The Judicial Review of Puberty Blockers

After the judgement in December 2020, leave to appeal was granted and the appeal case will be heard on 23rd June 2020. The increasing legal costs being incurred are being covered by crowdfunding. There is still time to donate to the CrowdJustice fund by clicking on this link:

Background

In 2019, a former GIDS clinician and the mother of a trans-identifying teenager asked the courts to consider whether it is legal to prescribe puberty blockers to children and adolescents under the age of 18. Although the puberty blocker became ‘established practice’ within the NHS in 2014, the safety and efficacy of the treatment remains unknown and GIDS had not yet published any evaluation of the treatment. As fellow-parents, Bayswater Support Group welcomed the additional scrutiny of evidence that this important legal action promised. Sue Evans and Mother A provided us with an insight into why they were bringing this case.

Original media coverage of the case can be found in here and here.

Later in the case, Keira Bell stepped into Sue Evans’ place as co-complainant in the case. Together with Mrs A and their legal team, and with Sue Evans now as a witness, she brought the case before the High Court in October 2020.

Sue Evans’ Story

Why are Mother A and I bringing this case?

“I want to explain a bit more about what we are hoping for in the judicial review on the administration of hormone blockers to children under 18.

Some people have asked if this case and the outcome, will only affect the care of the child of Mother A. This is not why Mother A and I are bringing the legal action. We believe and are very much hoping that it will be deemed unlawful for children under 18 to give ‘informed consent’ to hormone blockers. If we are successful, then this legal decision will impact on all young people under the age of 18 who are currently experiencing gender dysphoria and/or ideas of feeling ‘trans’. We are focussing on puberty blockers and asking that  they should only administer hormone blocking treatment to children under 18 if an application has been made to the court and the court is satisfied that such a treatment is in the Child’s best interest. The blocker is the first step treatment on the pathway to cross sex hormones and in some cases reassignment surgery so we felt it was important to focus in the first instance on the hormone blockers which are administered to children at Tanner stage 2 (possibly as young as 9/10 years old). We are aiming to provide evidence around calling into question the child or family’s ability to give informed consent and thus prevent the progression on the pathway.

We are hopeful that this change in the treatment protocol will allow for an improvement in the psychological assessment and non-medicalised support and therapeutic treatment for children presenting with distress about their body.

What is not included in the case, but what I am hoping would be an outcome of this decision, is the decentralisation of the current GID service, with improved local services where people with GD could be assessed and treated in a more holistic and multidimensional way. In other words to treat and care for the person and their family, and not just the gender dysphoria as if it is a separate thing to all the other aspects of the young person’s life.

So to summarise it it mainly the legality of the informed consent to the treatment that we are challenging.

Mum A shared her story here

After a two day hearing in October 2020, three High Court Judges spent several weeks assessing the evidence provided by the legal team for Mrs A and Keira Bell, as well as evidence submitted by Transgender Trend, who provided much needed social context for the rise in referrals to the Gender Identity Development Service. Evidence was also heard from young people currently at, or waiting to be seen by GIDS.

On Tuesday 2nd December 2020, the High Court handed down the judgement, stating that those under 16 are unlikely to be able to consent to treatment and therefore puberty blockers should only be given to these children under the oversight of the court.

The full judgement can be read here, and we recommend you read it in full. We outline the main conclusions below.

Puberty Blockers are Experimental

Having weighed up the evidence, the judges concluded that the use of puberty blockers in children with gender dysphoria was indeed experimental. They described puberty blockers as ‘a very unusual treatment’ because “Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve….Secondly, there is a lack of clarity over the purpose of the treatment: in particular, whether it provides a “pause to think” in a “hormone neutral” state or is a treatment to limit the effects of puberty, and thus the need for greater surgical and chemical intervention later, as referred to in the Health Research Authority report. Thirdly, the consequences of the treatment are highly complex and potentially lifelong and life changing in the most fundamental way imaginable. The treatment goes to the heart of an individual’s identity, and is thus, quite possibly, unique as a medical treatment.”

Puberty Blockers are a “Stepping stone to cross sex hormones”

The Tavistock argued that puberty blockers and cross sex hormones were two stand alone treatments and therefore consent to each stage of treatment should be treated entirely separately. The Judges disagreed, stating:

“It is said therefore the child needs only to understand the implications of taking PBs alone to be Gillick competent. In our view this does not reflect the reality. The evidence shows that the vast majority of children who take PBs [puberty blockers] move on to take cross-sex hormones, that Stages 1 and 2 are two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it.”  

The judges also commented on the ‘time to think’ argument – that puberty blockers give children the time to consider their identity and the next steps they may wish to take. They disagreed and stated because almost all children on puberty blockers progress to cross sex hormones, that for some children puberty blockers appear to confirm the child’s identity and likelihood of progressing to the next stage of treatment. As a result, the judges concluded that in order to be Gillick competent, the child needs to understand not only the consequences of puberty blockers, but also of taking cross sex hormones.

