Introduction
Can children and young people give informed consent to being prescribed puberty blockers after a diagnosis of gender dysphoria? If so, what information do they need to give properly informed consent?
These were the important questions considered in Bell and Ors v Tavistock and Portman, with an interested party (NHS England) and interveners (UCH Trust, Leeds Teaching Hospitals Trust and Transgender Trend). It was heard, unusually for a judicial review, by three Judges including the President of the Queen’s Bench Division and a Lord Justice of Appeal.
The Claimants were a young adult who was prescribed puberty blockers by GIDS, and later cross-sex hormones, and a mother concerned about her daughter potentially being prescribed such drugs.The Defendant is the main clinic for the treatment of gender dysphoria in under 18s, known as “GIDS”. The NHS trusts who intervened are the hospitals which oversee the actual hormonal treatments, when patients are referred to them by GIDS.
What the Court was Not Deciding
This case has nothing to do with abortion in general, abortion for under 16s, or contraception. It has little to do with other forms of informed consent to medical treatment by under 18s, because of the very specific nature of gender dysphoria and its treatment. Gender dysphoria is a condition without physical manifestations, but treatment with puberty blockers causes physical changes that can be life-long and life-changing.
The court was not deciding whether puberty blockers for under 18s were a Good Thing or a Bad Thing. It was deciding whether GIDS’ own policy was lawful in light of the information and data available to GIDS.
Factual Findings Made and Facts Considered
The court considered witness evidence from many different people, including medical experts from GIDS, trans people under 18, and trans people over 18 who had previously been treated at GIDS.
In terms of GIDS’ own data and records, the court was clearly concerned that little systematic data was being recorded, considered and taken into account. For example, from 2011 to 2019, GIDS had no details of the ages of children and young people prescribed puberty blockers. It did not record co-existing conditions such as autism. It did not have data about the numbers of patients treated with puberty blockers who then went on to be prescribed cross-sex hormones or undergo surgery for dysphoria.
Surprising the High Court is not, in this context, a positive thing.
The court said more than once it was “surprised” that the Defendant did not collect this information. Surprising the High Court is not, in this context, a positive thing.
The court considered that the Defendant’s data and research did not distinguish between puberty blockers prescribed to younger children who were undergoing premature puberty, and puberty blockers prescribed for gender dysphoria to children and young people going through puberty at a normal age. The premature puberty use was the source of almost all the data in relation to puberty blockers.
On the Defendant’s own evidence, there was a paucity of data about the effects, benefits and disadvantages of treating gender dysphoria by puberty blockers. The UCL study which started in 2011 has still not published full peer-reviewed results. The court asked for such results, but did not receive them.There are not, apparently, any other comprehensive studies into such treatment. The interim paper produced by Dr. Carmichael, head of GIDS, “noted that there was no overall improvement in mood or psychological wellbeing using standardized psychological measures.”
For all these reasons, the court considered that the prescription of puberty blockers to those of a standard age for puberty as treatment for gender dysphoria was experimental.
The court also considered that the evidence, while not complete, indicated that a very large percentage of children and young people prescribed puberty blockers went on to take cross-sex hormones later. So a child’s consent to take puberty blockers could not be informed consent without an understanding of the overwhelming likelihood that it would lead to taking cross-sex hormones afterwards, and an understanding of the consequences of that decision.
The court considered, on the basis of the Defendant’s own evidence, that taking puberty blockers could not be said to be entirely reversible or without consequences. There was insufficient evidence about the consequences of long-term suppression of puberty, but there were possible risks for physical development (bone density, growth, height) and the psychological development which occurs during puberty. Data from children prescribed puberty blockers to prevent premature puberty did not assist in analysing this, because those children went through puberty at roughly the same time as their peers.
So a child or young person giving informed consent to taking puberty blockers had to understand and weigh the information about the likelihood of loss of fertility, loss of sexual function and enjoyment, and associated consequences as well as the risks to physical and psychological development.
Lastly, the court found there was a lack of clarity and consistency about the aim of treatment with puberty blockers, and how success could be assessed. There were references to a “pause”, or a time in which a child could think further and explore sex and gender identity. There were references to preventing distress and gender dysphoria caused by going through puberty in the child’s birth sex. There were also suggestions that it would be easier for a child or young person to transition through surgery after adulthood if puberty had not occurred.
If you don’t know what the aim of a treatment is, and don’t clearly have that aim in mind, it is hard to see how the success of a treatment can be assessed.
