Today’s judgment may initially appear disappointing for under-16s, but goes some way in confirming that 16 and 17 year olds are presumed to have full legal capacity to consent to medical treatment. Importantly:
“Doctors can continue to prescribe puberty blocking treatment if the patient is Gillick competent. The court found that the patient must understand not only the consequences of puberty blockers, but also the consequences of later, optional treatment which they may choose not to have when the time comes” (link).
The judgment will cause anxiety for people currently undergoing this treatment and their families, but we would like to reiterate that the Trust has stated it will continue to support patients. What this will look like remains to be seen, but it is not hyperbolic to say that it would be inhumane to abruptly cease any treatment. Clinicians have a duty of care to continue prescribing for those young people who have started hormone blocking treatment, and to offer support routes for any person denied treatment as a result of this ruling.
Our reading of the judgment is that:
- For anyone 13 and under, it is theoretically possible to commence hormone blocking treatment, but is practically impossible through the GIDS pathway
- For 14 and 15 year olds seeking to commence hormone blocking treatment through GIDS, it will be a very difficult journey and they may have to go to court to seek permission
- 16 and 17 year olds are less likely than younger people to face difficulties in access, but they may too have to seek court permission if a clinician deems it necessary
NHS England has updated its service specifications around this already.
As with so much of what is discussed about trans young people, the judgment seems to come from a place where a transition of any kind is a last resort, something entirely medicalised and highly stigmatised. This is not what we know to be true at Gendered Intelligence. From our trans youth service and mentoring support work in schools, as well as from our lived experiences as a trans-led organisation, we know that being supported socially is most important, along with building wider understandings of what it is to be trans.
The judgment claims that “it is the role of the court to protect children, and particularly a vulnerable child’s best interests” as though a child’s being trans is in and of itself a vulnerability. This is not just offensively ill-judged, but attempts to render all trans young people as in need of protection through virtue simply of being trans. Whilst we would say that being trans, in a systemically transphobic society creates places where you could be vulnerable to damaging discourse, a trans child is not inherently vulnerable. To the contrary, most trans children we know are incredibly strong, resilient, intelligent and understanding. What they need is timely, robust, and less onerous access to healthcare, not to be patronised and stonewalled by judges who believe they know better than medical doctors and clinicians.
What we do know is that the bar is so high, that the only people who can currently access hormone blockers are those who present as in extreme distress, and as extremely knowledgeable about what the potential outcomes could be for them following treatment. These are the young people who are likeliest to have not just parental support, but the financial ability to fall back on accessing puberty blockers through the grey market. These young people are of course likeliest to be the ones to go on to take cross-sex hormones, through virtue of their existent absolute surety as to who they are — this does not mean that one leads to the other on a straight path for all people. It must be understood that transitions, social and medical alike, are unique and individual – some will decide that cross-sex hormones are the right choice for them, and others will cease hormone blocking treatment entirely. There is no one way to come to personal and individual realisations of one’s relationship to gender and transition, as much as this judgment suggests this were the case. What we need is a better support process for young people to explore all their options and implications of medical intervention with adults they trust and are, in turn, trusted by society.
It is a good thing of course that young people are armed with as much information as possible so as to make informed and rational decisions about their own healthcare. The problem arises when a paternalistic judgment states that “it may be that Gillick competence cannot be achieved, however much information and supportive discussion is undertaken” and this is applied across the board. There will be people who cannot ‘achieve’ Gillick competency and those who can — a clinician is the best person to resolve this, not a judge with no obvious understanding or qualification in trans matters.
It is those who have no parental consent and no financial resource that the system has historically failed, and upon which this judgment delivers another devastating blow. Whilst hormone blocking treatment is likely to continue regardless for a determined few, via channels other than GIDS, our concern is that this simply pushes people into a grey market where they cannot undergo robust medical monitoring. Trans young people without access to hormone blocking treatment either via GIDS or from the grey market are not going to become any less trans. They will simply become disillusioned with the understanding that the press, the judiciary and the commentariat did not speak up for their right to autonomy when they could and should have.
We anticipate that the Tavistock and Portman NHS Trust will appeal the decision, bringing the challenge to the Supreme Court as a next step. If the appeal is granted, we expect the process to take at least a year until a judgment is reached, which may simply confirm the judgment as laid out today.
As a trans-led organisation, let us say that we are not just in shock at this decision, but appalled. It seems that for each step forward we take as trans communities, we take two steps backward in turn. At some point in the near future, the judiciary will have to level with the fact that trans children aren’t going anywhere, and that the best thing for all parties is to allow space for individualised decisions to be made by experts, not roll out confused diktats. Until then, know that Gendered Intelligence stands with all trans people, young and old alike, and will offer any support we can to keep our young people with us. If you need to speak to a dedicated youth worker, please email: firstname.lastname@example.org