Achieving Competence to Consent

The judges listed 8 aspects of the treatment that a child would need to understand, retain and weigh up in order to be deemed competent to give consent (Gillick competence). These are:

  1. the immediate consequences of the treatment in physical and psychological terms
  2. the fact that the vast majority of patients taking PBs go on to CSH and therefore that s/he is on a pathway to much greater medical interventions
  3. the relationship between taking CSH and subsequent surgery, with the implications of such surgery
  4. the fact that CSH may well lead to a loss of fertility
  5. the impact of CSH on sexual function
  6. the impact that taking this step on this treatment pathway may have on future and life-long relationships
  7. the unknown physical consequences of taking PBs; and
  8. the fact that the evidence base for this treatment is as yet highly uncertain

Can Children Consent to Puberty Blockers?

In light of the above conditions, the judges concluded that:

  • it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. 
  • In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.

Under the law, those aged 16 or over are assumed to have the capacity to consent. However, the judges state that given the current level of evidence provided for the use of puberty blockers, “clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.”

Keira Bell’s Statement

I am delighted at the judgement of the Court today. It was a judgement that will protect vulnerable young people – I wish it had been made before I embarked on the devastating experiment of puberty blockers. My life would be very different today. 

This time last year I joined this case with no hesitation knowing what I knew about what had and has been going on at the Gender Identity Clinics. My hope was that outside of the noise of the culture wars the Court would shine a light on this harmful experiment on vulnerable children and young people. These drugs seriously harmed me in more ways than one and they have had many more… particularly girls and young women.

This judgement is not political. It is about the protection of vulnerable children. Please read it carefully. It exposes a complacent and dangerous culture at the heart of the national centre responsible for treating children and young people with gender dysphoria.

This fight is not yet over. I would like to personally call on professionals and clinicians to create better mental health services and models to help those dealing with gender dysphoria to reconcile with their sex. And furthermore, I call on society to accept those who do not conform to sex stereotypes – not push them into a life of drugs and concealment from who they truly are. This means stopping the homophobia, the misogyny and the bullying of those that are different.

Today I am delighted to see that common sense has prevailed and to see a reinstatement of safeguarding for children. I want to thank every single person who donated to make this case happen. Your generosity has helped protect vulnerable children and young people. I wish to thank Sue Evans who had the courage to begin this case. I also wish to thank my co-claimant Mrs A who has taken this case on behalf of the many parents who are agonising over the confusion their children are working through. Finally I wish to think the judges, my legal team, my partner and all those before me who have also worked to bring this issue to light. Thank you!

Mrs A’s Statement

Mrs A’s Official Press Statement

I am relieved to hear that the Court has understood and agreed with our concerns about the unique nature of treating children and young people with puberty blockers. The Court agrees that puberty blockers are not just a stand alone treatment, but the first step on a treatment pathway which has significant consequences in adulthood. They have also agreed that the evidence for their use is lacking, and the long-term outcomes are unknown. We argued that this is an experimental treatment and many children will not be able to weigh the implications of giving their consent, and again the Court has agreed.

My concerns over the use of this treatment and the practices at the Tavistock have been validated by this judgement. The Court has reiterated its protective role when concerned with the best interests of a child or young person.

I hope this judgement will provide a safety net to prevent the unsupervised medical experimentation on children, like my daughter, by an institution charged with helping to alleviate her distress.

Mrs A’s Statement to Bayswater:

This week, The High Court will pass judgment in a landmark case brought by Mrs A, the mother of a trans-identified teen and Keira Bell, a young woman who detransitioned after taking puberty blockers and cross-sex hormones. They asked the court to determine if minors could legally consent to taking puberty blockers to halt the progression of adolescence in young people who identify as transgender.

The parents in this case have been accused of being bigoted, transphobic and even abusive; and in not affirming their daughter as a son, they risk the well-being, and even the life, of their child.

I am this mother, and I want to tell you why I am not any of these.

The media portrayal of a family whose child who has come out as transgender is often celebratory. The child is lauded for their bravery with coming out assemblies at school. National newspapers congratulate the parents for their uncompromising acceptance, and describe the child with new pronouns and picture the child in stereotypical gendered clothing to show who they ‘truly are’.

But for many parents this does not reflect their experience. For some families, like mine, the declaration of a trans identity is the result of a complex interplay of underlying factors. Depression, social isolation or peer alienation are common. Many are looked after children or have suffered significant trauma. Large numbers are autistic.

Many do not present as transgender until adolescence but with claims they have always felt this way; they claim an innate gender identity which either they have hidden since early childhood, or only came to realise in their teens. Parental evidence to the contrary may be overlooked or simply ignored.

Exploration of this new persona is inviting and liberating, but it comes at a cost. Parallel to the new identity comes the request for a treatment path that starts with puberty blockers, advances to cross sex hormones and thence to surgical removal of breasts or reproductive organs.

