Children under 16 who wish to undergo gender reassignment can only consent to having puberty blockers if they are able to understand the nature of the treatment, the High Court has said in a landmark ruling today.
The ruling came after Keira Bell brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children.
Ms Bell, a 23-year-old woman who began taking puberty blockers when she was 16, was injected with testosterone at 17 and had a mastectomy aged 20, before ‘detransitioning’.
She claimed she was treated like a ‘guinea pig’ at the clinic, and said doctors failed to carry out a proper psychiatric assessment and should have challenged her more over her decision to transition to a male as a teenager.
Though she is now in the process of transitioning back to a woman, she faces further legal hurdles because by law she is now a man, and may be infertile.
Her lawyers had argued that children going through puberty are, ‘not capable of properly understanding the nature and effects of hormone blockers’.
They said there was ‘a very high likelihood’ that children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause ‘irreversible changes’.
The Tavistock and Portman NHS Trust had argued that taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
The trust argued that medical specialists in this field should be able to make calls based on their assessments and claimed it was ‘a radical proposal’ to suggest children did not have the capacity to give consent.
But judges today ruled that both treatments were, ‘two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it’.
Speaking outside the Royal Courts of Justice after the ruling, Ms Bell said she was ‘delighted’ with the High Court’s ruling.
She said: ‘This judgment is not political, it’s about protecting vulnerable children. I’m delighted to see that common sense has prevailed.’
Keira Bell outside the Royal Courts of Justice in central London in January. The 23-year-old, who began taking puberty blockers when she was 16 before ‘detransitioning’, brought legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children
Miss Bell (pictured as a five-year-old) had treatment which began at the Tavistock in London
Miss Bell (pictured left, and right as a man), took testosterone, which left her with a deep voice and possibly infertile, and had a double mastectomy – but later realised she had ‘gone down the wrong path’. Right, She changed her name and sex on her driving licence and birth certificate, calling herself Quincy (after musician Quincy Jones)
What is gender dysphoria?
Gender dysphoria is a condition in which someone becomes distressed because they don’t feel that their biological sex matches the gender they identify as.
For example, someone may feel like a woman and want to live as a woman, but have been born with the anatomy of a man.
Gender dysphoria is a ‘recognised medical condition, for which treatment is sometimes appropriate’ and is ‘not a mental illness’, according to the NHS.
People who live as a gender which is not the same as their biological sex are called transgender.
Some people may choose to have hormone therapy – for example, to make them grow hair or develop breasts – or to have reassignment surgery to give them the genitals of a person of the sex they identify as.
People diagnosed with gender dysphoria are allowed to legally change their gender.
According to the charity Stonewall, as many as 1 per cent of the population may be trans – although accurate numbers are not known.
The legal challenge was also brought by Mrs A, the mother of a 15-year-old autistic girl who is currently on the waiting list for treatment.
She fears her daughter will be fast-tracked for transgender medical treatment once she is seen by clinicians at the GIDS.
In the judgment today, Dame Victoria Sharp, sitting with Lord Justice Lewis and Mrs Justice Lieven, said that children under 16 needed to understand ‘the immediate and long-term consequences of the treatment’ to be able to consent to the use of puberty blockers.
University College London Hospitals NHS Foundation Trust and Leeds Teaching Hospital NHS Trust – where children and young people experiencing gender dysphoria are referred to – had agreed.
But, in its ruling, the High Court said: ‘It is said therefore the child needs only to understand the implications of taking puberty blockers alone … in our view this does not reflect the reality.
‘The evidence shows that the vast majority of children who take puberty blockers move on to take cross-sex hormones.’
Outside court a statement was also read on behalf of Ms Bell’s fellow claimant, Mrs A, which read: ‘I’m relieved to hear the court have understood and agreed with our concerns about… treating children and young people with puberty blockers.’
Their solicitor Paul Conrathe said the ruling was ‘an historic judgment that protects children who suffer from gender dysphoria’.
He added: ‘Ultimately this case was decided on the facts that were known by the Tavistock.
‘Ironically – and as matter of serious concern – despite its international reputation for mental health work, this judgment powerfully shows that a culture of unreality has become embedded in the Tavistock.
‘This may have led to hundreds of children receiving this experimental treatment without their properly informed consent.’
The judges said in their ruling: ‘It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers.
‘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.’
They added: ‘In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment.
‘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.’
The court refused the Tavistock and Portman NHS Trust’s application for permission to appeal against the ruling and gave the Trust until December 22 to apply directly to the Court of Appeal.
Speaking before today’s ruling, Ms Bell said: ‘I made a brash decision as a teenager, as a lot of teenagers do, trying to find confidence and happiness, except now the rest of my life will be negatively affected.’
Ms Bell added: ‘Transition was a very temporary, superficial fix for a very complex identity issue.’
The Tavistock and Portman NHS Trust (file picture) runs the UK’s first gender clinic in London
What are puberty blockers and how can children transition?
If a child is under 18 and may have gender dysphoria, they’ll usually be referred to the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust.
GIDS has 2 main clinics in London and Leeds.
The team will carry out a detailed assessment, usually over 3 to 6 appointments over a period of several months.
