Artillery Row

What does the child trans judgement mean?

Those who are invested in being ‘on the right side of history’ might like to reflect on yesterday’s judgement

On 1 December 2020, an important judgment was delivered in the case of Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) 

The question before the court was 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. The particular treatment being considered was the provision of gonadotropin-releasing hormone agonists (GnRHa) or ‘puberty blockers’ (PB) followed by cross-sex hormones (CSH) to allow a child to ‘transition’ from one sex to the other. 

In order to understand just how significant this case is, we need to put it in some historical context. The ‘trans child’ was decades in gestation. By 2018 he/she/xie was firmly established as a creature of both medicine and law. Any challenge to the inherent nature of ‘gender identity’ and the need to promote and respect it at every opportunity was deemed impermissible and seen as ‘transphobic’ and ‘hateful’. 

By the 1990s in the UK, parents of gender dysphoric children began to request hormone suppression at the first signs of puberty. This would enable a child to ‘pass’ more effectively as the opposite sex when an adult. By 2009 the Endocrine Society had new clinical practice guidelines which lowered the age for administration of hormones from 16 years to the first onset of puberty. This was despite the lack of any compelling evidence base regarding the long term consequences. The assumption and repeated mantra was that PBs were ‘reversible’ and ‘harmless’ – no debate. 

The judgment is an extremely welcome corrective

In 1997 the European Court declared in X, Y and Z v the UK (1997) 24 EHRR 143 that transexuality “raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States”. By 2018, such a statement would be seen as a declaration of transphobic hate. There was to be no challenge to the existence of the trans child. Any attempt at debate was re-framed as ‘literal violence’, a wish to ‘erase’, even murder trans people. Women, such as myself who attempted to challenge this narrative, risk losing their jobs or being recorded on a police database. 

In 2008, Department of Health guidelines advised ‘sex assigned at birth’ and the child’s ‘inner sense of knowing’ their true gender may not align. They also claimed that ‘gender variance’ in children can emerge at a very young age, identified in the ways children behave in their dress or play. Parents were urged to address their child’s gender variance as soon as possible in order to secure their future as a happy adult. Referrals to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust showed a staggering increase; from just 97 in 2009/10 to 2,519  in 2017/18

From 2014/15 to 2015/16, referrals increased by over 100% and from 2015/16 to 2016/17 they increased by 41%. Ages at referral seen by the service ranged from  3 to 17 years old. The majority of the children were registered female at birth. 

What was apparently born out of a desire to confront and tear down harmful stereotypes around regressive gender stereotyping, has instead become affirmation of the same, to the extent that if a boy wishes to play with ‘girl’s toys’ or wear ‘girl’s clothes’ he could not actually be a boy but was instead a girl born ‘in the wrong body’. Organisations such as Stonewall and Mermaids took up the role of ‘fighting for trans rights’ with alacrity and avidity, not least because it prompted a fresh surge in funding. Stonewall’s revenue increased from £4.33m in 2013, to £7.24m in 2017. 

From 1999-2019, as a family lawyer specialising in care proceedings (where the State seeks to remove children from parents who risk causing significant harm) I had not a single case involving a ‘trans child’. By 2020 I had two. It appears beyond doubt that what we are seeing here cannot be a genuine rise in the numbers of ‘gender dysphoric’ children – this is social contagion. 

So this was the context of the Bell / Mrs A case. Keira herself is a young female adult who had a traumatic childhood and began to actively question her gender identity as a teenager. She underwent significant medical and surgical intervention in pursuit of that belief, including a double mastectomy. Her testimony is powerful and deeply sad:

I started to realise that the vision I had as a teenager of becoming male was strictly a fantasy and that it was not possible. My biological make-up was still female and it showed, no matter how much testosterone was in my system or how much I would go to the gym. I was being perceived as a man by society, but it was not enough. I started to just see a woman with a beard, which is what I was. I felt like a fraud and I began to feel more lost, isolated and confused than I did when I was pre-transition … Transition was a very temporary, superficial fix for a very complex identity issue. 

