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On 1 December 2020, a High Court judgment against Tavistock and Portman NHS Trust found that children under 16 are unlikely to be able to give informed consent to puberty-blocking treatment. One judge stated, ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers…’ and… ‘It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and blockers.’¹ The Tavistock and Portman NHS Foundation Trust, University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust sought permission to appeal the court judgment and are undergoing a clinical review of patients currently undergoing endocrine treatment and those awaiting treatment.

At the time of writing*, existing treatment is continuing, unless a patient decides to withdraw, or if a court decides it is not in their best interests, although new referrals to endocrinology are on hold.² What does this mean for young transgender people and those experiencing gender dysphoria? And what are the wider implications for consent and competency?

Four contributors aim to address these questions, and others, from their own perspectives and areas of expertise.Ìý

References

1 Puberty blockers: under-16s ‘unlikely to be able to give informed consent’. www.bbc.co.uk/news/ uk-england-cambridgeshire- 55144148 (accessed 5 January 2021).
2 Update on GIDS Judicial Review and timetable for clinical reviews, 22 December 2020. https://gids.nhs.uk/ node (accessed 5 January 2021).

Defending Gillick

The court decision in the judicial review of the Tavistock Gender Identity Development Service (GIDS) represents the first major challenge to the Gillick decision for over a decade.¹ In 1986, the House of Lords ruled that young people in England and Wales, under the age of 16, could consent to medical treatment without parental knowledge , or consent, provided they demonstrated ‘sufficient understanding’.² This paved the way for young people under 16 to access counselling on a confidential basis, without needing parental permission³ (young people aged 16–17 years are presumed to be able to consent to confidential medical treatment under section 8 of the Family Law Reform Act).⁴

The latest ruling has determined that children under 13 are considered ‘highly unlikely’ to ever be able to consent to puberty-blocking drugs, and that it is ‘very doubtful’ that young people aged 14–15 would be able to consent to such treatment.¹ The judges decided this on the basis that puberty-blocking drugs, which tended to lead to the prescribing of cross-sex hormones, constituted an experimental and ‘quite possibly, unique’ medical treatment, with limited research as to its longer-term effects.¹ Sixteen to 17 year olds would be able to access treatment, with the permission of the courts, if there was any doubt about it being in their best interests. This is a very carefully argued legal decision. The Tavistock, criticised in terms of clinical audit with regard to apparent gaps in record-keeping, is thought to be considering an appeal.⁵

So, is this the writing on the wall for the Gillick decision? The answer, perhaps surprisingly, is that the case actually confirms the centrality of the Gillick decision within English and Welsh law.6 The claimants bringing the case for judicial review argued that young people under 18 lacked capacity, ie they were not capable at all of giving their consent to treatment for gender dysphoria. The judges did not accept this argument. Instead, they focused on whether young people under 16 could meet the requirements of Gillick competence. Hence, they started from the premise that Gillick was the appropriate standard to decide the issue, rather than seeking to dislodge it as the key reference point in law. This may seem a somewhat subtle legal point, but it is crucial to understanding the real significance of the decision. Essentially, the judges decided that young people were not competent, in either cognitive or emotional terms, of making a life-determining decision to start treatment to change their gender. This remained the case even if clinicians carefully explained the longer-term effects on their future fertility and sexual functioning, and even if the young people received full parental and medical support. However, this decision is fully consistent with earlier court decisions setting limits to young people’s autonomy in the medical sphere. For example, the courts have previously overruled a girl aged 16 who refused consent to medical treatment for anorexia,¹ and another girl, aged 14, who refused consent, on religious grounds, to a critical blood transfusion.¹ The Tavistock decision therefore sits within this legal tradition of monitoring and setting clear limits to the ability of young people under 16, or under 18 on occasion, to make life-changing, and sometimes irreversible, medical decisions.

However, Gillick still remains the central reference point in deciding these issues, despite attempts to challenge it by interested parties. One such attempt to radically rewrite Gillick also took the form of judicial review in 2006. In the Axon case, claimants argued forcefully that, in the case of pregnancy in under-16 year olds, young people could retain the right to consent to a termination, but that parents must be informed, thus removing the young person’s entitlement to confidentiality.⁷ However, the judge rejected this argument, on the grounds that this would irreparably change the nature of young people’s decision-making, given that young people could always choose to involve their parents, if they so wished. In addition, removing the right of the young person to confidentiality would threaten the viability of sexual health services. In the judge’s words, ‘Gillick remains good law’.² In both the Axon case and the recent Tavistock case, it is crystal clear that the 1986 Gillick ruling remains central to English and Welsh law regarding children and young people.

