The child trans judgement is a step in the right direction
The ruling that under 16s should be assumed unable to consent to puberty blockers means that this unregulated experiment may finally be drawing to a close
On 1 December, the High Court of England and Wales ruled that children are not capable of giving informed consent to puberty blockers for the treatment of gender dysphoria. The case was brought against the Tavistock and Portman Trust Gender Identity Development Service (GIDS) by Keira Bell, a young woman who had received puberty blockers, and a second anonymous woman who is concerned that her 15-year-old daughter may be treated similarly.
Following testimony from experts, as well as from transgender people who believe themselves to have benefitted from puberty suppression, the ruling found that under 16s should be assumed not to have capacity to consent. This was for two reasons: firstly, the life-changing consequences of puberty blockers; and secondly, their experimental nature, with potentially very significant unknown side effects, and little evidence of long-term benefits.
Stating that, without access to puberty blockers, a wave of suicides is likely is unrealistic and irresponsible
As a gender dysphoric teenager, Keira Bell was prescribed puberty blockers at 16, followed by testosterone at 17, and had a double mastectomy at 20. Bell is not alone: the numbers of teenage girls undergoing such interventions have risen sharply over the last decade. Now aged 23, she believes this treatment was inappropriate and harmful, and that the counselling she received prior to medical intervention was inadequate. In the four sessions of counselling she was given, Bell recalls being asked such things as whether she liked wearing “boy’s clothes”, rather than any attempt to explore the roots of her feelings of discomfort with her body.
“Puberty blockers” belong to a class of drugs called GnRH agonists. These block the action of gonadotropin-releasing hormone, which controls the release of sex hormones from the ovaries or testicles and from the pituitary gland in the brain. These drugs were first used for the treatment of hormone sensitive cancers; they are also part of the intensive drug regimen involved in IVF and are sometimes used for the “chemical castration” of sex offenders. Usage in children is licensed for rare cases of early onset puberty, although whether this treatment is beneficial is an area of controversy within the medical community.
Beginning in the Netherlands in the 1990s, these drugs have also been prescribed for the suppression of puberty in children and adolescents with gender dysphoria. This usage of GnRH agonists is “off-label”: they have not been subject to clinical trials and found to be safe and effective for that particular purpose.
The original rationale for their use was that, by preventing further development of secondary sex characteristics, puberty blockers result in a preferable cosmetic result following cross sex hormones and surgery, with an appearance closer to the target sex. Lately, patients as young as 10 have been prescribed puberty blockers. Now they are described as a “pause button” that allows patients more time to consider their future treatment, while alleviating psychological distress associated with the unwanted physical changes of the “wrong” puberty.
However, this comes at a cost – a child treated with puberty blockers prior to cross-sex hormones will very likely be infertile and may have reduced sexual function, because the genitals and sperm or eggs have not had the chance to develop. In addition, given what we know about the significance of puberty for the normal maturation of many bodily systems, it is very likely that its suppression could have unforeseen physical or psychological side effects. Despite this, the GIDS have not published any formal long term follow up of their patients who are treated in this way.
A key finding of the judicial review was that the vast majority of those treated with puberty blockers do go on to be treated with cross sex hormones. In practice, puberty blockers are not a “reversible pause button”, but rather represent the first step in a medical pathway that few come off. The blockers themselves, by preventing psychological maturation, are also likely to have implications for the child’s capacity to make further decisions about cross sex hormones. The judges concluded that the ability to consent to puberty blockers also requires that a patient can understand the consequences of this subsequent step.
That blockers have been used for decades does not in itself prove safety or effectiveness
The judicial review found that these are life-changing consequences that under 16s are very unlikely to fully grasp. At the hearing Professor Sophie Scott, director of the Institute of Cognitive Neuroscience at University College London, said “it is my view that even if the risks are well explained […] in the light of the scientific literature […] it is very possible for an adolescent to be unable to fully grasp the implications of puberty-blocking treatment.” The judges agree: “There is no age-appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.”
