The High Court’s ruling that children under the age of 16 are unlikely to be able to consent to receiving medical treatment for gender dysphoria is an attack on the rights of trans and gender non-conforming people throughout the UK.
The case against the NHS Tavistock Clinic, brought by Keira Bell who regrets her transition, and “Mrs A”, who is concerned that her child may want to transition, rests on false claims and the infantilisation of teenagers. They argue, for example, that puberty ‘blockers’ are an ‘experimental treatment’ – in fact, they have been used for decades to pause precocious puberty in young children, and when the child stops taking them they go through a typical puberty. It would be more accurate to call them ‘puberty delayers’ than ‘blockers’. Giordano and Holm (2020) explain in detail that prescribing puberty delaying medication is not experimental and is ethical if it is in the child’s best interests. TransActual has collated research in this area and others which demonstrate that puberty delaying medication is not dangerous for children. The dangers of not blocking puberty include far more invasive surgeries on trans adults than would otherwise be required, along with the psychological distress and dysphoria caused by going through puberty in a gender the child does not feel comfortable in.
The case itself is ridiculous in that neither claimant was prescribed or represents anyone who was prescribed puberty delaying medication. Despite some claims to the contrary, Mrs A’s child has not, in fact, been referred to the Tavistock, and according to the Tavistock’s own guidelines would not be prescribed puberty delaying medication because they would not have parental consent. The judgment describes her interest as ‘theoretical’ – so why was her complaint about a service her child has not used even heard? And while Ms Bell’s case is unfortunate, she represents a vanishingly small minority of people who regret their transition – and even in her case, she was not prescribed puberty delaying medication before she turned 16.
This judgment led to an immediate change in the NHS guidelines. Children can no longer be referred for hormone delaying medication, and any children who are already receiving it must now face a clinical review. It is not clear at this stage whether they can be prescribed further medication between now and the review date. It also seems that 16 and 17 year olds receiving gender affirmation hormones will face a review. The possible psychological and medical impact of this is deeply concerning.
This is not just an attack on trans children’s rights, it sets a dangerous precedent in relation to children being able to consent to and access medical care. The judgment argues that to be considered ‘Gillick competent’ – able to make their own decisions regarding medical treatment – trans and gender non-conforming children must not only understand the consequences of taking puberty delaying medication, but also the potential consequences of gender affirmation hormones they may take in the future. This is a moral judgement, and not a legal one.
This judgment leads to some serious logical issues – if a child has to consent to later hormone treatment to consent to puberty delaying medication, does that mean they don’t need to reaffirm their consent when receiving hormone treatment? In addition, children cannot currently receive gender affirming hormone treatment until they are 16, at which point they do not need to be ‘Gillick competent’ as they are considered statutorily competent: having to prove Gillick competence for medical treatment they cannot have until they are over 16 is a ludicrous requirement.
With a properly funded and democratically run healthcare system people, including children and teenagers, would have access to all the information and different treatment options and be able to make a genuinely informed choice. The right to decide one’s own medical care as far as possible must be defended.
Previous guidelines on assessing whether children are ‘Gillick competent’ have been clear that it depends on the child and their specific situation. The solicitor for the claimants said that they wanted to push Gllick to ‘breaking point’ – this judgment does that.
It is no surprise that the solicitor for the plaintiffs, Paul Conrathe, would argue in this way. Conrathe worked with the “ProLife Alliance” and sought an injunction to prevent his client’s ex-girlfriend from accessing an abortion. Conrathe has argued against ‘Gillick competence’ in relation to under-16s accessing confidential advice on abortion or even contraception. In an ongoing case he is arguing that NICE acted unlawfully by not informing a woman of the claim that a foetus can feel pain (contrary to the view of the RCOG). Many of the groups supporting this case claim to be “feminists” – supporting a case being argued by an anti-abortion solicitor is a strange type of feminism.
Anti-abortion activists such as the Christian Institute unsurprisingly welcomed the ruling, as they can see it is a step towards undermining abortion rights. Where will the transphobic “feminist” groups backing this ruling be when Conrathe and the Christian Right try to take away under-16s access to confidential advice on contraception or abortion? Groups such as “Woman’s Place UK” claim that trans rights threaten women’s rights. In this case, opposing trans rights threatens women’s rights.
During the ruling itself, three organisations made submissions to the court: Stonewall and Mermaids supporting the Tavistock, and ‘Transgender Trend’ supporting the claimants. The court rejected both the pro-trans submissions, but accepted the transphobic submission. The court also did not hear any submissions from trans children about their treatment or experiences. This shows the court’s bias from the start, and that we can’t trust judges to defend trans people’s rights.
The judges also expressed “surprise” on a number of occasions that the lawyers for Tavistock did not have certain statistics or figures. It is not a surprise to anyone who has experience of dealing with Gender Identity Clinics! The current average wait time for the Tavistock GIC is between 33 and 36 months, and they are currently facing legal action from a trans child who has been waiting over a year for his referral. These waiting times and the lack of detailed statistics available for the case is indicative of a service that needs to be improved with better funding, to cut waiting times and carry out more research.
This judgment must be seen in the context of a reactionary Tory government that has already abandoned Gender Recognition Act reform. The High Court is not politically neutral, it is influenced by the Government – judges should be elected by ordinary people, not appointed, and they should be subject to recall.
The Tavistock has immediately appealed the ruling, and it is very possible that their appeal will be successful. But we can’t rely on solicitors convincing judges to make the right decision – we have to do it ourselves. Immediate protests on the streets should be organised against this decision and its impact on bodily autonomy for children. Send a message to the court, to the Tories and to the transphobes – reverse this ruling, fund treatments properly, and extend trans rights to include self-identification!
The Labour Party under Keir Starmer is not a party that will fight for trans rights. Starmer has said he supports trans rights, but that isn’t enough – we need to fight, and he won’t be calling protests to defend them. We need to fight for trans rights in the trade unions, because positive legislation doesn’t mean anything without strong unions to ensure it’s implemented. And we need to link the struggle for trans rights with the struggle against women’s oppression and racism. ‘Black Trans Lives Matter’ marches of thousands showed the potential for these movements to develop.
To win trans liberation we need to fight for liberation for all oppressed people – that means fighting against the oppressive, transphobic capitalist system, and for a socialist world.