Trans children who were receiving puberty blockers before the Bell case can continue getting them if the parents consent. This win is thanks to the Good Law Project’s Trans Defence Fund.
Dame Nathalie Lieven was one of the judges in the Bell case, and says that nothing she says departs in the smallest extent from the Bell judgment. Rather, she has decided that where a child was receiving puberty blockers (PBs) before the Bell judgment, and the parents consent to continue, the NHS can prescribe them on the basis of the parents’ consent.
How else might it be managed? The court could appoint CAFCASS, the Children and Family Court Advisory and Support Service, to prepare a detailed report and the judge would make a decision based on that. It is hard to see how social workers could add anything when parents, doctors and the child involved all wanted to go ahead with treatment. A social worker would be no better than a psychiatrist in judging a child’s maturity and understanding. In this case, CAFCASS was not appointed.
The Bell case still stands, and when it is appealed in June 2021 the “expert” testimony, brought by the anti-trans campaigners, will stand. The court’s findings about the psychology of trans children are findings of fact, which the appeal court will not challenge. GIDS, the Gender Identity Development Service, should have led better evidence, and does not get a second chance.
Before the Bell case, GIDS prescribed PBs on the basis of the child’s consent. The Bell case decided the child was not capable of consenting.
XY was registered at birth as a boy. She is 15. She had always only been interested in girls’ toys and clothes. At primary school she tried to conform to a more male stereotype, but became withdrawn and miserable. She came out to her parents as trans aged 10. Once she transitioned socially at school her confidence grew, and she became much happier. She changed her name by deed poll in 2016, and had seven assessment interviews with GIDS, who also saw her parents, together and separately.
She has never been diagnosed as having an unresolved mental health issue, and she is not autistic, the judge says. An autistic child will face greater barriers to getting the PBs s/he needs.
XY’s Mum, AB, did extensive research on PBs. She was fully aware of potential side effects. The girl started on PBs in July 2019, when she was 13 and had commenced puberty, because the parents did not want her taking unnecessary medication, but the puberty changes were causing considerable distress. They decided not to undertake fertility preservation. At any point before she starts CSH, cross sex hormones, she can stop PBs and freeze sperm, but that would involve developing male secondary sex characteristics. She and her parents have continued to attend GIDS.
The girl’s GP has continued to prescribe PBs. Some other children’s GPs have not. The anti-trans campaigners, represented by Bell’s solicitors, attempted to butt in but failed, in part to protect XY’s anonymity.
The court asks, can the parents consent to PBs, and are PBs in a special category of medical treatment requiring an application to the court?
Parents have a duty in English law to protect their children. Courts can take children away or make decisions for the children, instead of the parents, if it is in the child’s “best interests”, but do not do so lightly. Doctors ask parents to make the most serious decisions about their children’s medical treatment.
The Bell case made it considerably more difficult to demonstrate that a child was capable of consenting to medical treatment, especially PBs. GIDS did not make a further assessment of whether the girl was competent to consent to PBs, so the court treated that question as undecided. If the child was still able to make their own decision, even after the restrictions imposed by Bell, could the parents’ consent be relevant?
Here, the court decides that where the child is capable of consenting, the parents cannot override the child’s decision. But they still have a duty to make a decision in the child’s best interests where the child cannot or will not decide.
The judge says the doctor can rely on the parents’ consent, because the child has not objected to it. I find it inconceivable that GIDS would prescribe CSH or PBs when the child was not enthusiastically in favour. But there has been no further assessment, by the court, social workers, or psychiatrists whether the girl is capable of consent as defined in the Bell case, so the child’s ability to consent is unclear. In that case, where the child and parents both consent, and treatment has started already, the doctors can prescribe PBs.
The court considered whether the Bell case as it stands makes PBs a special category of medical treatment which requires court authorisation, or where it is good practice for doctors to seek court authorisation. Whether it is good practice should be an issue of medical ethics for the General Medical Council. However the law depends on a line of cases on sterilization, where a pregnancy would be disastrous and contraception was not possible. Some of those cases related to women over 18, where parental consent would be irrelevant.
The court looked at two Australian cases. Previously, parents and trans children seeking PBs or CSH had to seek court approval, but after Kelvin’s case, they do not. An Australian judge said loving, caring and committed parents who are intimately aware of their children’s difficulties and deal with their concerns know their children better than a court ever will. They went the opposite direction from the English court in Bell.
GIDS pointed out they were subject to regulatory oversight, from the NHS and ethical rules. There is a review of GIDS looking at treatment of trans children, the Cass review, expected to report this year. The judge observes that whether PBs are therapeutic for trans children is strongly disputed by academic experts, and is a matter for research, not litigation.
The judge decided that PBs are not in a special category where the parents can not consent, and the matter has to come to court. The matter should come to court if the doctors think the parents are being pressured to consent or the doctors disagree amongst themselves. In practice one parent or one doctor can veto treatment, and it must come to court.
Children who had not started PBs before the Bell case are now restricted by NHS guidance.
Once a child reaches 16, the parents cannot consent for them. Bell, who was 17 when she started on T, passionately argued that she could not consent to it, and the law, at least for the moment, agrees. But children 15 or younger on PBs now can continue to get them, based on their parents’ consent, and the courts possibly will not interfere with the Cass review. It is a small win for trans children.
The Good Law Project described the case and published the judgment here.