Children under the age of 16 considering gender reassignment are unlikely to be mature enough to give informed consent to be prescribed puberty-blocking drugs, the high court has ruled.
Even in cases involving teenagers under 18 doctors may need to consult the courts for authorisation for medical intervention, three senior judges have ruled in an action brought against the Tavistock and Portman NHS trust, which runs the UK’s main gender identity development service for children.
An NHS spokesperson welcomed the “clarity” the decision had brought, adding: “The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for the under 16s, which in future will only be permitted where a court specifically authorises it. Dr Hilary Cass is conducting a wider review on the future of gender identity services.”
The 19-page judgment in effect introduces guidelines for the way in which the London clinic handles young patients who experience gender dysphoria – the condition where they are distressed because of a “mismatch between their perceived identity and … their sex at birth”.
The claim was brought by Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before detransitioning, and the unnamed mother of a 15-year-old autistic girl who is on the waiting list for treatment.
In their decision, Dame Victoria Sharp, president of the Queen’s bench division, Lord Justice Lewis and Mrs Justice Lieven, said a child under the age of 16 may only consent to the use of medication intended to suppress puberty “where he or she is competent to understand the nature of the treatment”.
Such an understanding must include “the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child”.
The judges said there would be “enormous difficulties” for young children weighing up this information and deciding whether to consent to the use of puberty blocking medication.
“It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers,” the judges added. “It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.”
For treatment of those over 16 it is normally presumed that they have the ability to give consent. But in gender reassignment cases where puberty blockers may lead to subsequent surgical operations, the judges said: “Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.”
At a hearing in October, lawyers for the claimants argued that children going through puberty were “not capable of properly understanding the nature and effects of hormone blockers”.
There is “a very high likelihood” that children who start taking hormone blockers, they added, will later begin taking cross-sex hormones, which they say cause “irreversible changes”.
The Gender Identity Development Service (GIDS) at the Tavistock clinic has been providing puberty blockers to children as young as 10 assessed as suffering from gender dysphoria, the judges noted.
Clinicians have required “the informed consent of those children and young persons to whom such drugs are prescribed”, the judgment explained. “The issue at the heart of this claim is whether informed consent in the legal sense can be given by such children and young persons.”
The Tavistock deals with cases referred to it from across England and Wales. Until 2011, puberty blockers were only available at GIDS for those aged 16 or older.
In the year 2019-20, of 161 children referred to GIDS, three were aged 10 or 11 and 95 under the age of 16.
Diagnosis of gender dysphoria involves children demonstrating at least six of a series of behavioural traits as well as an “associated significant distress or impairment in function, lasting at least six months”.
Those patterns of behaviour include:
• A strong desire to be of the other gender or an insistence that one is the other gender.
• A strong preference for wearing clothes typical of the other gender.
• A strong preference for cross-gender roles in make-believe play or fantasy play.
• A strong preference for toys, games or activities stereotypically used or engaged in by the other gender.
• A strong preference for playmates of the other gender.
• A strong rejection of toys, games and activities typical of one’s assigned gender.
• A strong dislike of one’s sexual anatomy.
• A strong desire for the physical sex characteristics that match one’s experienced gender.
A spokesman for the Tavistock and Portman NHS trust said the trust would seek permission to appeal against the ruling, adding: “The trust is disappointed by today’s judgment and we understand that the outcome is likely to cause anxiety for patients and their families.
“Our first duty is to our patients, particularly those currently receiving hormone blocking treatment, and we are working with our partners, University College London hospitals NHS foundation trust and Leeds teaching hospitals NHS trust, to provide support for patients concerned about the impact on their care.”
Speaking outside the Royal Courts of Justice after the ruling, Keira Bell said she was “delighted” with the ruling: “This judgment is not political, it’s about protecting vulnerable children … I’m delighted to see that common sense has prevailed.”
Paul Conrathe, the solicitor who represented both claimants, said the ruling was “an historic judgment that protects children who suffer from gender dysphoria … This may have led to hundreds of children receiving this experimental treatment without their properly informed consent.”
Lui Asquith, from the trans children’s charity Mermaids, said: “It’s frankly a potential catastrophe for trans young people across the country and it cannot be exaggerated the impact that this might have, not only on the population of trans young people that require hormone blockers, but it may potentially open the floodgates towards other questions around bodily autonomy and who has the right to govern their own body.”