A case arguing that transgender teenagers should be forced to get a judge’s approval before taking puberty blockers is “preposterous”, London’s High Court heard today.
On the first day of a landmark legal fight over medical treatment for trans youth, judges were told that the claim that trans teens are too young and and too squeamish about sex to be able to properly consent to puberty blocking medication is a “radical new proposition” that runs counter to the longstanding legal framework giving children the right to consent to their own healthcare.
The judicial review into the prescribing of puberty blockers by the Tavistock and Portman NHS Trust, which provides specialised healthcare to trans people under the age of 18, has been brought by Keira Bell, 23, who took the medication at 16 but no longer identifies as trans, and Mrs A, who is trying to prevent her 16-year-old child taking puberty blockers.
Jeremy Hyam QC, barrister for Bell and Mrs A, told the High Court on Wednesday (7 October) that their case was that trans youth who are prescribed puberty blockers by the Tavistock gender clinic “are giving informed consent to a basket of risks they can’t compute”.
“Someone of 13, 15 or 16 cannot give informed consent,” Hyam said. “This vulnerable class of children cannot give valid consent to hormone blockers treatment and it requires the supervision of the court.”
Claiming that they are not trying to prevent puberty blockers being prescribed to trans youth, Hyam said that it would “protect the autonomy of these young children” for “the court to be the arbiter of whether appropriate care is given”.
“It should not be left to the doctors,” he said.
Lawyers for the Tavistock and Portman NHS Trust called the argument that “informed consent cannot be given by a child” a “radical new proposition”, and said it runs counter to both the Family Law Reform Act and the Mental Capacity Act.
Fenella Morris QC, representing the Tavistock, said that Bell’s case “advances some startling requests for jurisdiction that the court may not have”.
“This appears to be based on the assertion that puberty blockers have life-changing effects, particularly on sexuality – it seems to be said either in themselves or because they lead to a progression to cross-sex hormones,” Morris said. “These assertions are not accepted by the professionals within the Tavistock or the [NHS] trusts.”
Informed consent to puberty blockers is an ‘ongoing dialogue’, says Tavistock lawyer.
When specialist gender doctors consider prescribing puberty blockers to trans youth, Fenella Morris QC said, there is a “constantly reviewed, ongoing dialogue” about whether the individual is capable of giving informed consent to the healthcare.
She also emphasised that the average age at which a trans youth is prescribed puberty blockers is 15.
“It’s the opposite of the suggestion that there is some sort of conveyor belt,” Morris said, adding that the situation is “constantly monitored” and “patients must be informed of the possibilities and limitations of gender-affirming treatment at each stage”.
“Somebody isn’t referred for puberty blockers without there being consideration with them so they understand what the possible further pathways are, but that is without any assumption of what pathway may be taken,” she added. “While it’s made absolutely clear what the possibilities are, there are absolutely no assumptions about what progress there might be at each stage [of treatment].”
Puberty blockers are prescribed to trans youth by specialist gender doctors at GIDS, the Tavistock gender clinic for under 18s. Research published at the beginning of this year in medical journal Paediatrics found that the treatment is “life changing“, and that access to puberty blockers significantly reduces the suicide risk of trans youth.
Trans kids ‘cannot make decisions’ about risks, court hears.
Jeremy Hyam QC told the judges that Bell’s case is that puberty blockers are an “experimental” treatment that can cause a loss of “sexual function”, which a 12-year-old cannot understand and so cannot consent to.
And, he argued, because a high proportion of those who take puberty blockers will continue their transition by taking hormone therapy as adults, trans youth can only give their informed consent to puberty blockers if they also fully understand the physical changes that may be caused in future by hormone therapy.
“An age-appropriate discussion about the loss of orgasm or about the amount of penile tissue needed to create a neo-vagina can’t be had with a 12- or 13-year-old,” Hyam said.
Referring to his own teenage daughter, who told him, Hyam said, that it is “disgusting” to see adults kissing on television, Hyam added that because the “idea of sex is disgusting” to teenagers, they could not give informed consent to puberty blockers, “a process which is likely to remove or significantly impair sexual function” and “the loss of ability to have intimate sexual relations in future”.
“There’s just no way they can make informed decisions about loss of sexual function, ability to orgasm and things like that, it’s just not credible,” Hyam said. “Our position is that this isn’t a decision a child can sensibly be expected to take.”
Later in the day, Morris addressed this point directly. “As much as there may be blushing 12- and 13-year-olds who don’t want to see people kissing, it is not unheard of for people in this age group to have sex,” she said.
“The vast majority of people going through this process are around the age of 15,” she added. “We know from the straightforward material provided to young people contemplating blockers that it is explained to them it can’t be relied on for contraception. Many of these individuals are having sex.”
Moreover, she said, when it comes to younger children, time is taken to see if their understanding of the process develops – along with their whole family.
“The proposal made by Mr Hyam, which is that rather than the child being asked to think about what his future sexual feelings might be, the court is being asked to imagine, in the shoes of the child, to imagine what his future sexual feelings might be… I would say that this is preposterous.”
When questioned by the judges over whether Bell’s case is that a court should be able to override the consent of a trans teenager, the teenager’s specialist doctor and parents in prescribing puberty blockers, Hyam said that it was.
“A court can trump the consent of parents and child and stop the treatment going ahead if it’s not in the child’s best interests,” he said. “This is an area where you cannot rely on parental consent, because it falls outside the responsibility of parents to determine the gender identity of their child.”
The hearing continues tomorrow.