The decision of the High Court in Bell v & anor v The Tavistock & Portman NHS Foundation Trust & ors [2020] EWHC 3274 (Admin) has given rise to both jubilation and outrage. Detransitioners and their gender critical allies feel vindicated by judicial recognition that treatment of children with puberty blockers is experimental and dangerous; trans activists characterise the decision as an attack on the fundamental rights of all trans people.
The Court’s decision
On the face of it, given the scope of the decision, both reactions are surprising. The court didn’t actually decide that Keira Bell had been rushed into treatment that she wasn’t able to understand, or order the Tavistock to pay her compensation for the permanent damage to her body caused by the treatment she received. It didn’t even order the Gender Identity Development Service (GIDS) at the Tavistock to stop treating children with puberty-blockers, or to change the information it gave them before it started treatment. What it decided was that teenagers under 16 will very rarely have capacity to give informed consent to treatment with puberty blockers, and children of 13 and under almost never. And that even in the case of young persons of 16 or 17, it may be necessary to seek court authorisation to proceed with treatment.
But children often receive medical treatment for which they lack capacity to give their own informed consent. An infant needing an operation can’t consent: its parents typically consent on its behalf. A child of primary school age may be able to argue more fluently than its parents would always wish, but still may not be equipped to weigh up the pros and cons of serious medical treatments. So what’s the big deal, if children lack capacity to consent to puberty blockers? Why can’t their parents just consent on their behalf, in the usual way?
The Tavistock’s policy
Paragraph 47 of the judgment quotes from a letter sent by the Tavistock’s lawyers in response to the initial threat of litigation:
Although the general law would permit parent(s) to consent on behalf of their child, GIDS has never administered, nor can it conceive of any situation where it would be appropriate to administer blockers on a patient without their consent.
In context, it is clear that they are not saying merely they wouldn’t administer blockers to a child who didn’t want them: but that they wouldn’t administer blockers except to a child who had capacity to consent on his or her own behalf to the treatment. In other words, the Tavistock’s own policy was (and is) that parental consent isn’t enough: the informed, effective consent of the child patient is required. That’s why the court’s decision that children will very rarely be able to give such consent matters so much: if the Tavistock won’t act on the basis of parental consent alone, then children won’t be treated unless either they can themselves validly consent, or a court decides that the treatment is in their best interests.
What’s special about treatment with puberty blockers?
The question I find interesting here isn’t really a legal question. It is this: what is it that’s special about treatment with puberty blockers that makes the Tavistock think that parental consent isn’t good enough? If a child needs a vaccination to reduce the risk of a potentially serious childhood disease, parental consent is good enough. If a child needs a filling to deal with tooth decay, or an extraction to deal with an overcrowded mouth, the same. If a child needs surgery to pin a broken bone, the same again.
Parental consent is good enough for most medical treatment because its necessity or desirability can be established by objective evidence. Tooth decay and broken bones can be seen with an x-ray; the risks of mumps, measles etc. (and the benefits of vaccination) are well-established by epidemiology. But if a child with the body of a girl says she is so sure that she is really a boy that she wants to be treated with puberty blockers to ensure that she doesn’t mature physically as a woman, there no blood test, no visible symptom, no scan, no x-ray that can confirm her condition. How are parents, teachers, therapists and doctors to know whether she is truly trans (assuming for the purposes of argument that there is such a thing – or if even if there isn’t, at least so intractably dysphoric that radical body modification offers her the best hope of a flourishing life); or temporarily caught up in a teenage craze; or expressing distress in response to childhood abuse, homophobic bullying at school, or a traumatic bereavement or abandonment, or the pervasive sexism and misogyny of the society in which she is growing up?
One might think that these were the kinds of difficult questions with which clinicians would grapple earnestly before agreeing to set children on a path to medical transition and lifelong patienthood. What’s going on here? What are the causes of this child’s dysphoria? What are her chances of growing out of it with natural puberty? If treated, what are the chances that she will later regret the treatment?
Astonishingly, one would be wrong. Even more astonishingly, it seems that the clinicians who have guided the development of the GIDS would not even regard these as valid questions. Bernadette Wren, Consultant Clinical Psychologist at the GIDS until her retirement in 2020, posed herself these questions in a 2014 paper:
Can ‘postmodern’ ideas about the non-fixity and instability of gender serve the perplexed clinician? Can we forego the grounding of our ideas in demonstrable certainties? Operating with a postmodern notion of gender, can the clinician justify irreversible physical intervention?