Multiple surgical interventions, loss of fertility, loss of sexual function, potential effects on bones and brain: our children dismiss these consequences as trivial. How can they consent to this treatment when they do not understand how significant and life changing it is?

The decisions for parents about the course of action to take is not an easy one. We have a binary decision to make: do we accept and affirm the new identity and agree to a referral for medical intervention that may render our child infertile, or do you take a more cautious approach, preferring to watch and wait, whilst exploring underlying causes for the development of this new identity, for which there has often been no prior indicator of distress?

Neither path is one any parent wishes to be faced with, but confronted with it we are. And neither parent makes their choice through hate or bigotry. One avenue allows the child to lead the way, ensuring their immediate happiness and validation, the other utilises parental experience to foresee obstacles our child cannot.

When a child declares they are transgender, parents go looking for advice. What we often find is a single narrative that is centred around the risk to our child. If our child is not affirmed, the risk is death by suicide. Would you rather a dead daughter or a live son? It is a line that is irresponsibly overused in much of the pro-affirmative media coverage and often becomes the single most powerful motivator in a parent’s decision.

I can’t think of a more devastating situation than the death of a child, by whatever cause. However, childhood suicide remains extremely rare, and the Samaritans and other suicide prevention organisations have stringent guidelines around attributing suicide to a single risk factor.

It is true that rates of suicidal thoughts and behaviours are higher in those who have a transgender identity, but on a par with other mental health conditions, such as depression. The link between affirmative medical treatment and an improvement in mental health or reduction in suicidality has not been demonstrated, and should not be used to indirectly pressure parents to ignore any doubts they have about the affirmative approach to treatment.

Parents need good evidence on whether one chosen path confers benefits over the other. Carl Heneghan, Professor of Evidence Based Medicine at Oxford University looked at the data on puberty blockers and concluded that ‘the current evidence base does not support informed decision-making and safe practice in children.’ Together with the findings that almost all those who start puberty blockers go on to cross sex hormones, the preliminary data of a study into the use of puberty blockers showed an increase in self harming behaviours, and no reduction in gender dysphoria, raises serious concerns over whether this path could be causing more harm than good.

In asking for a judicial review, we sought an extra safety net for all our children. To allow decisions to be made in the best interests of the child, and not because of fear, misinformation or ideology. Parenting is always difficult. We ask ourselves if we have made the right decisions, taken the right path. We are faced with this impossible dilemma: affirmation and some relief from current distress, but ensuring your child has to take body altering medication for life; or watching and waiting, perhaps exacerbating their immediate discomfort, but postponing harms of infertility and irreversible changes their bodies until they have the wisdom of age.

Whatever our differences, we all want the best for our children. We want to help them mature into happy, healthy adults, able to make decisions for themselves. Is that not what parenting is about? But love and support does not have to look like affirmation, it can come in many forms. Now and through whatever decisions our daughter makes for herself in the future, I will always be her mother.

I do not believe that parents who are affirming are doing so from a place of hatred, and I wish others would not accuse me of the same.

Other Statements

The Tavistock and Portman NHS Trust also issued a statement.

Appeal

The Tavistock and Portman NHS Trust were given leave to appeal the decision. Seven intervenors were given permission to submit legal arguments in the appeal: These were The University College London Hospital NHS Foundation Trust, the Leeds Teaching Hospitals NHS Trust, Brook, Gendered Intelligence, The Endocrine Society, the Association of Lawyers for Children and Liberty.

This has greatly increased the cost of the case, which will be heard on the 23rd June 2021 and is being crowdfunded through Crowdjustice. Keira and Mrs A have expressed their heartfelt gratitude for the generosity of all those who have donated. If you haven’t already done so, you can donate to the appeal fund by clicking the link below.

The case of AB

The Family Court ruled in March 2021 that parents could provide consent on behalf of a child to the prescribing of puberty blockers. You can read our statement on the ruling here. In her update on the Crowdjustice page, Keira wrote:

This is very troubling as it exposes many parents to huge pressure to consent to this experimental and harmful treatment. It also leaves many children without protection from making drastic irreversible lifelong decisions. My hope is that our case will highlight the important role of the court in protecting children from ideologically driven experimental medical practice.

Media Coverage

https://www.theguardian.com/world/2020/dec/01/children-who-want-puberty-blockers-must-understand-effects-high-court-rules

https://www.telegraph.co.uk/education-and-careers/2020/12/04/light-keira-bell-case-schools-need-look-approach-transgender/

https://www.thetimes.co.uk/article/keira-bell-i-couldnt-sit-by-while-so-many-others-made-the-same-mistake-gb03n3mlr

https://www.spectator.co.uk/article/keira-bell-s-landmark-victory-against-hormone-blockers-for-children

https://news.sky.com/story/high-court-ruling-on-puberty-blockers-protects-teenagers-says-woman-who-sued-nhs-12147949

https://www.telegraph.co.uk/education-and-careers/2020/12/04/light-keira-bell-case-schools-need-look-approach-transgender/