The case was not about whether gender dysphoria existed or that it caused serious distress – this was agreed. The issue was rather whether or not children could consent to the treatment on offer. 

Perhaps sensing the winds of change, the NHS had already announced a review into such treatment

Consent is the necessary bedrock for all medical intervention. Those who lack capacity to consent – such as small children – must rely upon sensible adults to process the relevant information. Most children over 16 can consent to most things as if they were an adult; for younger children their capacity to consent has to be weighed in light of their age and understanding. A child younger than 16 with the necessary capacity may be ‘Gillick competent’ to make serious decisions. See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. 

It was clear that Bell, and many children like her, were victims of the prevailing orthodoxy of the ‘path of affirmation’. It is troubling to see the lengths to which some were prepared to go to preserve this path. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting:  

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.

Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock. In 2020 he wrote about why he resigned:

Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.

Despite the climate of fear created by those who insisted on ‘no debate’ supported by threats of sacking and no-platforming, more people found the courage to voice their growing unease. Dr Heather Brunskell Evans, visiting research Fellow at King’s College London has frequently pointed out that any alleged ‘gender identity distress’ is now occurring within a cultural context that has for decades promoted the ‘fantasy’ that it is possible to become the opposite sex and denied any challenge as something inherently ‘hateful’. 

To suggest a child under 13 could understand the implications of giving up their fertility is ludicrous

Such context prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ, and which is notorious for the high rate of complications

The court in the Bell case was troubled by the failure of the Tavistock to keep proper data, particularly with regard to the number of its patients who moved from puberty blockers to cross sex hormones, or the high proportion of  referred children who were on the autistic spectrum. The court commented, with delicate restraint, that this lack of data was ‘surprising’.

When considering if a child under 16 could consent, the court first examined the nature of the treatment. Given the uncertainty of its short- and long-term consequences, the limited evidence as to its efficacy, or indeed ‘quite what it is seeking to achieve’, it was rightly described as ‘experimental treatment’. Simply giving a child ‘more and more’ information about such experimental treatment, as the Tavistock did, could not enable informed consent. The court held:

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 PBs. 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

Some of those in court who heard the earlier submissions made, reported feeling deeply troubled to hear how the risks of such treatment – which include loss of adult sexual functioning and infertility – were explained to the children seeking it. For the year 2019/20, 26 of the 161 children referred were 13 or younger. The youngest was 10 years old. 

For children 16 or over, the situation is different, and they are presumed to have capacity. However, the court said something interesting, touching on the potential for future actions in tort and the spectre of damages, which may operate to concentrate the minds of clinicians a little more effectively when considering the reality of their patient’s consent: 

It is too late for Ms Bell, who will have to live with the treatment adults were happy to push upon her

We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case. 

Perhaps sensing the winds of change, the NHS had already announced a review into such treatment on 22 September, led by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health. The review intends to be wide-ranging in scope, looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. It sounds wonderful. It is, however, at least a decade late. 

Those who are particularly invested in being ‘on the right side of history’ might like to reflect on the judgement yesterday and consider what side of the line they are now on. It is too late for Ms Bell, who will have to live with the consequences of the medical and surgical treatment adults were happy to push upon her. But for the generations of children to come, it is hoped that now we will see decisions made in their best interests, rather than to affirm the ideology of adults or to justify the funding of their charities. 

To suggest that any child under 13 could realistically understand the implications for their adult self of giving up their fertility or ability to orgasm is ludicrous. The judgment is an extremely welcome corrective to what for years has appeared to be a wholesale abnegation of adult responsibilities towards children. No doubt many responsible believed they were doing the right thing; to promote inclusivity and diversity and ‘being kind’. 

I hope they will read this judgment with no small sense of shame and a resolution to do better. When what is under discussion is the lives and bodies of our children, then we must have debate. 

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