References

1 R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others. www.judiciary.uk/ judgments/r-on-the-application-ofquincy-bell-and-a-v-tavistock-andportman-nhs-trust-and-others/ (accessed 13 December 2020).
2 Gillick v. West Norfolk AHA [1985] 3 All ER 402; [1986] AC 112. www.bailii.org/uk/cases/ UKHL/1985/7.html (accessed 6 January 2021).
3 Daniels D, Jenkins P. Therapy with children: children’s rights, confidentiality and the law. 2nd edition. London: Sage; 2010.
4 Family Law Reform Act 1969. www.legislation.gov.uk/ukpga/1969/46 (accessed 6 January 2021).
5 Information following the Judicial Review judgment, December 2020. https://gids.nhs.uk/informationfollowing-judicial-review-judgmentdecember-2020 (accessed 23 December 2020).
6 Royal College of Paediatrics and Child Health statement on the ruling in the judicial review, Bell v Tavistock. www.rcpch.ac.uk/news-events/news/ rcpch-statement-ruling-judicialreview-bell-v-tavistock (accessed 31 December 2020).
7 Axon R (on the application of) v Secretary of State for Health and Anor [2006] EWHC 37. www.bailii.org/ew/ cases/EWHC/Admin/2006/37.html (accessed 6 January 2021).

Bell-v-GIDS

Keira Bell began taking puberty blockers at 16 and had chest reconstruction surgery at 20.¹ In her early 20s, she became an anti-trans campaigner and is currently campaigning against the Memorandum of understanding (MoU) on conversion therapy for trans people,¹ a joint document signed by 20 health, counselling and psychotherapy organisations, including Ïã¸ÛÁùºÏ²Ê¾«×¼×ÊÁÏ. She is supported by a lawyer who uses similar arguments of ‘regret’ in his many anti-abortion cases.² I believe that Bell’s case against GIDS threatens the Gillick ruling and the autonomy of all adolescents.² Imagine that a newly devout Christian woman in her 20s, sued doctors for allowing her to have an abortion at 16 that she came to regret due to her religious beliefs. This analogy with abortion holds because of the life-long consequences of being denied access to it. A trans person could bear the permanent consequences of a misaligned puberty if it is not paused by blockers, while long-term studies found that regretting transition is rare.³

"Not all trans people want medical interventions, as their experiences exist on a spectrum"

Trans people have watched the Bell case aghast. Judges, ministers and journalists have repeated things, such as the myth that 80% of trans children ‘desist’,⁴ that social contagion or Rapid Onset Gender Dysphoria are genuine phenomena,⁵ that autistic children are at risk of mistakenly believing they are trans,⁶ that gender clinics ‘diagnose’ children as trans based on gender non-conformity,⁷ or that giving puberty blockers increases the chances of someone later choosing to take cross-sex hormones.⁸ These nonsenses endure because of entrenched societal biases, yet they have been disproved carefully, thoroughly and repeatedly. For example, the clinical outcomes for trans children who are put on puberty blockers and later go on to transition are highly positive.⁹ It is a lifesaving, well-researched and established intervention internationally.¹⁰ The reason so few who go on blockers change their minds is because the Tavistock is deeply conservative about prescribing them in the first place.⁶ In the year 2019–2020, just 95 under-16s were prescribed puberty blockers,¹¹ in a UK trans population estimated to be between 200,000– 500,000.¹² Some trans teens will not need them, but many are suffering in silence or being denied the treatment they are pleading for. Trans-affirmative approaches assert, ‘It’s OK to want medical treatment if that’s right for you, but only you can know what you need’.^7,11 Not all trans people want medical interventions, as their experiences exist on a spectrum. My message is simple: we need to listen carefully to young people and give adolescents appropriate rights and autonomy, in line with the Gillick ruling. And we need to unlearn the myths we think we know about trans young people.