Young people with lasting signs of gender dysphoria may be referred to a hormone specialist (consultant endocrinologist) to see if they can take hormone blockers as they reach puberty.
These hormone, or ‘puberty’ blockers (gonadotrophin-releasing hormone analogues) pause the physical changes of puberty, such as breast development or facial hair.
Little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria.
Although the Gender Identity Development Service (GIDS) advises this is a physically reversible treatment if stopped, it is not known what the psychological effects may be.
It’s also not known whether hormone blockers affect the development of the teenage brain or children’s bones. Side effects may also include hot flushes, fatigue and mood alterations.
From the age of 16, teenagers who’ve been on hormone blockers for at least 12 months may be given cross-sex hormones, also known as gender-affirming hormones.
These hormones cause some irreversible changes, such as breast development and breaking or deepening of the voice.
Long-term cross-sex hormone treatment may cause temporary or even permanent infertility.
In the judgment, Dame Victoria Sharp said their ruling was only on the informed consent of a child or a young person, not whether puberty blockers (PBs) were appropriate themselves.
The judges said: ‘The court is not deciding on the benefits or disbenefits of treating children with GD (gender dysphoria) with PBs, whether in the long or short term.
‘The court has been given a great deal of evidence about the nature of GD and the treatments that may or may not be appropriate. That is not a matter for us.
‘The sole legal issue in the case is the circumstances in which a child or young person may be competent to give valid consent to treatment in law and the process by which consent to the treatment is obtained.’
Why did the NHS let me change sex? Keira Bell tells her story in the hope that it will ‘serve as a warning to others’
IT engineer Miss Bell is pictured outside the Royal Courts of Justice in London in January
In an interview earlier this year, Keira told the Daily Mail what happened to her, in order to highlight her plight and, she says, serve as a warning to others.
Keira was brought up in Hertfordshire, with two younger sisters, by her single mother, as her parents had divorced. Her father, who served in the U.S. military in Britain and has since settled here, lived a few miles away.
She was always a tomboy, she said. She did not like wearing skirts, and can still vividly remember two occasions when she was forced by her family to go out in a dress.
She told the Daily Mail: ‘At 14, I was pitched a question by my mother, about me being such a tomboy. She asked me if I was a lesbian, so I said no. She asked me if I wanted to be a boy and I said no, too.’
But the question set Keira thinking that she might be what was then called transsexual, and today is known as transgender.
‘The idea was disgusting to me,’ she tells me. ‘Wanting to change sex was not glorified as it is now. It was still relatively unknown. Yet the idea stuck in my mind and it didn’t go away.’
Keira’s road to the invasive treatment she blames for blighting her life, began after she started to persistently play truant at school. An odd one out, she insisted on wearing trousers — most female pupils there chose skirts — and rarely had friends of either sex.
When she continually refused to turn up at class as a result of bullying, she was referred to a therapist.
She told him of her thoughts that she wanted to be a boy.
Very soon, she was referred to her local doctor who, in turn, sent her to the child and adolescent mental health service (CAMHS) near her home. From there, because of her belief that she was born in the wrong body, she was given treatment at the Tavistock
Keira had entered puberty and her periods had begun. ‘The Tavistock gave me hormone blockers to stop my female development. It was like turning off a tap,’ she says.
‘I had symptoms similar to the menopause when a woman’s hormones drop. I had hot flushes, I found it difficult to sleep, my sex drive disappeared. I was given calcium tablets because my bones weakened.’
Keira claims she was not warned by the Tavistock therapists of the dreadful symptoms ahead.
Her breasts, which she had been binding with a cloth she bought from a transgender internet site, did not instantly disappear. ‘I was in nowhere land,’ she says.
Yet back she went to the Tavistock, where tests were run to see if she was ready for the next stage of her treatment after nearly a year on blockers.
A few months later, she noticed the first wispy hairs growing on her chin. At last something was happening. Keira was pleased.
She was referred to the Gender Identity Clinic in West London, which treats adults planning to change sex.
After getting two ‘opinions’ from experts there, she was sent to a hospital in Brighton, East Sussex, for a double mastectomy, aged 20.
By now, she had a full beard, her sex drive returned, and her voice was deep.
After her breasts were removed, she began to have doubts about becoming a boy.
Despite her doubts, she pressed on. She changed her name and sex on her driving licence and birth certificate, calling herself Quincy (after musician Quincy Jones) as she liked the sound of it. She also altered her name by deed poll, and got a government-authorised Gender Recognition Certificate making her officially male.
In January last year, soon after her 22nd birthday, she had her final testosterone injection.
But, after years of having hormones pumped into your body, the clock is not easily turned back. It is true that her periods returned and she slowly began to regain a more feminine figure around her hips. Yet her beard still grows.
‘I don’t know if I will ever really look like a woman again,’ she said. ‘I feel I was a guinea pig at the Tavistock, and I don’t think anyone knows what will happen to my body in the future.’
Even the question of whether she will be able to have children is in doubt.
She has started buying women’s clothes and using female toilets again, but says: ‘I worry about it every time in case women think I am a man. I get nervous. I have short hair but I am growing it and, perhaps, that will make a difference.’
By law she is male, and she faces the bureaucratic nightmare of changing official paperwork back to say she is female.