The Court’s Conclusions
The court decided that it was most unlikely that a child of 13 or under could understand, take in, and properly weigh the information about the effects and consequences of taking puberty blockers, including the likelihood of proceeding to cross-sex hormones. It was difficult to see how a child of that age could properly consider the issues of fertility, sexual function and pleasure, and life-long consequences.
The court’s conclusion was, therefore, that it was going to be very rare that a child was capable of giving informed consent to puberty blockers aged 13 or under.
The court concluded that 14 and 15 year olds were more mature, older, and it was possible that some under 16s would be capable of giving informed consent to treatment with blockers, but the court was “very doubtful” that many 14 and 15 year olds would be able to give such consent.
The legal position for 16 and 17 year olds in relation to medical treatment is different; there is a presumption of capacity. The court sounded a note of caution, however, stating that clinicians “may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court”: in other words, they may need to apply to the court to make a determination on a young person’s best interests. It is a warning to doctors prescribing such drugs that they must take great care.
GIDS and the Trusts were not criticised for the information they gave. The Court accepted that the written information to children, young people and parents tried hard to give full information that explained the potential consequences. The problem is not the information given but the ability of children and young people to understand and weigh it up.
Hi
Thank you for this summary.
I do not understand the last paragraph and hope you may be able to explain how GIDS and the Trust cannot be criticised by the Court for the information given to young people (children) and parents, written or otherwise, when they:
– Have not kept adequate records of who they have prescribed PB’s for
– Done little to no studies on the outcomes for those young people
– Do not, in fact, know what the long term effects of PB’s are
– Lack clarity and consistency on the aim/s of the treatment.
Under these circumstances, what are they basing the information they give to children/young people and parents on? The information would be incomplete at best and guesswork at worst.
Perhaps I can put it like this – the court was satisfied that the information provided to children, young people and their parents was a detailed and comprehensive summary of the available information. It was thorough, given what the Defendant knew.
The quality of the available data is a different question, going to the root of whether a child can consent in light of the evidence.
A summary might be – the data was inadequate, but the summary of it given to patients was a good summary.
Thank you for that clarification. It is staggering that GIDS seems to have so little curiosity about the treatment they provide and the long term well being of their patients.
GIDS don’t even have a record of the sex of all those referred to them. For the year to 20 April 2020, approximately 5% are recorded as sex ‘not known’: Number of referrals | GIDS.
And they use the term ‘assigned at birth’.
The court shared your concern – the judgment uses the term “surprised…” more than once. Which is legal-speak for, “wait, what?!”
Looking critically (with curiosity) at the evidence, requiring data collation, would have required a auestioning standpoint at odds (perhaps) with taking an ‘affirmative care’ stance?
Good point. Did they inform them that they were using them as guinea pigs?
Can you talk about what the ruling said about the possibility of parental consent in the absence of legally effective consent by the child? If it didn’t decide the issue, to what extent are the defendants bound not to change their existing policy regarding parental consent? Is there any equivalent to the US declaratory judgment suit if the defendants wished to learn how the court would approach parental consent? It just seems odd that the court would fail to address the major way of dealing with this issue in the United States.
I’m sorry, but even as an US American, I can see why a UK court did not address the legal peculiarities of a whole other country — we are not the center of the universe. Why in the world have that expectation? Their judgments are based on their own laws and precedents. Stop making it so embarrassing to be a US citizen!
Even as an USAmerican, I can see why the courts in a whole other country centered their own laws and precedents! Why in the world would you think they should address another country’s legal reasoning? Please stop making it so embarrassing to be from the US by acting as if we are the center of the universe and should be at the forefront of everyones minds at all times.
My understanding is the court explicitly reserved the question of parental consent because current clinic policy was to solicit only child consent. I’m asking about the effect of this reservation in the UK; I didn’t intend to suggest the court should reach a question that was not presented. Still, some indication of what options were open to the clinic now might have been useful and I’m wondering if the author has any insight—particularly because this is how the issue of child incapacity is addressed in other countries. Apologies for embarrassing you!
A judicial review can only review what is actually being done. So to that extent, this case doesn’t stop GIDS moving to a “best interests” prescription model, with consent from the parents.
It might well be said that the same factors which lead the court to conclude there couldn’t be informed consent by a child would apply to the parents, but that would be a separate argument.