References

1 Bell K. Protect gender dysphoric children from the affirmation model. www.crowdjustice.com/case/ challenge-innate-gender/ (accessed 22 December 2020).
2 Duffy N. UK’s biggest children’s charities including NSPCC and Barnardo’s unite in solidarity with trans kids and their right to healthcare. www.pinknews. co.uk/2020/10/07/barnardos -nspcc-transgender-kids- children-charities-high-courtpuberty-blockers/ (accessed 17 December 2020).
3 Wiepjes CM, Nota NM, de Blok CJM, Klaver M, de Vries ALC, Wensing-Kruger SA, de Jongh RT, Bouman MB, Steensma TD, Cohen-Kettenis P, Gooren LJG, Kreukels BPC, den Heijer M. The Amsterdam cohort of gender dysphoria study (1972–2015): trends in prevalence, treatment, and regrets. The Journal of Sexual Medicine 2018; 15(4): 582–590.
4 Temple Newhook J, Pyne J, Winters K, Feder S, Holmes C, Tosh J, Sinnott M, Jamieson A, Pickett S. A critical commentary on follow-up studies and ‘desistance’ theories about transgender and gender-nonconforming children. International Journal of Transgenderism 2018; 19(2): 212–224.
5 Ashley F. A critical commentary on ‘rapid-onset gender dysphoria’. The Sociological Review 2020; 68(4): 779–799.
6 Robdale E. You’re not trans… you’re autistic! www.disabilityarts. online/blog/emma-robdale/ blog-youre-not-trans-youre- autistic/ (accessed 12 January 2020).
7 Tavistock and Portman NHS. What does a doubling in referrals to our Gender Identity Development Service mean about how society’s view of gender is shifting? www.tavistockandportman.nhs.uk/ about-us/news/stories/what-does -a-doubling-in-referrals-to-ourgender-identity-developmentservice-mean-about-how-societysview-of-gender-is-shifting/ (accessed 19 December 2020).
8 Lambrese J. Suppression of puberty in transgender children. American Medical Association Journal of Ethics 2010; 12(8): 645–649.
9 De Vries ALC, McGuipacere JK, Steensma TD, Wagenaar ECF, Doreleijers TAH, Cohen-Kettenis PT. Young adult psychological outcome after puberty suppression and gender reassignment. Pediatrics 2014; 134(4): 696– 704.
10 Ashley F. Watchful waiting doesn’t mean no puberty blockers and moving beyond watchful waiting. The American Journal of Bioethics 2019; 19(6): W3–W4. www.judiciary.uk/ wp-content/uploads/2020/12/ Bell-v-Tavistock-Judgment.pdf (accessed 19 December 2020).
11 Government Equalities Office. Trans people in the UK. https://assets. publishing.service.gov.uk/ government/uploads/system/ uploads/attachment_data/ file/721642/GEO-LGBT-factsheet.pdf (accessed 19 December 2020).

Access to puberty blockers

I have huge concerns over the recent High Court ruling. That Bell regrets her decision to transition from female to male is heart-breaking, but the findings of this one court case are likely to have a negative impact on many transgender young people who need puberty blockers, hormone treatment and (later, perhaps) surgery. As a result of the ruling, individuals aged 16 or under no longer have access to puberty blockers without the intervention of a court case, anyone waiting for treatment has been put on hold and those already taking blockers must be reviewed.¹

You may imagine that booking an appointment with a gender clinic or gaining access to puberty blockers is as easy as booking a GP appointment. I speak from personal experience when I say, it really isn’t. There’s a very rigorous process where individuals essentially have to prove to several practitioners that they are transgender before being offered any medication and/or surgical intervention.² Assessments are carried out at every stage of the process, so the individual has ample opportunity to reflect on the changes happening to them, their body and their identity.² Puberty blockers are not new or dangerous. These drugs have been used for many years to stall early-onset puberty in all genders and are stopped once the child reaches the age when they would more naturally go through puberty.³ The difference with transgender young people is that puberty blockers are used to gain time to explore their identity before going through irreversible procedures.

"…not enough is being done … to fully support those whose gender sits somewhere between the binary of male and female"

Experiencing a puberty out of alignment with gender identity is traumatic beyond belief. I’m worried that the result of this case could portray the idea that transitioning is a dangerous thing that should be put off until adulthood. My specific concerns are:

• Given the increased risk of suicide in oppressed groups, some children may not live to see adulthood if gender dysphoria is not recognised and treated⁴
• The myth is that more people de-transition than they do and therefore we should prevent transition in the first place²
• That therapists may, having read misleading information, support the idea that transition is ‘wrong’ and this will affect client care and support
• That not enough is being done within the NHS or private gender clinics to fully support those whose gender sits somewhere between the binary of male and female.⁵

References

1 NHS England. www.england.nhs. uk/wp-content/uploads/2020/12/ Amendment-to-Gender-IdentityDevelopment-Service-Specificationfor-Children-and-Adolescents.pdf (accessed 7 January 2021).
2 Vincent B. Transgender health: a practitioner’s guide to binary and non-binary trans patient care. London: Jessica Kingsley Publishers; 2018.
3 The conversation. https:// theconversation.com/what-arepuberty-blockers-and-how-do-theywork-151384#:~:text=But%20 while%20treating%20gender%20 incongruence,too%20early%20 or%20too%20quickly (accessed 7 January 2021).
4 Barker MJ, Iantaffi A. Life isn’t binary: on being both, beyond and in-between. London: Jessica Kingsley Publishers; 2019.
5 Baines-Ball & Associates. https://bainesballcp.co.uk/ uncategorized/thinking-outsidegender-binary/ (accessed 7 Jan 2021).

