a more female voice.
The court decided that consent was insufficient, because almost all children on PBs went on to CSH (para 56). Therefore they did not benefit from more time to consider their options. In effect, the child was consenting to CSH when they consented to PB. This is a matter of fact, not of law, and so not a binding precedent. The clinic could find ways of making sure that the movement to CSH was not routine, or find better evidence.
The court considered that the Health Research Authority had looked at the Early Intervention Study, and “raised concerns that the treatment might be responsible for generating persistence, rather than ‘creating space to decide’.” In the Netherlands, only 1.9% of patients on PBs stopped the treatment and did not proceed to CSH, and though the GIDS could not provide the data, the court concluded (para 59) that “the language used in their witness statements suggests that a similarly high proportion of children and young people in the United Kingdom move from PBs onto CSH.”
Are PBs reversible? The GIDS information sheet for children said, “We do not fully know how hormone blockers will affect bone strength, the development of your sexual organs, body shape or your final adult height. There could be other long-term effects of hormone blockers in early puberty that we don’t yet know about.” A clinical professor of psychiatry for the claimants said that the psychological changes of puberty are less well understood than the physiological changes. Children on PBs would miss out on the social and personal experiences of their peers, including sexual attraction. Though, again, I would say so did I: the way I was attracted to others was so different from “normal boys” according to the gender stereotypes of my society that I could not form a satisfying relationship until much later- indeed, until I started expressing myself as female.
The claimants said there was insufficient scientific evidence to justify prescription of PBs. The court considered that they should not judge the expert evidence. It is common for paediatric medicines to be used off-label, that is, for purposes other than their normal use. That did not make the treatment experimental. However, the court considered the impact of the treatment was unknown, and that affected whether the child could “have a sufficient understanding of the risks to be able lawfully to consent to that treatment” (para 74).
The court considered whether children diagnosed with GD continue trans in adulthood. The Dutch study argued that adolescents with established gender dysphoria rarely revert. Professor Hruz, for the Claimants, suggested that the diagnosis and treatment solidified the feeling of cross-gender identification, and that different treatment (conversion therapy?) might have led them to revert.
Keira Bell said that the psychiatrist tried to persuade her not to pursue transition, but “I took this as a challenge to how serious I was” about her decision. She was first seen aged 16, and had a number of assessments over 21 months. Aged 17 she started testosterone, and her voice dropped. She grew facial hair. She had chest surgery aged 20 despite doubts of whether she was doing the right thing. However, she said that she was socialised as a girl, so could not relate to male experiences in conversation with men: “There was an unspoken “code” a lot of the time that I felt I was missing.”
“My biological make-up was still female and it showed, no matter how much testosterone was in my system or how much I would go to the gym. I was being perceived as a man by society, but it was not enough. I started to just see a woman with a beard, which is what I was. I felt like a fraud and I began to feel more lost, isolated and confused than I did when I was pre-transition.”
I feel sorry for her. Of course I do. I wonder why her official name, in the name of the case, remains “Quincy Bell” rather than Keira.
Trans people gave evidence. J is a trans man aged 20, who received PBs aged 12, then CSH aged 15. He had felt a strong need to be a boy from an early age, found female puberty unbearable, and though the clinicians strongly challenged his desire to transition, and explained the effect on fertility, he was happy with his decision. He did not know if later he would want children, but “without immediate treatment I did not feel I had a future at all”.
A 13 year old trans boy gave evidence that when told he would have to wait 24 months to be seen, his parents took him to Gender GP, who now operates outside the UK, who prescribed PBs: with considerably less protection than GIDS would have provided.
I am afraid I do not think the court takes gender dysphoria, the state of being trans or needing to transition, sufficiently seriously. Para 135: “The condition being treated, GD, has no direct physical manifestation. In contrast, the treatment provided for that condition has direct physical consequences, as the medication is intended to and does prevent the physical changes that would otherwise occur within the body.” If they considered that treatment could alleviate lifelong distress, such as mine in having male hips and body hair, they might have reached a different conclusion.
They consider consent to PBs is practically consent to CSH, that a child cannot decide whether they would want children as an adult, indeed, cannot conceive what that, or sexual fulfilment, would be like. Para 141: “That adolescents find it difficult to contemplate or comprehend what their life will be like as adults and that they do not always consider the longer-term consequences of their actions is perhaps a statement of the obvious.”
How to allow treatment?
GIDS will not proceed without the consent of the child and the parents, so the court did not consider whether the parent’s consent would be sufficient if the child was incapable. The court has ruled that the child’s consent is not sufficient to justify the treatment (para 47). One way forward would be to treat on the basis of the parent’s consent, with more evidence of the value of the treatment.
Or if the GIDS could show that assessment for CSH was robust, and patients did not automatically proceed from PBs to CSH- that PBs were genuinely a chance to consider options fully- it could then be shown that children could validly consent to PBs.
However the court says, para 145, “The conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent. However, plainly the increased maturity of the child means that there is more possibility of achieving competence at the older age.”
Just in case a child who will revert is treated, they will prevent any trans child getting the treatment they need. The possible distress of the reverter at being childless matters to them. They can sympathise with it. The distress of the trans child, going through the wrong puberty, having the wrong body shape, is inconceivable to them.
The hate group “Transgender Trend Ltd.,” which incites children and teachers to bully trans children, was allowed to stick its nose in, and instructed two barristers. Work needs to be done on how these hard-right organisations get their funding. Their barrister made a particularly damaging point, quoted at para 132.
The NHS has responded. The GIDS must not refer a patient to the endocrine clinic unless a court makes a “best interests” order for the patient. The GIDS must review all patients currently on PB or CSH, and if they decide it is in the patient’s interest to continue they must make an application for a “best interests” order. Some trans children may lose their treatment because of this case.
Megan Talbot, associate lecturer in law and criminology at Aberystwyth University, has a more optimistic view. After her “pet peeve”, I give the full citation of the case, which is R (on the application of) Quincy Bell and A -v- Tavistock and Portman NHS Trust and others  EWHC 3274 (Admin)