Evidence supporting the purported benefits of puberty blockers is extremely sparse. A study published in early 2020 that reported reduced odds of suicidal thoughts in teens treated with puberty blockers has been widely circulated as proof that puberty blockers save lives. However, very significant methodological flaws – for instance, the study assumes that puberty blockers were available in the United States several years before they actually were – call the results of this study into question.
The GIDS’ own website states that, thankfully, suicide among young people with gender dysphoria is “extremely rare”. This is confirmed by statistics released in a Freedom of Information (FOI) request, made in early 2020, which recorded no deaths by suicide among the Tavistock GIDS’ patients, or among those on their waiting list (4220 patients, as of December 2019), in the period 2018-2020. The mental health of young people experiencing gender dysphoria is certainly poorer than the population average. However, stating that without access to puberty blockers, a wave of suicides is a near certainty, or even a likely prospect, is both unrealistic and irresponsible.
Despite this, following Tuesday’s judgment, Susie Green, the CEO of Mermaids, a charity that supports transgender youth, referred to puberty blockers as “literally life-saving treatment that is now being denied”. She predicted an “inevitable rise in suicidality and self-harm” resulting from restricted access to puberty blockers. Many young people currently taking puberty blockers or hoping to do so in the future will doubtless be frightened and confused by Tuesday’s ruling. This hyperbolic language, suggesting that suicides are an “inevitable” result, is unlikely to be helpful to those whose interests Green represents.
Green also denied that puberty blockers are an experimental treatment, saying that they have been used for 30 years (the first recorded usage to treat gender dysphoria in adolescence was published in 1998). Even so, a study published this year on the subject of puberty blockers states: “Longitudinal clinical trials are needed to better understand the efficacy of pubertal suppression”. That blockers have been used for decades does not in itself prove safety or effectiveness; the fact that no high-quality evidence has been produced during this time simply demonstrates that this experimental treatment of young, vulnerable people, has been happening for a long time and with little to show for it.
The judgement made it clear that it was not explicitly for them to decide whether treatment with puberty blockers was effective. There were however some striking expressions of “surprise” at the quality of evidence offered by the Tavistock – or the lack of it.
This ruling may open the door to medical negligence claims from others who were treated in this way
The Tavistock were unable to provide the age distributions of patients treated with puberty blockers per year between 2011-2020. They were unable to provide statistics on the proportion of patients referred for puberty blockers with diagnoses of autism (rates of which are consistently high among adolescents referred to gender identity clinics, compared to the general adolescent population). They were unable to provide information on the number of patients who, having received puberty blockers, go on to receive cross sex hormones while under their care. Belying their own claim that all children are carefully assessed for the ability to make informed decisions, they were unable to produce statistics detailing whether any child had ever been deemed incompetent to consent to puberty blocking treatment.
The Tavistock can hardly have been caught by surprise by these specific requests for evidence. An internal report in 2005 included calls for long-term patient follow up and data collection and analysis of its patients. Susan Evans, a psychotherapist and psychiatric nurse who worked at Tavistock clinic, resigned and became a whistle-blower over the use of puberty blockers over a decade ago. She told us, “I have felt all along that [puberty blockers] should not be the frontline treatment. Assessment and therapeutic work should be in place for everyone, and the majority of these children, if they are supported, will desist.”
Newsnight has been investigating and reporting on the Tavistock for at least 18 months. The questions put forward by the judges have been asked before by journalists, academics, and clinicians. And yet still, the Tavistock were caught out. As the judges said, “we find it surprising that such data was not collated in previous years given the young age of the patient group, the experimental nature of the treatment and the profound impact that it has.”
The ruling does not preclude puberty blockers for under 16s, but rather states that the assumption should be non-capacity to consent. In its conclusions, the judgment stated: “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.”
Implementation of the ruling has been delayed until 22 December pending a potential appeal from the clinic. If appeals fail, under 16s will no longer be prescribed puberty blockers in England and Wales unless a court rules that it is in their best interests. All current patients under 16 will have their treatment reviewed, and their continuing treatment with puberty blockers will require the Court’s approval. This ruling, that under 16s are unlikely to have the capacity to consent to treatment with puberty blockers, may open the door to medical negligence claims from others who were treated in this way. This particular unregulated experiment may finally be drawing to a close.
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