When the final report of the Cass Review was published, the UK government restricted the prescription of puberty blockers to under 18s in England and Wales. The NHS changed its own policies in light of the findings of the review and the Secretary of State for Health and Social Care, Victoria Atkins, made an emergency order to restrict the provision of puberty blockers by private prescription to new patients. The order is temporary, operating from 3 June 2024 until 3 September 2024, but Wes Streeting, the new Secretary of State for Health and Social Care, has committed to maintaining the restriction after September. 

Transactual, an advocacy group acting with an anonymous claimant, YY, described as a young trans person sought to challenge the lawfulness of this order. They were supported by the Good Law Project. This week, the High Court has ruled that the emergency order was lawful. 

Core to the attack on the order was the claim that the Cass Review did not explicitly recommend the restriction of puberty blockers from all overseas providers and did not conclude that puberty blockers cause serious damage to health. Rather, it concluded that there was not enough evidence to know whether they were safe or not. This indicated that there was no rational basis to conclude that it was essential and necessary to take immediate action. From here, Transactual argued that, while the Health Secretary was entitled to take a precautionary approach with regard to the NHS, she should have engaged in wider consultation before restricting the availability of puberty blockers in the private market. 

In response, the UK government argued that the Cass Review provided ample evidence to conclude that vulnerable young people were being put on medical pathways that had substantial, albeit unquantified, risks and no or very limited clear benefits. The Cass Review recommended that puberty blockers should only be prescribed as part of clinical research and made significant findings about the substantial risks associated with the use of puberty blockers. It did not make a recommendation regarding the restriction of puberty blockers in the private overseas market because that was not within the scope of the Review. Nevertheless, the findings of the Review as to the risks posed by the prescription of puberty blockers provided sufficient evidential foundation for the Secretary of State to conclude that it was necessary to restrict their availability in the private market. 

The High Court’s Conclusions

The first point that the Court made here is that in any assessment of whether a restriction on the supply of puberty blockers is necessary in the interests of safety, and whether they present a serious danger to health, one is entitled, and indeed required, to consider the potential risks. Where medicines have been licenced, these risks have already been quantified and balanced against potential benefits, as for example in the use of puberty blockers to treat precocious puberty. But the Court noted that puberty blockers have also been prescribed off-label and are not licensed for treating gender dysphoria in children and young people. Such usage involves administering these drugs to prevent natural puberty and give rise to significant risks that do not occur when used to treat precocious puberty and when treatment ceases when a child has reached the typical age of puberty. 

The Court concluded that the Secretary of State was entitled to adopt a precautionary approach when making a judgment as to the acceptable level of risk in contexts of considerable uncertainty where the health of vulnerable children is at stake. These decisions are complex, and Parliament has entrusted the Secretary of State with the authority and responsibility to decide. The Court stressed that its role is to apply anxious scrutiny to this assessment but that it should exercise restraint in acknowledgment of the discretion afforded to the Health Secretary before second-guessing her judgment. 

The Court explicitly rejected the argument that the Health Secretary should have commissioned bespoke clinical advice before making the order because the Cass Review did not provide sufficient evidence upon which to base the order. It was adamant that “the Cass Review conducted an intensive review of existing research and commissioned further research, over a number of years”. It received a high level of clinical input, consulted extensively with those affected by healthcare decisions in this area and drew upon an independent research overview conducted by the University of York. As such, the Court concluded that the Health Secretary “was entitled to conclude that the Cass Review was the best and most up-to-date scientific evidence available, and further research on the effects and safety of puberty blockers for children and young people was not required.”

The Secretary of State acted reasonably and lawfully. The order was based on the best available evidence

The Court then considered the claim that failure to provide puberty blockers would lead to a rise of suicide. It drew upon the Cass Review and noted that “suicide risk in the cohort of children and young people with gender dysphoria remained comparable to other young people with a similar range of mental health and psychosocial challenges, and the evidence did not support the conclusion that gender-affirming treatment reduced suicide risk”. This conclusion was recently supported by an independent review of suicides and gender dysphoria. 

Ultimately, the Court concluded that “the Cass Review’s findings about the very substantial risks and very narrow benefits associated with the use of puberty blockers, and the recommendation that in future the NHS prescribing of puberty blockers to children and young people should only take place in a clinical trial, and not routinely, amounted to powerful scientific evidence in support of restrictions on the supply of puberty blockers on the grounds that they were potentially harmful.”

The Secretary of State acted reasonably and lawfully. The order was based on the best available evidence and it was entirely open to the government to take a precautionary approach given the identified risks and lack of clear benefit to a cohort of vulnerable children that deserve the best available healthcare informed by evidence not ideology.