Children under 16 who wish to undergo gender reassignment can only consent to having puberty blockers if they are able to understand the nature of the treatment, the High Court has said in a landmark ruling today.
Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before ‘detransitioning’, brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children.
The legal challenge was also brought by Mrs A, the mother of a 15-year-old autistic girl who is currently on the waiting list for treatment.
At a hearing in October, their lawyers said children going through puberty are ‘not capable of properly understanding the nature and effects of hormone blockers’.
They argued that there is ‘a very high likelihood’ that children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause ‘irreversible changes’.
Keira Bell outside the Royal Courts of Justice in central London in January. The 23-year-old, who began taking puberty blockers when she was 16 before ‘detransitioning’, brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children
Miss Bell (pictured as a five-year-old) had treatment which began at the Tavistock in London
Miss Bell took testosterone, which left her with a deep voice and possibly infertile, and had a double mastectomy – but later realised she had ‘gone down the wrong path’.
In a judgment today, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, said that children under 16 needed to understand ‘the immediate and long-term consequences of the treatment’ to be able to consent to the use of puberty blockers.
The judges said in their ruling: ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
‘It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.’
They added: ‘In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment.
‘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.’
In a witness statement before the court, Ms Bell 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.’
She added: ‘Transition was a very temporary, superficial fix for a very complex identity issue.’
The Tavistock and Portman NHS Trust (file picture) runs the UK’s first gender clinic in London
IT engineer Miss Bell is pictured outside the Royal Courts of Justice in London in January
In the judgment, Dame Victoria Sharp – sitting with Lord Justice Lewis and Mrs Justice Lieven, said their ruling was only on the informed consent of a child or a young person, not whether puberty blockers (PBs) were appropriate themselves.
The judges said: ‘The court is not deciding on the benefits or disbenefits of treating children with GD (gender dysphoria) with PBs, whether in the long or short term.
‘The court has been given a great deal of evidence about the nature of GD and the treatments that may or may not be appropriate. That is not a matter for us.
‘The sole legal issue in the case is the circumstances in which a child or young person may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained.’
At a High Court hearing in October, lawyers representing the claimants said there was ‘a very high likelihood’ that children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause ‘irreversible changes’.
The Tavistock and Portman NHS Trust – as well as University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospital NHS Trust, to which Tavistock refers children and young people experiencing gender dysphoria – argued that taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
But, in its ruling, the High Court said: ‘It is said therefore the child needs only to understand the implications of taking puberty blockers alone … in our view this does not reflect the reality.
‘The evidence shows that the vast majority of children who take puberty blockers move on to take cross-sex hormones.’
The court added that both treatments were ‘two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it’.
What is gender dysphoria?
Gender dysphoria is a condition in which someone becomes distressed because they don’t feel that their biological sex matches the gender they identify as.
For example, someone may feel like a woman and want to live as a woman, but have been born with the anatomy of a man.
Gender dysphoria is a ‘recognised medical condition, for which treatment is sometimes appropriate’ and is ‘not a mental illness’, according to the NHS.
People who live as a gender which is not the same as their biological sex are called transgender.
Some people may choose to have hormone therapy – for example, to make them grow hair or develop breasts – or to have reassignment surgery to give them the genitals of a person of the sex they identify as.
People diagnosed with gender dysphoria are allowed to legally change their gender.
According to the charity Stonewall, as many as 1 per cent of the population may be trans – although accurate numbers are not known.