Trans children can be treated for their gender dysphoria, says the Court of Appeal. This is a huge relief to parents and children. It is for the NHS to decide whether the treatment should be available at all. It is for doctors, parents and children together to decide whether puberty blockers should be taken in individual cases. The courts cannot set out how doctors should approach future cases.
The case of Gillick established children under 16 could make their own decisions about treatment if the doctor thought they were mature enough to do so. At the time, contraceptive treatment for children was controversial. The Court of Appeal restores the ability of mature, competent children under 16 to make decisions for themselves, supported by their parent and doctors. This affects all children and all treatment, not just puberty blockers.
There are eleven million children in Britain. In 2019, 2519 were referred to the Gender Identity Development Service, GIDS. They faced a delay of up to two years before assessment. Of the children assessed in 2019, 161 were referred for puberty blockers.
The High Court had accepted the evidence produced by the anti-trans campaigners, even though it was controversial. They decided that when adolescents started puberty suppression, only 1.9% did not go on to cross sex hormones. Even if that were true, it could have been because the children were truly trans and properly consented. It did not apply to patients of the GIDS. 1648 patients were discharged in 2019/20, and of a random sample of 312 of them, 16% (49 children) had been referred to endocrinologists for puberty blockers, but only 55%, 27 children, were approved for cross-sex hormones. Two of the 49 did not commence treatment, and five were discharged without being referred to adult gender services (so would not get CSH on the NHS).
So a tiny proportion of those who will eventually transition happily were referred to GIDS, and of those only a few were treated. The system shows great reluctance to treat trans children, and the courts should not impose more. The doctors prescribe puberty blockers to alleviate the current distress of gender dysphoria. The children and parents seek it in order to avoid the characteristics of the assigned sex, and gain the characteristics of their true sex: allowing this is the way the distress can be relieved.
Doctors and parents together assess whether a child can understand to consent to treatment. It’s hard to see what a judge or other lawyers could add. The legal question is fairly simple: does the child understand the treatment, and does the doctor consider it is in the child’s best interests. The judge does not know the child better than the doctor does. So a court application might forestall a future legal challenge to the decision, but cannot give additional certainty that the decision is right, only delay, worry and expense.
The High Court gave guidance on when treatment might be permissible. The Court of Appeal said the High Court could not do that. At para 56 they quoted Lord Scarman in the Gillick case, saying a legal rule giving certainty about when a child could consent would be inflexible and could obstruct justice. If such certainty is necessary it should come from legislation after a full consideration of all the relevant factors. Courts only hear the evidence brought by parties to a particular case.
They quoted the House of Lords in Burke’s case: “The court should not be used as a general advice centre”. It should not make wide-ranging decisions about difficult ethical questions, only about the particular question between the parties.
The NHS had given detailed rules on the management of the GIDS, including when puberty blockers might be prescribed. The High Court had found these rules to be lawful. Therefore, there are restrictions on the evidence the court in a judicial review could hear. The anti-trans campaigners had lodged their expert evidence late. They never sought permission to lodge it. The Court of Appeal said in a judicial review the court would usually prefer the evidence of the defendant.
The High Court had gone beyond what a court should do. Keira Bell has made unguarded comments about appealing, and anti-trans campaigners will continue to attack the GIDS by any means available, but it appears this particular attack has failed for now.
This is a feminist victory. The Gillick case, which enshrined children’s rights to necessary contraception and abortion, is safe for now. Feminism wins when in alliance with LGBT+. Everyone loses when “feminists” or “LGB” split from LGBT+ rights.
The decision.
Clare Flourish 