In a potentially landmark judgment the High Court today reached a decision about puberty-blocking drugs that may end up having long-lasting consequences on medical treatment in the UK.

Obviously this is a sensitive issue that attracts a lot of passion but in this piece I want to focus as much as I can on the legal issues that arise.

Background

The case was brought by Keira Bell who was born female but at the age of 15 was prescribed puberty-blocking drugs after three one-hour appointments with medical experts about gender dysphoria and the possibility of transitioning to become a man. When she was 20 she had a double masectomy but last year realised that she had gone down the “wrong path” and has since commenced with de-transition.

The other claimant is only referred to as Mrs A. She has a 15 year old daughter and was concerned that she would be prescribed puberty-blockers.

It is also worth making note of the defendant in this case: The Tavistock Centre. That Centre is unique for running the only Gender Identity Development Service in the UK and therefore many young people with gender dysphoria are referred there each year.

The Legal Argument

Those are the parties but what is the case actually about? Ultimately it is one of consent. Can a young person consent to medical treatment that involves the use of puberty-blockers?

From a legal standpoint this immediately calls to mind the famous case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] where it was decided that a child could consent to medical treatment if that child “achieves sufficient understanding and intelligence to understand fully what is proposed.”

This brings us to the central argument in the case: what must the child be able to understand? On the one hand puberty blockers on their own have limited consequences because their effects can be reversed by simply halting treatment. However it is also very common for the use of puberty-blockers to lead to further treatment with cross-sex hormones where the changes can be irreversible.

The Decision

In the end the High Court decided that if a child were to give valid consent then they would have to be able to evaluate a whole host of factors including:

• the effects of puberty-blockers themselves
• the limited scientific consensus on the use of puberty-blockers
• that taking puberty-blockers commonly leads to further medical intervention including cross-sex hormones and surgery
• that taking such a path can have an impact on fertility, sexual function and personal relationships

This is a lot for anyone to take on board, never mind a child, and so the Justices held that it is unlikely someone under the age of 16 would be able to give informed consent. Even for those young people over the age of 16, where there is a statutory presumption that they have the ability to consent, the court held that the nature of the treatment means it ought to be subject to court authorisation before proceeding.

Thoughts

The decision has understandably upset a large number of trans-rights activists but this is just another example of the law taking a more conservative approach when it comes to issues that are still subject to some debate in both the scientific community and society at large.

The best counter-argument was put forward by @shonfaye on Twitter and, if the case gets appealed, this will likely be the crux of the matter:

This is disappointing and confusing as it links capacity to consent to a treatment with physically reversible effects made at one point in time with capacity to consent to more permanent treatments which would be embarked upon later

— shon faye. (@shonfaye) December 1, 2020

It is understandable that the High Court wants to be cognisant of the full ramifications of puberty-blockers but it is also arguably overkill to expect a child to understand this immediately when they are only taking a single first step on what might end up being a long and arduous journey that is filled with more decisions as the treatment continues. In time history may judge this decision poorly but it at least makes sense given the current context.

Places like the Tavistock Centre also have a lot to learn from this decision as well. Their Gender Identity Development Service may offer a world-class helping hand to those with gender dysphoria but, like so many medical professionals and institutions, it shows a certain naivety when it comes to understanding and meeting its legal obligations. For me the most striking part of the judgment was the lack of evidence presented across the board culminating in the following conclusion:

“The court gained the strong impression from the evidence and from those submissions that it was extremely unusual for either [Gender Identity Development Service] or the Trusts to refuse to give [puberty-blockers] on the ground that the young person was not competent to give consent. The approach adopted appears to be to continue giving the child more information and to have more discussions until s/he is considered Gillick competent or is discharged.”

Such an approach to patient care is legally unsustainable and those working in this field would do well to take note of these failings and evaluate their own processes.

Ultimately the publicity this case attracts is a good thing. The debate on Twitter and Facebook will be unbearable but the judgment itself highlights key issues that warrant further debate and discussion in law, science and society. It is also important because it gives visibility to people like Keira Bell whose own journey of de-transition is often overlooked.