Thinking postmodern and practising in the enlightenment: Managing uncertainty in the treatment of children and adolescents, Feminism & Psychology 2014, Vol. 24(2) 271–291
In the abstract of the same paper, she writes:
In particular, how do we justify supporting trans youngsters to move towards treatment involving irreversible physical change, while ascribing to a highly tentative and provisional account of how we come to identify and live as gendered? I conclude that the meaning of trans rests on no demonstrable foundational truths but is constantly being shaped and re-shaped in our social world.
[emphasis supplied]
This is consistent with Wren’s understanding of postmodernism, of which she says:
It argues that we cannot properly speak of objective and universal truths because it recognises that we can never stand outside the conceptual frameworks we are trying to explain.
In a later article Debate: You can’t take politics out of the debate on gender-diverse children, Wren candidly admits that there is little reliable evidence to draw on when making decisions about the treatment of gender dysphoric children:
In this field of practice… studies are still few and limited in scope, at times contradictory or inconclusive on key questions. Professionals and families must navigate the options with limited reassurance about how to proceed in the face of changing and challengeable clinical evidence.
Child and Adolescent Mental Health 25, No.1, 2020, pp.40-42
But that does not seem to her to be a reason not to give young people what they ask for:
[U]nder UK law, we have increasingly come to think that enabling young people to experience some forms of self-determining freedom is a social good (Alderson, 2017), an idea interlinked with the thesis that a measure of authentic self-knowledge can be achieved, even by children and adolescents. This is the permissive culture in which young people – including those who are gender diverse – may be allowed considerable freedom to make their own mistakes. Besides, young people today are entering an era of medical care when intervention on and into the body becomes increasingly commonplace. Twenty-first century medicine offers treatments that are supportive of identity projects as well as responsive to pathology.
[emphasis supplied]
Alarming though this is, it does at least make perfect sense of the GIDS’ unwillingness to accept parental consent as a substitute for the young person’s consent when treating children or adolescents with puberty-blockers: to do so would be fundamentally at odds with the philosophical underpinnings of the service. Parental consent would be rendered acceptable by a firm evidence base for the treatment proposed. But puberty blockers are not provided because there is convincing clinical evidence that they are needed (or even likely) to alleviate distressing symptoms or effect a full or partial cure for a pathology: on the contrary, it is admitted that the evidence base for treatment is thin tending to non-existent. The conclusion to the 2014 article that “the meaning of trans rests on no demonstrable foundational truths” goes further, suggesting that even a search for such evidence would be misconceived. Instead, treatment is provided because children and young people – who should be enabled to experience self-determining freedom, including the freedom to make their own mistakes – ask for it.
No evidence of benefit
It makes an alarming kind of sense of something else, too. The court in Bell repeatedly expressed surprise at the Tavistock’s inability to provide evidence about the effects and outcomes of treatment with puberty blockers, noting – in particular – at paragraphs 23 and 24 that it hadn’t been provided with the results of a research study started some nine years earlier at the Tavistock, which it had requested but been told was unavailable because one of its authors had yet to respond to issues raised in the peer review process. On the face of things, that was quite extraordinary: the study was centrally relevant to the matters discussed in the judicial review, and even if it was still going through the lengthy process of peer-review and hadn’t been finalised for publication, it undoubtedly existed in a near-final form which could have been provided to the court had the Tavistock chosen to provide it. (It was finally published on the day the High Court’s judgment was handed down.)
But if the service was run by postmodernist-leaning clinicians who regarded “truth claims” with suspicion and saw their task not as relieving the suffering of patients with distressing pathologies, but instead as facilitating their young clients in the pursuit of identity projects, what use would they have for clinical evidence?
Friendly fire from the Good Law Project
The Good Law Project on its crowd-funding page Legal Defence Fund for Transgender Lives announces a proposed challenge to the Tavistock’s policy:
The Tavistock will be invited – or sought to be compelled – to review its position in relation to whether to accept parental consent. In practice success on this action would remove, in many or most cases, the practical barrier to reatment posed by the Bell decision.
If the Good Law Project gets the High Court’s permission to pursue this, the likely result will be that the Tavistock is forced to explain – in detail, and in public – the reasons why it “cannot conceive of any situation in which it would be appropriate to to administer blockers on a patient without their consent.” That will shine further light on the absence of any convincing evidential basis for these treatments, and on the startling philosophical underpinnings of the GIDS’ practice. It promises to be a bruising encounter for both parties.
With thanks to Heather Brunskell-Evans’ Transgender and Body Politics, Spinifex 2020 for alerting me to Bernadette Wren’s writing.