However, GIDS specifically said in its pre-action protocol letter response, quoted by the court in the judgment at paragraph 47:
“There is a fundamental misunderstanding in your letter, which states that parents can consent to pubertal suspension on behalf of a child who is not capable of doing so. This is not the case for this service, as is clear from the above. 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. The Service Specification confirms that this is the case.”
It would be difficult for GIDS to move to a parental consent model, having told the court it could not conceive of any siutation where it would be appropriate.
Thank you! I do think it’s odd that GIDS said that, given that’s the regime that controls in other jurisductions (so not literally inconceivable) and as far as their patients would be concerned, they could be obtaining the same actual (although legally ineffective) consent alongside parental consent. If the clinic truly believes these kids need blockers, you’d think they’d adapt.
The problem Tavistock faced is the tabloid headlines screaming “Abusive Parents forcing sex changes on defenceless kids!!!”
Which actually happens to Intersex infants. Not that the parents are abusive, just ill informed, but trying to do what is best for the child. They get it right about 2 times in 3.
See
Discordant Sexual Identity in Some Genetic Males with Cloacal Exstrophy Assigned to Female Sex at Birth by Reiner and Gearhart, N Engl J Med. 2004 January 22; 350(4): 333–341.
RESULTS Eight of the 14 subjects assigned to female sex declared themselves male during the course of this study, whereas the 2 raised as males remained male. Subjects could be grouped according to their stated sexual identity. Five subjects were living as females; three were living with unclear sexual identity, although two of the three had declared themselves male; and eight were living as males, six of whom had reassigned themselves to male sex. All 16 subjects had moderate-to-marked interests and attitudes that were considered typical of males. Follow-up ranged from 34 to 98 months.
CONCLUSIONS Routine neonatal assignment of genetic males to female sex because of severe phallic inadequacy can result in unpredictable sexual identification. Clinical interventions in such children should be reexamined in the light of these findings.
Or to put it another way, “we screwed up”. The consensus now is to wait until the child tells us what sex they are, then provide options. This is often obvious around age 5, sometimes as young as 2, nearly always by age 9.
Many are fine with having unusual genitalia, and no surgical intervention is needed, nor is it desirable. Other patients, and bear in mind these are usually under 10, desperately plead for it.
Tavistock has – or had – to treat such patients. Now it seems that pending court cases, it is up to parents and local surgeons’ prejudices – ” it is easier to dig a hole than make a pole” so in practice assignment to female is the default – providing the child is under 3. As was the case historically, with often dire consequences.
Thank you for this clear analysis of the courts decision. So glad sanity has prevailed some where in the world to protect children and adolescents.
While I agree with the result, I wasn’t convinced that competence to be treated with PB has to encompass competence to be treated with CSH. Assuming – as I think we must – that children aged 16 are competent to make the decision about CSH, and in the absence of evidence to suggest that those children’s choices are constrained by having taken PB, they have to be treated as separate decisions don’t they? I wasn’t persuaded by the Claimants’ arguments on that point, though I think the uncertainty about the effects of PB alone is probably sufficient to justify the result.
The court’s rational was that in practice, and as a matter of fact, almost every child prescribed puberty blockers went on to take cross-sex hormones. So consenting to PB did in reality mean that CS hormones would follow.
Tavistock has, apparently as the result of this ruling, declined to continue any treatment that would interfere with the natural development of puberty in any patient under 18, without permission from the High Court.
This has caused real issues in cases of 5ARD and 17BHSD where the underage patient is now being forced into an unwanted sex change.
Not a hypothetical, alas. While Alder Hay has seen cases of 5ARD before, they have no experience with 17BHSD, and were handing off such cases to Tavistock.
https://foreignpolicy.com/2020/12/15/uk-transphobia-transgender-court-ruling-puberty-blockers/
” Bell began taking hormone replacement therapy (HRT) as an adult, at 18, and obtained her top surgery at 20. Bell’s lawyer argued in court that her decision to seek treatment with HRT was caused by her having been prescribed Lupron, a puberty blocker, at an earlier age. It is unusual for courts to be swayed by this kind of “slippery slope” fallacy, especially when Bell was also, and contradictorily, arguing that her interest in transition was caused by “the internet.”
