- In first day of evidence, lawyer argues it’s a ‘fairy tale’ that children can give informed consent for treatment.
The High Court in London is hearing a case that could stop trans teenagers in the UK from getting puberty blockers.
Two women have brought the case. One is the mother of an autistic 16-year-old awaiting treatment. To protect her child’s identity, she is only called Mrs A.
The other is Keira Bell, now 23-years-old. At 16 she took the hormone blockers before transitioning to male at 17. However she later destransitioned to female again.
The first day of evidence focused on the pair’s claims against the UK’s only National Health Service gender clinic that treats children. The Tavistock and Portman NHS Trust runs the Gender Identity Development Service (GIDS), based in Hampstead, north-west London.
It helps children – mostly teenagers but a few as young as nine or 10 – access the hormone blockers.
The drugs suppress the release of the hormones oestrogen and testosterone. Levels of these rise during puberty, triggering the body to develop breasts, periods, facial hair or a deeper voice.
The blockers slow these from developing. This in turn helps trans teens avoid changes that don’t match their gender identity – helping their mental health. It also gives them time to consider if they wish to transition permanently.
However, lawyers for Bell and Mrs A argued that it was a ‘fairytale’ to think children aged under 18 can give ‘informed consent’ to the treatment. They say children going througy puberty are ‘not capable of properly understanding the nature and effects of hormone blockers’.
Moreover, they argue there is ‘a very high likelihood’ that children who start taking hormone blockers will later begin taking cross-sex hormones, causing ‘irreversible changes’.
Jeremy Hyam QC is representing the two women. He argued that ‘hormone blockers can have significant side-effects’. These include ‘loss of fertility and sexual function and decreased bone density’.
Moreover, in a written submission, Hyam said:
‘That children are not capable of giving informed consent to undergo a type of medical intervention about which the evidence base is poor, the risks and potential side-effects are still largely unknown, and which is likely to set them on a path towards permanent and life-altering physical, psychological, emotional and developmental consequences… is the common-sense and obvious position.’
He told the court that the GIDS clinic had seen a ‘20-fold increase’ in referrals. They have risen from 97 in 2009 to 2,590 in 2018.
Giving evidence as a witness, Bell said she began detransitioning again last year:
‘I made a brash decision as a teenager, as a lot of teenagers do, trying to find confidence and happiness, except now the rest of my life will be negatively affected.
‘Transition was a very temporary, superficial fix for a very complex identity issue.’
‘Safe and reversible treatment’
Meanwhile Fenella Morris QC is the lawyer representing the Tavistock and Portman NHS Trust. She said the use of puberty blockers ‘has been widely researched and debated for three decades’.
And she added: ‘It is a safe and reversible treatment with a well-established history.’
In fact, she said the majority of children using the clinic between March 2019 2020 were over 12. Only 13 referrals were under the age of 13.
However, in her written submission Morris said the claimants wanted to ‘impose a blanket exclusion’ on under 18s giving consent to medical treatment.
The Tavistock argues it has careful checks for hormone blockers. Moreover, it has used the drugs for years to allow young trans teens time to reflect before they transition.
Likewise, the court may hear evidence about the benefits of the blockers in preventing the distress of puberty for trans teens.
Further evidence will come from lawyers representing London Hospitals NHS Foundation Trust and Leeds Teaching Hospital NHS Trust. The GIDS clinic refers young people with gender dysphoria to those hospitals, and they actually prescribe the hormone blockers.
If Bell and Mrs A win, the case could prevent all under-18s from accessing puberty blockers. In future, trans teens may even have to use an intrusive judicial process to win access to the drugs.
The GIDS clinic already has a massive waiting list and this will add to many trans young people’s distress. As a result, it could be a matter or life of death for many trans youths – who may already be struggling with poor mental health.
However, the case could set an even wider precedent than that.
The right for children to consent to medical treatment in England stems from a 1985 legal case – Gillick v West Norfolk and Wisbech Area Health Authority.
In it a teenager Victoria Gillick campaigned to access contraception. The court concluded that a child doesn’t become mature enough to make decisions at a set age but over a period of time.
Therefore, children can now decide about their medical treatment if they are mature enough to make up their own mind on the particular issue. This is called ‘Gillick competence’.
If the case eroded that ‘Gillick competence’ system, it could impact teens wanting to access contraception and abortion.
However, if that did happen, an appeal to a higher court is likely. The House of Lords, which the Supreme Court has now replaced, originally set the Gillick decision.
The High Court started hearing evidence yesterday and those hearings are likely to end today. However, the judges Dame Victoria Sharp, Mr Justice Lewis and Mrs Justice Lieven will most likely delay a ruling while they consider the case in detail.