RACHEL SAVAGE and HUGO GREENHALGH
A British court ruled on Tuesday that under-16s are unlikely to be able to give informed consent to take puberty-blocking drugs in a landmark trial that has fueled global debate about the age at which a child can choose to transition gender.
The London-based NHS trust which runs England’s only youth gender identity clinic halted new patient referrals for the drugs after the High Court judgment and vowed to appeal – setting the stage for a Supreme Court showdown.
Presiding judge Dame Victoria Sharp said it was “highly unlikely” that a child of 13 or under “would be competent to give consent to the administration of puberty blockers”.
She added that it was “doubtful” that 14- and 15-year olds would be able to “weigh the long-term risks and consequences” of taking puberty blockers.
The ruling marked a partial victory for Keira Bell, 23, who took the drugs at the age of 16 and fears the treatment may have damaged her ability to have children.
Bell, who “detransitioned” in her early 20s and now lives as a woman, brought the case against the Tavistock & Portman NHS Foundation Trust.
She had argued for puberty blockers to only be prescribed with a court order for under-18s – which the court’s ruling stopped short of confirming – but she welcomed the decision.
“I’m delighted at the judgment of the court today, a judgment that will protect vulnerable people. I wish it had been made for me before I embarked on the devastating experiment of puberty blockers,” she told reporters outside the court.
Bell’s lawyer, Paul Conrathe, said the decision “opens the floodgates for expensive clinical negligence claims” and called on the government to launch a public inquiry.
Tavistock and Portman NHS Foundation Trust said it was disappointed with the ruling, which will make it harder for children to receive puberty blockers, and would appeal – meaning the case could end up before the Supreme Court.
“We understand that the outcome is likely to cause anxiety for patients and their families,” the Trust said, adding that it would not refer more patients to specialists who prescribe puberty blockers until it had “more clarity”.
Currently in Britain under a 1985 court ruling, children under the age of 16 can consent to medical treatment if they are deemed to understand and fully appreciate the implications, in what is known as the Gillick competence test.
‘NOT A CHOICE’
The case comes as increasing numbers of adolescents globally seek to change gender, dividing those who fear doctors are too hasty in prescribing puberty blockers and cross-sex hormones and those worried about access to medication they deem life-saving.
As courts and lawmakers from Canada and the United States to Mexico and Brazil weigh parental rights and the age at which someone can make medical decisions, Tuesday’s ruling stirred renewed debate.
“The practical effect of the judgment will be that puberty blockers will very rarely be prescribed to those under 16,” said Jolyon Maugham, a lawyer and director of the Good Law Project, a legal nonprofit that has worked on trans rights cases.
“(This) will mean that they are very rarely prescribed,” he said on Twitter, referring to the fact that the drugs are only used in patients undergoing puberty.
He said his organisation would soon publish advice “on whether families who take their child abroad for treatment are at risk of having their child taken into care”.
The mother of a trans-14-year-old who has filed legal action over waiting times at the Tavistock gender clinic said: “It’s a pretty devastating day.”
“There’s so much evidence that people don’t understand what it means to be trans … It’s not a choice,” she told the Thomson Reuters Foundation, asking not to be named to protect her son’s identity.
The case has become a lightning rod for concerns about a nearly 30-fold rise in child referrals to the UK clinic in the past decade, to 2,560 last year.
The World Professional Association for Transgender Health, a global body of doctors specialised in treating trans people, says puberty blockers may prevent the negative mental impact of gender dysphoria in puberty.
It described them as “fully reversible” but acknowledged concerns about possible impacts on bone development and height.
The judges said, however, that puberty blockers were a “pathway” to partially irreversible hormone treatment from age 16 and irreversible surgery from 18.
That meant children should understand the implications of those treatments before taking the blockers, the ruling said.
LGBT+ advocates questioned that view.
“We believe this is an extraordinary extension of the principle of informed consent,” said Nancy Kelley, the chief executive of LGBT+ advocacy group Stonewall.
The Tavistock’s Gender Identity Development Service describes the treatments as “staged” on its website, with the blockers giving children “time to consider their options”. – Thomson Reuters Foundation.