But it was especially bizarre for the court to argue that the puberty blockers “pave the way” for the later, adult interventions because of the high percentage of patients who advance from puberty blockers to HRT (though the court did not in fact collect any evidence on what that percentage actually is). If that percentage is high, it would only be because the number is low—only 161 children were treated for gender dysphoria with puberty blockers in the year 2019-2020, implying that there are, despite much propaganda to the contrary, significant screenings of children before they are prescribed Lupron.
One might think it a good thing that doctors tend to prescribe puberty blockers only to those who then go on to transition. But the fact has created a very odd paradox: If the Tavistock clinic involved in the court case had indeed been prescribing Lupron as carelessly as has been claimed, and therefore the rate of detransition were higher than it is, then the clinic would have removed one of the bases of the case against them. The clinic was penalized, in other words, for demonstrating precisely the diagnostic restraint that the High Court judgment wants to encourage, but which it makes impossible.
And because it had accepted the argument that the blockers caused patients to transition, the court was put in the still stranger position of claiming that an irreversible puberty, rather than an easily reversible (though rarely reversed) intervention, would better give young people a chance to “pause” their decision. The system that the court has dismantled was designed to give adolescents an opportunity to determine how they want to live and to look, without undergoing the irreversible and often profoundly disturbing physical transformations of an unwanted puberty. That subtlety has now been erased in British law.
That FP article is laughably wrong on several fundamental aspects of the JR and the wider issues.
However, just to respond to one of your points, it was not the court that did not collect any evidence on what that percentage of those prescribed PBs who then went on to CSH as you assert: that was entirely the fault of GIDS. That was indeed one of the features of the whole case: the paucity of data collected by GIDS. The pre-print publication of their ‘trial’ on the day the judgement was handed down has not helped them. It will interesting to see what, if anything, of that paper survives peer review.
Zoe
You might be interested in this article about that dreadful FP piece: What this academic gets wrong about trans rights in Britain | The Spectator
I’m familiar with the many articles by this prolific, colourful and controversial author, whose ideology is well known. The problem is that once you’ve read one such opinion piece (a dozen in the Speccie alone), you’ve read them all.
I prefer to bow out of the controversies between this author and their rather too pungent academic critics. I prefer less heated debates using facts not political philosophies as ammunition. I’m also too ignorant about the factions in the UK Greens and Labour to give an informed opinion.
If a self described “sexually confused biological male” says a Truth, it remains True though, regardless of source. Ad Hominem fallacies are all too easy to fall in to.
One person’s view that Trans people are not persecuted in the UK is a data point, since despite the “sexually confused biological male” self designation, they also self designate as Trans, so presumably speak from personal experience. They have credibility.
I prefer statistics from regional police services, which paint a very different picture, based on recorded facts such as hospital admissions, eyewitness accounts, videos, and of course, hundreds of contradicting personal accounts. The author’s personal accounts and experiences are likely true, but the evidence suggests if so, they are highly atypical. On the other hand, while 40% of Trans people in the UK have reported being physically assaulted, with many ending up in ERs according to police records, there have been no recorded murders for years. That makes the UK atypically safe by world standards.
I’ll tell Debbie you describe her as “prolific, colourful and controversial author”. I’m sure she’ll be amused…
Any discussion about that FP article and it’s many flaws is really off-topic here even if you did introduce it.
However, you say:
What other ways are there?
Then:
It might be interesting to see your evidence for your assertions here.
I would love to contact the author, I’m sure they could teach me a lot.
Debbie can be contacted on Twitter: https://twitter.com/DebbieHayton
Re. The Spectator article, you’ve literally said that you’re unwilling to accept a verifiable correction of key objective facts because you don’t like the person presenting the correction. This is a morally appalling position that you should be ashamed of.
The High Court has granted leave to appeal to the respondents, along with several other parties.
From the Grauniad:
Now the Tavistock and Portman NHS trust, which runs the UK’s main gender identity development service for children, has been granted permission to appeal, alongside University College Hospitals NHS foundation trust and Leeds Teaching Hospitals NHS trust
…
In September last year the NHS launched an independent review into the future of gender identity services for children and young people to examine the use of puberty blockers and cross-sex hormone drugs as well as looking at how care could be improved.
The NHS service at Tavistock, to which those under the age of 18 with concerns about their gender are referred for treatment, has had a surge in demand from 77 in 2009 to 2,590 in 2018-19.
An inspection of the Tavistock and Portman NHS foundation trust gender identity services for children and young people by The Care Quality Commission due to report on Wednesday is expected to include feedback from people using the service, parents, relatives, carers and staff..