Dr Sandra Duffy comments on the English High Court ruling on children’s access to puberty blockers, the subject of today’s case summary.
The High Court this week handed down its judgment in the case of Bell v Tavistock NHS Trust, which case concerned a judicial review of the practice of the Tavistock Gender Identity Development Service in prescribing puberty-blocking medical treatments to persons under the age of 18.
Puberty blockers are hormonal medicine which delay the onset of normal puberty and stop the development of physical pubertal indicators. They are used for trans children, to spare them having to grow up in a body which does not match their gender identity, and cis children who undergo precocious puberty. Puberty blockers can be a lifesaving treatment for young persons who have suicidal ideation as a result of their changing bodies. Their effects on puberty indicators are completely reversible, however some questions around their effects on other physical factors like bone density and fertility are still under investigation.
Puberty blockers are often prescribed to children who receive a diagnosis of gender dysphoria from services like Tavistock GIDS. In many cases, those children go on to undertake further medical interventions such as hormonal treatments (CSH) as adults – however, it is exceedingly important to note that this is not inevitable.
The complainant in this case identified as a trans boy as a teenager and into young adulthood, although as an adult she now identifies as a woman. She claims that “I made a brash decision [in transitioning] 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. I cannot reverse any of the physical, mental or legal changes that I went through.” (83) She does not believe that she was competent to make those decisions as a minor (however, again, it is to be noted that the irreversible parts of her transition, such as her mastectomy, took place as an adult – minors do not receive gender-related surgery in the UK).
Minors are held to be competent to make medical decisions if they fulfil what is known as Gillick competence. This arises from the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986), in which a 16-year-old girl wanted to access contraception. The Court held that she could validly consent to the treatment “if she had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment.” (105) Gillick competence has been used for trans children accessing gender-affirming treatment.
However, the Court in Bell has restricted Gillick competence in the case of under-16s. Although the principle still applies, they state that “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 [puberty blockers]… 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.”
The list of factors that the Court believes a young person needs to understand in order to be Gillick competent are as follows:
“It follows that to achieve Gillick competence the child or young person would have to understand not simply the implications of taking PBs but those of progressing to cross-sex hormones. The relevant information therefore that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to PBs, would be as follows: (i) the immediate consequences of the treatment in physical and psychological terms; (ii) the fact that the vast majority of patients taking PBs go on to CSH and therefore that s/he is on a pathway to much greater medical interventions; (iii) the relationship between taking CSH may well lead to a loss of fertility; (v) the impact of CSH on sexual function; (vi) the impact that taking this step on this treatment pathway may have on future and life-long relationships; (vii) the unknown physical consequences of taking PBs; and (viii) the fact that the evidence base for this treatment is as yet highly uncertain.”
It is not impossible that a teenager would be able to answer to this list. However, it would be difficult to prove.
The Court’s reasoning includes the following excerpt:
“First, the clinical interventions involve significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons. The treatment involved is truly life changing, going as it does to the very heart of an individual’s identity. Secondly, at present, it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment. (148)
… In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take PBs. There is a real benefit in the court, almost certainly with a child’s guardian appointed, having oversight over the decision… As we have explained above, we consider this treatment to be one where the protective role of the court is appropriate… (149)
The problem is not the information given, but the ability of the children and young people, to understand and most importantly weigh up that information. The approach of the defendant appears to have been to work on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency. As we have explained above, we do not think that this assumption is correct.” (150)
There are likely to be a number of effects arising from this decision. In this section, I am expressing my own opinions.
Firstly, it is likely to cause a significant chilling effect on the prescription of gender-affirming hormonal treatments to persons under 16. The Court appears to use a reasonable-person standard that it is holding high above the heads of children (whether or not, in real life, they could meet it). With this, it will be harder for a child to be declared Gillick competent to receive puberty blockers. The “protective” role of the Courts is also a concern. Will court orders be required in the provision of puberty blockers to young trans people? This would cause significant delays in treatment and could potentially have deleterious effects on the mental health of the young people in question, both from the delay and the general difficulties of going through the scrutiny and stress of the court process. It is being reported that the GIDS is already contacting families of trans young people and cancelling their appointments.
Even for a decision regarding medical treatments, this is a particularly pathologised piece of jurisprudence. This blog post has tried to be trans-affirming in its expressions; however, in that, it does not follow the judgment itself. Transgender identity is referred to as ‘gender dysphoria’ all through, with the emphasis on its diagnosis as a psychological condition that people “suffer from”. There is no affirmation of the identities of these young people and no rights-based language. Transition is presented as a negative process which should almost be avoided if possible, rather than a series of interventions, many reversible, which can improve the lives of the people in question.
With regard to the correlation between children who take puberty blockers and adults who go on to take hormonal interventions, the Court seems to take the high correlation rate as an indicator that such advancement is inevitable, even including the effects of “CSH” on sexual function (etc) in their conditions for Gillick competence. This seems erroneous. Correlation is not destiny. Puberty blockers are reversible. Adult hormonal treatments are not inevitable. It does not seem entirely justifiable to say that one MUST understand the effects of adult hormonal treatments at age 13 when one must be at least 16 to make the informed choice as to whether to begin those treatments.
Lastly, and most concerningly, this case may have ripple effects for other questions of the bodily autonomy of minors. What happens now to a 14-year-old presenting needing an abortion? Is she to be taken to understand the “lifelong consequences” of her decision, or is the standard for Gillick competence to be raised on her too? If so, there is a human rights violation in the waiting for minors needing reproductive healthcare and it seems inevitable that this will end up before the Courts.
- Dr Sandra Duffy is an Irish legal academic and a teaching associate at University of Bristol Law School. This article first appeared on her blog.