The Court of Appeal has today overturned the judgment handed down in Bell v Tavistock by the Divisional Court, and rejected the claim for judicial review. We are proud to have stood in coalition with subject experts and co-interveners Brook, The Endocrine Society, and Liberty, as well as having the backing of legal experts The Good Law Project. Thanks to this intervention, the court heard submissions from GI — the only trans-led organisation given a voice in this appeal — and other experts in reproductive health, young people’s competency, and endocrinology.
The appeal judgment confirms that it is ultimately “for clinicians to exercise their judgment” around the referral of patients for puberty delaying treatment, seeing as how they are already “subject to professional regulation and oversight”. The Court of Appeal has stated that the original Divisional Court decision covered areas which “were not suitable for determination in judicial review proceedings” and that “the claim for judicial review should have been dismissed” outright. The Court of Appeal decision is great news for trans youth, and reiterates that it “was inappropriate for the Divisional Court to provide the guidance” in the first instance.
Gillick Competence
The guidance as demanded by the Divisional Court has been found to be “an improper restriction on the Gillick test of competence”. We believe it is clear from the Court of Appeal’s judgment that decisions around Gillick competence are the same for trans youth as for all others, and that no unique restrictions need be placed on a person’s ability to autonomously consent simply because they are trans.
The Court of Appeal’s decision will sound a clarion call that “such policy decisions are for the National Health Service, the medical profession and its regulators”. Rather than forcing patients to go through a court process to gain access to puberty delaying treatment “when there was no legal obligation for such an application to be made”, the new decision confirms that this is ultimately “for clinicians to exercise their judgment” whilst seeking to obtain Gillick competence from patients.
What now?
To our knowledge, not a single patient has been put forward to the endocrinology teams since the Divisional Court’s December 2020 decision. The Court of Appeal highlighted that at no point were the Tavistock’s policies and procedures found to be unlawful. It is therefore clear that there is no reason for NHS England to not return to its original treatment pathways. NHS England should no longer seek a court application for referral for endocrinology services at GIDS.
Pandora’s Box has been opened: trans-related healthcare for young people has been highly politicised, and this is unlikely to stop as a result of the Court of Appeal’s decision. It is important for us all, then, to be reiterating the simple fact that it is for clinicians, not courts or politicians, to use their skills to weigh up whether robust consent has been achieved.
Gendered Intelligence believes it is important that NHS England update/revert their guidance to reflect the Court of Appeal’s decision, and we will be writing to them to ask that this is looked at urgently. Young trans people and their families will rightfully be asking when their endocrinology care can resume through GIDS. Until the NHS England guidance is changed, a court order will still be needed for referral for endocrine services. We would venture that until the guidance changes, there will continue to be no new referrals. As with the changes that NHS England made to GIDS protocols in response to the original decision, we will be asking them what their policy/ procedure advice will be now, to help young trans people and their families to know what to expect after this difficult year.
We understand that this has been a difficult time for trans people, trans youth and their families in particular, not just in the UK but around the world. The original, now-quashed, decision from Bell v Tavistock sent alarm bells ringing to all who were paying attention, and attempts were made to use this bad decision to help set precedent in other jurisdictions and with other medical-related issues (see addendum).
At Gendered Intelligence, we are very happy that the Court of Appeal has reiterated the importance of Gillick competence for all, and without undue and unusual restrictions. We remain cautiously optimistic that things will improve for trans youth and that their healthcare needs will be met in a timely fashion.
If you want to know more about Gendered Intelligence’s stance on puberty delaying treatment as a whole, click here for our new position statement (PDF).
Addendum
When we originally posted about the decision to bring a judicial review against NHS England, we warned of the thin end of the wedge. We could not have known the prescience in the below with regards to the pandemic which had not yet reached the UK:
If this case is successful in removing Mrs A’s child’s right to consent to medical treatment, the line in the sand is removed: A loss to trans youth is a loss to all
In these days of rife mis- and disinformation, the Divisional Court’s now-overturned decision is being held up as gospel by many people opposed to the vaccination of under-16s. Even if the original decision had a larger scope than the care pathways of children with gender dysphoria — which, we must reiterate, it did not — the High Court has annulled this decision. At Gendered Intelligence, we are not interested in debating the merits of vaccination – the evidence speaks for itself – but would highlight only the weaponization of court decisions made around trans youth to potentially harm the wider population. Trans people and our rights are the canary in the coalmine, and any attempt to rescind or damage our rights will inevitably be used to damage the rights of others. This is but one reason why we ask that people stand with trans, gender diverse and indeed all LGBTQ people – especially youth — because “a loss to trans youth is a loss to all”.
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