Saturday 5 December 2020
This week’s high court judgement on puberty blockers has huge implications. It also raises questions about where the debate goes next, outside of the courtroom
To download the highlighted ruling mentioned in this recording, please tap here.
On Tuesday, three High Court judges ruled against the Tavistock and Portman NHS Trust in prescribing puberty blockers to children under 16 as a treatment for gender dysphoria. The case turned on the question of informed consent – i.e. the capability of a child under 16 to appreciate the long-term implications of the medical treatment. In medical law, this is known as Gillick competence – a reference to a 1985 House of Lords ruling in response to a case brought by Victoria Gillick about the ability of a child under 16 to consent to medical treatment, in that case contraception, without parental knowledge or consent. This week’s High Court ruling was a review of Tavistock policy following a case brought by Keira Bell, now 23, who as a teenager had sought to transition from her female birth sex to male, who had been put on puberty blockers, then moved to testosterone and, at the age of 20, had a double mastectomy. Last year, she began the process of detransitioning.
In recent years, the trans debate has been arguably more fraught and more punitive than any other. It’s been dominated by opinion, often in the absence of much knowledge of gender dysphoria or those seeking to treat it. The Tavistock ruling offers a rare glimpse; a glimpse into the realities of treating young people with gender dysphoria; the record of the treatments available; and the data, as well as the lack of data, in one of the most controversial areas of care. It’s an extraordinarily significant ruling. It’s a judgement, an explanation, a piece of reporting, and an alarm.
I’m James Harding, the editor of Tortoise, and so this week’s Editor’s Voicemail is going to be different. I’ve read and highlighted the sections of the 19-page ruling by Dame Victoria Sharp, the President of the Queen’s Bench Division, Lord Justice Lewis and Mrs Justice Lieven and it’s published alongside this recording. It really is worth reading.
As you can imagine, the ruling is methodical: it sets out the nature of the review. It’s explanatory: it describes gender dysphoria, the distress experienced because of a mismatch between a person’s perceived identity and their natal sex, i.e. their sex at birth. And it’s precise as to its remit: the court is not trying to assess the treatments for gender dysphoria, just whether a child under 16, or a young person under 18, is competent to make a decision on their own medical treatment.
As you’ll see if you read the highlighted copy of the ruling, there’s plenty that stood out to me. For example, the Gender Identity Development Service at the Tavistock is mandated by the secretary of state for health. In other words, this is an issue that won’t stay with the courts; it will, sooner rather than later, get political. The ruling explains the three phases of treating gender dysphoria: puberty blockers, then cross-sex hormones from around 16, then gender reassignment surgery after the age of 18.
It’s striking how frustrated the judges are by the lack of data. For example, they point out that since 2011 it’s been possible to offer puberty blockers to children under the age of 16, but the data is not available to explain the ages of the children that have received the treatment. They note, too, that there has been a 25-fold increase in referrals for gender dysphoria, from 97 children in 2009 to 2,519 in 2019. They report, for example, that there used to be a 50-50 split in natal male and female children, but last year, or at least by last year, it had switched to 76 per cent natal girls. And while they cite data from the Netherlands and Finland that shows the unusually high proportion of children referred for gender dysphoria who also have Autistic Spectrum Disorder, they don’t have any data on it from the Tavistock, nor, they suggest, has it been sought.
The length of time young people have to wait for treatment and the time and consideration the Tavistock clinicians put into advising them. The clinicians explain what is explained to the children. And there is a description of what is known about how and whether puberty blockers work: in short, the answer is that it’s inconclusive. Before June 2020, the NHS website said the puberty blockers were “fully reversible”. It’s striking that after June 2020 it was changed on the NHS website to say “little is known about the long-term side effects of hormone or puberty blockers in children with gender dysphoria”. And the ruling shows how children who start on puberty blockers are not just being given time to think, as much as they are being put on a pathway to cross-sex hormones, whose effects are certainly not reversible.
The reporting in the news this week picked up on the judges conclusions, which, in effect, severely inhibits the Tavistock’s ability to administer those puberty blockers – certainly not to anyone 13 or under, most generally not to 14- or 15-year-olds either and, even in the case of 16- to 18-year-olds, the judges suggest the clinicians may prefer to consult the courts first.
And then you have to ask: where does this leave us? I have to say, I don’t feel as though I have all the answers. But I certainly think it leaves us with more questions:
- For one, the court has, in effect, asserted itself over the clinicians and, by extension, patients and the people. When does this argument, that has raged in social media and now engaged the courts, move into the world of politics? The Tavistock’s Gender Identity Development Service is, as I say, mandated by the Secretary of State. These judgements, both in healthcare and in the nature of childhood, speak to our values as a society. And as we’ve seen in issues from privacy to right to die, these moments on the steps of the High Court often find their way into Parliament. When and how will this become political?
- The inadequacy of the data is a theme of this ruling. Why? Has it been the case that people have not wanted to ask the questions for fear of the political and public backlash when they find the answers? Is it that the data is considered misleading, reducing lives to numbers? It’s unlikely that healthcare professionals in an area like this are incurious, so why is so much critical information missing?
- Medically, what actually works? The ruling hints at private practitioners now offering treatments abroad, but are they legitimate and are they effective? What can we learn both from the experience inside the Tavistock and in other treatment centres around the world of the genuine efficacy of therapies and treatments?
- What do we expect and allow of children? This is a ruling that’s framed in terms of medical law and Gillick competence. But it asks us to weigh mental health and individual identity, on the one hand, with individual maturity and institutional, social and parental responsibility, on the other. The question the Tavistock ruling poses more widely is this: what should we responsibly expect of children – and of ourselves?
Thank you for taking the time to listen. Do have a read of the ruling. And have a very good weekend.