Campaigners lose High Court battle over NHS gender dysphoria treatment delays

Campaigners have lost a High Court challenge against NHS England over waiting times for gender dysphoria treatment (Yui Mok/PA) (PA Archive)
Campaigners have lost a High Court challenge against NHS England over waiting times for gender dysphoria treatment (Yui Mok/PA) (PA Archive)

Campaigners have lost a High Court challenge against NHS England over waiting times for gender dysphoria treatment.

Four people, along with charity Gendered Intelligence and legal campaign group The Good Law Project, brought a claim over current waiting times for a first appointment with a specialist in gender dysphoria.

They complained that the NHS was failing to ensure that 92% of patients referred for non-urgent care were starting appropriate treatment within 18 weeks.

In a ruling on Monday, Mr Justice Chamberlain rejected the claim, finding that the NHS has a duty to “make arrangements” and that applies to patients as a whole, rather than individuals.

He also warned that a court order demanding that the NHS comply with a waiting list time limit could force the diversion of resources away from other services which are also suffering from delays.

He suggested the “principal purpose” of the legal action may have been “to encourage NHS England to spend a greater portion of its budget on directly commissioned (gender dysphoria) services”.

“The practical result might be to divert resources from other important health service purposes in circumstances where the court could not gauge whether or not such a diversion would be beneficial overall”, he said.

At a hearing in November, the High Court was told that, as of August 2022, 26,234 adults were waiting for a first appointment at a gender dysphoria clinic, with 90% of these waiting longer than 18 weeks.

The court in London also heard that, by the end of the same month, around 60.8% of all NHS patients referred for treatment had been waiting up to 18 weeks, with 39.2% waiting over 18 weeks.

NHS England presented evidence of steps being taken to address waiting time delays, as well as an acknowledgment that improvements would not happen immediately.

“In my judgment, it is impossible to stigmatise these steps as unreasonable or inadequate ones”, said the judge.

The court also saw evidence of struggles to meet waiting time targets across other NHS services.

One of the claimants, Eva Echo, was referred to the West of England Specialist Gender Dysphoria Clinic in October 2017 but has not yet had a first appointment and has instead spent around £3,000 on private services usually available from the NHS-funded service.

Another claimant, Alexander Harvey, was experiencing “extreme distress” due to the delay in accessing treatment, the court heard.

Mr Harvey, who is transgender, said in evidence that the wait “means that I have to continue to live in a body which I don’t feel is mine and which does not reflect who I am”.

In his ruling, the judge acknowledged “the serious effects” of long waiting times on two other people bringing the claim, who are both children.

“Their distress and fear, as described by their parents, is particularly affecting because its source lies in their own changing bodies”, he said.

“It is a matter of great regret that many other children and adolescents waiting for children’s gender identity development services must face the same distress and fear.”

In a statement following the ruling, GenderedIntelligence said the charity “has been clear from the start of this case that, while any legal outcome is important, of equal importance is raising awareness of the dire straits in which trans healthcare finds itself in the UK”.

The statement continued: “We understand that this judgment will be difficult for many people, particularly those trying to navigate horrendous and unjust waiting times themselves.

“We too are disappointed, and we send solace and strength to everyone fighting an uphill battle just to access basic healthcare.”

The Good Law Project said it will seek to appeal over the ruling, calling the result “a deep disappointment”.