Informed consent?

The conditions of Gillick¹ and the Age of Legal Capacity (Scotland) Act² are that a child under 16 must have the capacity to understand the risks and benefits of treatment before consenting to it. For a child in early to middle adolescence, this is something of a moveable feast. The part of the brain that responds to socio-emotional stimuli, such as the opinions of peers, can outstrip the cognitive-control network that is responsible for competent decision-making, creating a leapfrog effect. Development of the socio-emotional network is driven by puberty, while the maturation of the cognitive-control network takes longer and is driven by experience.³ Can a child, whose very essence is that of change and becoming, truly understand the reality of permanence? The High Court’s answer to this in Bell–v–Tavistock is ‘no’. A child’s capacity is moot, however, if we go back one step and consider what children are consenting to. In a decision hailed by an LGBT rights spokesperson as having a ‘…liberating effect on transgender people worldwide’,⁴ the World Health Organisation has reclassified gender identity disorder as gender incongruence, changing it from a mental illness to a sexual health issue.⁴ A search for gender dysphoria in both the National Institute for Health and Care Excellence (NICE) Guidelines and the Scottish Intercollegiate Guidelines Network (SIGN) returns a ‘no result’ response. It appears, then, that being transgender or experiencing gender dysphoria is not an illness. If it’s not an illness, how can there be a treatment for it?

"Can a child, whose very essence is that of change and becoming, truly understand the reality of permanence?"

Putting that bigger question aside for a moment, there are two rationales for the use of puberty blockers: one is ‘time to think’, the approach preferred by GIDS; the other is to eliminate the need for later surgery by pre-empting the development of secondary sexual characteristics. These are two very different trajectories; can we be certain a child has understood the distinctions between them? Prior to June 2020, the patient information sheet given to young people attending GIDS said that the effects of puberty blockers were fully reversible. Since that date, this has been revised to say, ‘…it is not known what the psychological effects may be [if puberty blockers are stopped]. It’s also not known whether hormone blockers affect the development of the teenage brain or children’s bones.’⁵ I wonder what further risks might be discovered or disclosed.

I am not questioning the value and importance of puberty blockers as a pathway to what the American Psychological Association refers to as ‘medical affirmation’ of being transgender.6 Instead, I am advocating for better understanding and answers to such questions as, ‘What are the long-term effects for children on their physical and emotional development?’ and ‘Why are a disproportionate number of girls and children on the autistic spectrum presenting with gender incongruence?’ The more we know, the better we will be able to support children who experience themselves as transgender.Ìý

References

1 Gillick v West Norfolk AHA. www.lawteacher.net/cases/ gillick-v-west-norfolk.php?vref=1 (accessed 11 January 2021).
2 Age of Legal Capacity (Scotland) Act 1991 S2(4). www.legislation.gov.uk/ ukpga/1991/50/contents (accessed 11 January 2021).
3 Steinberg L. Risk taking in adolescence: new perspectives from brain and behavioral science. Current
Directions in Psychological Science 2007; 16(2): 56.
4 Transgender no longer recognised as ‘disorder’ by WHO. www.bbc.co.uk/ news/health-48448804 (accessed 11 January 2021).
5 Bell v Tavistock. www.judiciary.uk/ wp-content/uploads/2020/12/ Bell-v-Tavistock-Judgment.pdf (accessed 11 January 2021).
6 American Psychological Association. What is gender dysphoria? www. psychiatry.org/patients-families/ gender-dysphoria/what-is-genderdysphoria (accessed 11 January 2021).

We should be mindful of the potential impact of the High Court ruling against Tavistock and Portman NHS Trust on young people who are being prescribed, or hoping to be prescribed, puberty blockers. In December 2020, there were over 4,600 young people on the waiting list for GIDS¹ and, for them, access to treatment will be lengthier and more complex. We should provide transgender young people with accurate information to equip them with realistic expectations about the availability of puberty blockers, and offer guidance on how they can access up-to-date information about their long-term effects from a medical practitioner. Legal and ethical questions, brought about by this case, relating to competency and consent to treatment are likely to reach far wider than the consideration of puberty blockers. If you would like to respond from your own perspective, please contact me at cypf.editorial@bacp.co.uk

References

1 https://www.farrer.co.uk/news-and-insights/bell-vtavistock-what-does-the-judgment-mean-for-organisationsworking-with-trans-and-gender-questioning-children/ (accessed 1 February 2021).

*article written January 2021