Under-16s “unlikely” to adequately understand nature of puberty blocking treatment, court rules
Over-16s “have the ability to consent” to treatment
But judges recommend court authorisation in some instances even for children over 16
Children with gender dysphoria under the age of 16 are “unlikely” to be able to consent to puberty blocking treatment, the High Court has said in a landmark ruling described as a “devastating blow” to trans young people.
Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before “detransitioning”, had brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children.
The legal challenge was also brought by Mrs A, the mother of a 15-year-old girl with autism who is currently on the waiting list for treatment.
At a hearing in October, their lawyers said children going through puberty are “not capable of properly understanding the nature and effects of hormone blockers”.
Speaking outside the Royal Courts of Justice after the ruling, Bell said she was “delighted” with the High Court’s ruling.
A statement was also read on behalf of her fellow claimant, Mrs A, which said: “I’m relieved to hear the court have understood and agreed with our concerns about [...] treating children and young people with puberty blockers.”
Their solicitor Paul Conrathe said the ruling was “a historic judgment that protects children who suffer from gender dysphoria”.
But a spokesperson for the Tavistock and Portman NHS Trust, said: “The trust is disappointed by today’s judgment and we understand that the outcome is likely to cause anxiety for patients and their families.
“Our first duty is to our patients, particularly those currently receiving hormone blocking treatment, and we are working with our partners, University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospitals NHS Trust, to provide support for patients concerned about the impact on their care.”
The spokesperson also confirmed that the trust would seek permission to appeal against the judgment.
Chief executive of Stonewall, Nancy Kelley, said she welcomed news of the Tavistock appeal and described the ruling as “deeply concerning and shocking.”
She said: “Although it is unclear, the judgement implies that trans under 18-year-olds should obtain permission from court before being prescribed hormone blockers by the NHS... the average onset of puberty in the UK is currently 11 for girls and 12 for boys.
“For decades, hormone blockers have been used to pause puberty for children experiencing precocious puberty. They also play a vital role in helping to alleviate the distress many trans young people experience and offer much-needed time to questioning young people to explore their identity. Denying this neutral support is not a neutral act and can be deeply harmful to trans young people.”
Kelley said the ruling would be “incredibly tough” to hear for trans young people and their families and said if it is upheld on appeal it would extend the wait trans young people already face when seeking specialist support.
Lawyers for Bell and Mrs A had argued that young people would need to be able to give informed consent not only for puberty blockers but also for cross-sex hormones, because of the “very high likelihood” that children who start taking hormone blockers would later begin taking the other.
Bell said on Tuesday: “While puberty blockers are a reversible intervention, the judgement says that in order for a young person to give informed consent, they must also understand the potential implications of a range of other potential future treatments, including cross-sex hormones and surgical intervention. These treatments are only available to those aged 16 or over, and those aged 18 or over, respectively. We believe this is an extraordinary extension of the principle of informed consent.
“If this judgement is upheld on appeal, this ruling is likely to significantly extend the wait trans young people already face when seeking specialist support - and risks adding enormous strain to our already overstretched courts and mental health services.”
The Tavistock and Portman NHS Trust had argued that the treatments were separate, meaning that children only needed to be able to consent to puberty blockers in order to receive them.
But in its ruling, the High Court agreed with Bell and Mrs A, saying both treatments were “two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it”.
Dame Victoria Sharp – sitting with Lord Justice Lewis and Mrs Justice Lieven – said children of any age needed to understand “the immediate and long-term consequences of the treatment” to be able to consent to the use of puberty blockers, and that this was unlikely if they were under 16.
Announcing the court’s decision at a hearing in London, Dame Victoria said that. “in order for a child to be competent to give valid consent the child would have to understand, retain and weigh” a number of factors, including “the immediate consequences of the treatment in physical and psychological terms” and the fact that “the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, a pathway to much greater medical interventions”.
The judge said that, for a child to be competent to consent to puberty blockers, they would also have to understand “the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery, the fact that cross-sex hormones may well lead to a loss of fertility (and) the impact of cross-sex hormones on sexual function”.
Dame Victoria said children also needed to understand “the impact that taking this step on this treatment pathway may have on future and life-long relationships, the unknown physical consequences of taking puberty blocking drugs and the fact that the evidence base for this treatment is as yet highly uncertain”.
Lui Asquith, from the trans children’s charity Mermaids, said the ruling was a “devastating blow”.
They told the PA news agency: “This morning’s judgment has been an absolutely devastating blow for trans young people across the country. We believe very strongly that every young person has the right to make their own decisions about their body and that should not differ because somebody is trans.
“The court today has decided to treat trans young people differently to every other child in the country.
“We believe that we’re entering a new era of discrimination, frankly. We see day in, day out at Mermaids the positive impact hormone blockers can have on some trans young people – in all honesty, they can save lives.
“They allow some young people to be able to go outside, engage in society, go to school, and we’re now in a position whereby those young people are not necessarily going to be able to access it.
“We’re entering a new era of experimentation, that experiment being what happens to trans young people who need hormone blockers who can’t get them.”
They added that the ruling may cause doctors to go through the courts to get approval to provide puberty blockers.
They said: “For those under 16, the court has said that it’s from a range of highly unlikely to doubtful that that young person will be able to give informed consent around hormone blockers.
“The judgment has said that clinicians may wish to therefore seek approval or support from the court in making those decisions, so what this in effect does is likely to lead clinicians seeking approval from the court to try and avoid liability.”
NHS England, which was not involved in this case, has now updated the NHS’s service specifications to reflect the judgment, meaning no-one under the age of 16 can now be referred for puberty blockers unless a court rules it is in the child’s best interests.
A spokesperson said: “We welcome the clarity which the court’s decision brings. The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for the under 16s, which in future will only be permitted where a court specifically authorises it.”
Editor’s note: An earlier version of this story stated in its headline that the court had ruled transgender children could be prescribed puberty blockers. While this is not incorrect in some situations, it did not reflect the additional judgment that it was deemed “unlikely” that young people under 16 would be able to consent to such treatment, and that the authorisation of a court “may well” be sought in some cases for over-16s, and so we amended the story to reflect the full detail of the judgment once it became available.
Useful websites and helplines:
The Gender Trust supports anyone affected by gender identity | 01527 894 838
Mermaids offers information, support, friendship and shared experiences for young people with gender identity issues | 0208 1234819
LGBT Youth Scotland is the largest youth and community-based organisation for LGBT people in Scotland. Text 07786 202 370
Gires provides information for trans people, their families and professionals who care for them | 01372 801554
Depend provides support, advice and information for anyone who knows, or is related to, a transsexual person in the UK
This article originally appeared on HuffPost UK and has been updated.