London, England, Sep 17, 2021 / 17:01 pm
A woman who says she was too young when a gender clinic prescribed her puberty blockers has lamented that a U.K. appeals court has overturned a previous decision holding that children under age 16 are unlikely to be able to consent.
“I am obviously disappointed with the ruling of the court today, and especially that it did not grapple with the significant risk of harm that children are exposed to by being given powerful experimental drugs,” said Keira Bell, according to the U.K. newspaper The Guardian.
Bell, who is now in her mid-twenties, was one of two claimants in a legal challenge to the Tavistock and Portman NHS Foundation Trust, which runs Britain's main Gender Identity Development Service for children. She was prescribed puberty-blocking drugs around the age of 15 to stop the process of developing female sexual characteristics. A year later she began to take cross-sex hormones to promote the development of male characteristics and underwent breast removal surgery at the age of 20.
She said the clinic should have challenged her more over her desire to have a gender transition. Both claimants argued that prescribing puberty-blocking drugs to children under age 18 was unlawful as they were not competent to offer valid consent to the treatment.
“A global conversation has begun and has been shaped by this case,” Bell said Friday. “There is more to be done. It is a fantasy and deeply concerning that any doctor could believe a 10-year-old could consent to the loss of their fertility.”
She said she had “no regrets” about bringing the case. Doing so “shone a light into the dark corners of a medical scandal that is harming children and harmed me.” She aims to seek permission to appeal to the Supreme Court, BBC News reports.
The Court of Appeal overturned a December 2020 high court ruling that said children are unlikely to be mature enough to give informed consent to medical treatment involving drugs that delay puberty.
The Sept. 17 ruling said there are “difficulties and complexities” in these cases, but that “it is for the clinicians to exercise their judgement knowing how important it is that consent is properly obtained according to the particular individual circumstances.”
A Tavistock spokesperson praised the ruling, saying it “upholds established legal principles which respect the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures.”
“It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment,” the spokesperson said.
Backers of puberty blockers prescribe them to children who are experiencing gender dysphoria. The NHS defines this as “a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity.”
The Tavistock Gender Identity Development Service backed their use because this “allows a young person time to consider their options and to continue to explore their developing gender identity before making decisions about irreversible forms of treatment.”
It argued against the high court ruling, saying it interfered with the ability of children to make decisions for themselves. It said the expert evidence presented against its practices was “partisan.”
The other claimant in the case was the mother of an unnamed teenage autistic girl waiting for treatment.
“A child experiencing gender distress needs time and support – not to be set on a medical pathway they may later regret,” said the claimant, identified in news reports only as Mrs. A.
(Story continues below)
In the past five years, the number of people referred to the Gender Identity Development Service has almost doubled. According to the service's website, there were 1,408 referrals in 2015-16 and 2,728 in 2019-20.
Alison Holt, social affairs correspondent for BBC News, said that the ruling has effectively “removed the courts from the decision-making process in all but the most difficult cases.”
In the December high court decision, the judges said that children under the age of 16 could only consent to puberty blockers if they were “competent to understand the nature of the treatment.” This includes “an understanding of 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.”
“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.”
The December decision said the clinical interventions are still “innovative and experimental.”
Puberty-suppressing drugs had been prescribed to children as young as 10 on the basis of informed consent. This is a fundamental principle of modern medicine in which a doctor informs a patient of potential risks before they agree to undergo medical treatment.
In March 2021, the High Court’s family division allowed parental consent to puberty blockers for children under 16, so long as safeguarding measures were considered.
In September 2020, before the first High Court ruling, the National Health Service had commissioned Dr. Hilary Cass to review its gender identity services, an NHS spokesman said. This review aimed to “to ensure the best model of safe and effective care is delivered.” The review will set “wide-ranging recommendations,” including the use of puberty blockers and “the many contested clinical issues identified by the court.”
The review is not yet finished.
In March 2021, Sweden’s Karolinska University Hospital, which treats minors with gender dysphoria, said it would cease providing “puberty blocking” drugs or cross-sex hormones to children under the age of 16. It cited concerns about long-term effects of the drugs and hormone procedures, as well as questions about the fully informed consent of patients under the age of 16. Its statement cited the December 2020 decision against Tavistock. Children with gender dysphoria would still be able to receive psychological and psychiatric care, it said.
In October 2019, a Swedish investigative television show reported that the hospital performed double mastectomies on children as young as 14 years old.
Other critics of transition procedures have come forward. In a June 25 essay for Newsweek, New York woman Grace Lidinsky-Smith said she regrets going through gender transition surgery. She believed other factors motivated her decision to seek a gender transition.
Lidinsky-Smith is president of the Gender Care Consumer Advocacy Network. The organization lobbies against efforts legally to prohibit “trans care,” arguing instead for best practices and accountability for medical providers. She backs the standards of WPATH, the World Professional Association for Transgender Health, but laments that there is no requirement that these standards be followed.
Paul McHugh, psychiatry professor at the Johns Hopkins University School of Medicine, has criticized WPATH standards and purported gender transition protocols that progress from social transition, to medical interventions and to surgery. He says they lack evidence.
McHugh provided testimony in an amicus brief for the U.S. Supreme Court Case of Harris Funeral Homes v. Equal Employment Opportunity Commission, decided in 2020. There, he wrote that WPATH itself has said that “no controlled clinical trials of any feminizing/masculinizing hormone regimen have been conducted to evaluate safety or efficacy in producing physical transition.”
The Biden administration, citing its interpretation of sex discrimination law, backs a federal requirement that doctors and insurers provide or cover gender-transitioning procedures upon referral. Last month a federal judge ruled in favor of Catholic and Christian health care organizations opposed to this mandate.
Some U.S. and European jurisdictions have passed strict laws banning “conversion therapy” that seeks to change sexual orientation and gender identity. Other jurisdictions have sought to ban gender transition for minors.
