Can trans children consent to puberty blocking drugs? The High Court of England and Wales doubts it.

by | Dec 15, 2020

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About Tatiana Kazim

Tatiana Kazim is a law graduate of the University of Oxford, former research assistant at the Law Commission of England and Wales, and current judicial assistant at the Court of Appeal. She writes in her personal capacity.

Citations


Tatiana Kazim, “Can trans children consent to puberty blocking drugs? The High Court of England and Wales doubts it.”, (OxHRH Blog, December 2020), <https://ohrh.law.ox.ac.uk//can-trans-children-consent-to-puberty-blocking-drugs-the-high-court-of-england-and-wales-doubts-it> [Date of access].

If you are a transgender child living in England and Wales, what treatment can the NHS offer you? Until recently, one of the main options was a prescription of puberty blocking drugs (PBs), available through the Gender Identity Development Service at the Tavistock and Portman NHS Foundation Trust. PBs suspend the maturation of the gonads and related physical changes. If the course of PBs is stopped, puberty resumes.

However, following the decision of the High Court in Bell v Tavistock [2020] EWHC 3274 (Admin), PBs will no longer be available for under-sixteens except under the supervision of the court.

The case was brought by Keira Bell and Mrs A. Bell was born female. At sixteen, Bell was prescribed PBs, and later decided to take cross-sex hormones and undergo a double mastectomy. She then de-transitioned, no longer identifying as male.

In the High Court, the claimants argued that under-eighteens are not competent to give consent to the administration of PBs. In respect of under-sixteens, the court was largely persuaded.

For under-sixteens, the test for competence derives from the decision of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112. In order to be “Gillick competent” a child under sixteen must have sufficient maturity, and other characteristics, to understand the nature and implications of the treatment in question.

Applying this to the case at hand, the High Court reasoned as follows: some aspects of adult life – fertility and sex life – are far removed from the experience of a child. The effect of medical treatment on these aspects of life will be particularly difficult for a child to understand ([139]). This will be the case no matter how much information the child is given ([144]). Therefore, it is doubtful that a child of fourteen or fifteen could be Gillick competent in respect of medical treatment that may result in loss of fertility or ‘full sexual function’ – and for children aged thirteen or younger, the likelihood is even lower ([145]).

Let’s say we accept the court’s reasoning up to this point. The problem is that loss of fertility or ‘full sexual function’ are not effects that flow directly from PBs. They may flow from subsequent treatments: cross-sex hormones and surgery.

The court’s view was that PBs and cross-sex hormones are “two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it” ([136]). Further, the use of PBs “is not itself a neutral process by which time stands still”; it may have the psychological effect of reinforcing the child’s gender identity at the time they began taking PBs, increasing the likelihood that they will undergo additional treatment later on ([137]).

However, this reasoning is flawed. Even if there is a strong correlation between PBs and cross-sex hormones – as newly published data indicates there is – there are many possible reasons for this. In particular, consent-taking procedures may be sufficiently robust to ensure that, in almost all cases, only those children who would want to transition regardless are prescribed PBs to begin with.

In any case, the progression from PBs, to cross-sex hormones, to surgery depends on consent at each stage, and the second and third stages are not medically necessitated by the first.

In these circumstances, it is hard to see the justification for making consent to PBs dependent upon an understanding of the impact of cross-sex hormones and surgery. This approach – of taking independent treatments as a single package for the purposes of consent – also lacks precedent.

The court may have been concerned about people, like Bell, who begin to transition as children and later regret it. However, this concern must not incur disproportionately on trans children’s autonomy. Further, safeguarding can be achieved in other ways – most obviously, by ensuring that there are adequate exit options from the ‘clinical pathway’. There is no need to make it so difficult to take the first step.

Under-sixteens may still be able to access PBs, if they obtain a court order. For over-sixteens, PBs could be available without court supervision. Even so, this judgment has been a real setback for trans healthcare.

If you are personally affected by this decision, further information is available at https://mermaidsuk.org.uk/news/luis-hormone-blockers-qa-for-trans-young-people/

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