Although there is longstanding evidence of young people identifying as non-cis for (at least) a century, there has been little public awareness of gender diverse children in England until 2015-2020. Coverage of these people’s identities has been reported in the media, dramatised on television, and discussed in a growing number of academic books and papers. Much of this coverage has, however, failed to engage with the views and lived experiences of young gender diverse people in their sex assigned at birth, and perpetuated misleading information regarding their intentions to undergo puberty blocking and cross-sex hormone therapy. Very few legal provisions exist in England, or indeed the world, protecting young non-cis identities and rights. This is evident in the exclusion of under eighteens from the Gender Recognition Act (2004) and in gaps protecting young gender diverse people, producing what Ana-Maria Bucataru describes as ‘a chain of human right infringements’. Given that non-cis youth form a minority who frequently experience violence, prejudice, discrimination and mental illnesses related to their gender identity, manifesting in self-harm and suicidal ideations, it is startling that children’s rights have been excluded from the UK legislative agenda and neglected by the courts in England.
In December 2020, the High Court in England was handed a unique and timely opportunity in R (Bell and Another) v Tavistock and Portman NHS Foundation Trust to uphold non-cis children’s rights, by recognising their identities as legitimate and worthy of affirmation through puberty blocking. The case involved a judicial review into the lawfulness of the Gender Identity Development Service (GIDS) prescribing puberty blockers (PBs) to individuals under the age of eighteen. The first, and most prominent, claimant was Kiera Bell. Despite identifying as female at the time of the review, Kiera had previously been prescribed PBs and cross-sex hormones (CSHs) through the Tavistock and Portman Clinic and acquired top surgery as an adult. Kiera’s motivation for issuing legal proceedings against GIDS was her belief that the processes through which she was prescribed hormones were not robust and that she should have been unable to access hormone therapy, given the understanding and maturity she possessed at the time. Similar concerns were raised by the second claimant, Mrs A, who expressed worry that her 15-year-old daughter may be harmed by PBs and CSHs, once she became eligible for treatment at Tavistock. In response, counsel for the Tavistock and Portman Foundation Trust, Fenella Morris QC and Nicola Kohn, demonstrated the amount of information given to young patients during consultations and stressed that GIDS only refer individuals under 16 years for puberty blocking if they are competent, as per the standard outlined by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority.[1]
Upholding the claimants’ submissions, Dame Victoria Sharp P, Lord Justice Lewis, and Justice Lieven concluded that the administration of PBs to individuals under eighteen is experimental and forms part of a treatment pathway, leading to CSH therapy and gender reassignment surgery later in life. In view of this, the court stated that Tavistock patients under sixteen must understand the implications of both PBs and CSHs, and retain, weigh, and understand the eight following pieces of information to be deemed Gillick competent and eligible for gender affirmative hormones:
(i) the immediate consequences of the treatment in physical and psychological terms;
(ii) the fact the vast majority of patients taking puberty blocking drugs proceed to taking cross-sex hormones and are, therefore, a pathway to much greater medical interventions;
(iii) the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery;
(iv) the fact that cross-sex hormones may well lead to a loss of fertility;
(v) the impact of cross sex hormones on sexual function;
(vi) the impact of taking this step on this treatment pathway may have on future and life-long relationships;
(vii) the unknown physical consequences of taking puberty blocking drugs;
(viii) the fact that the evidence base for this treatment is as yet highly uncertain.’
As GIDS’s modified Service Specification outlines, it is envisaged that GIDS, in conjunction with the Leeds Teaching Hospital and University College London, will apply under the inherent jurisdiction of the High Court, Family Division, for a best interests decision to determine whether a person under sixteen can meet the aforementioned criteria. Given the demanding and arduous nature of this test, and the court’s doubts about the capacity of persons aged fifteen years and under ‘to understand and weigh the long-term risks and consequences of PBs’, it seems highly unlikely that many individuals will satisfy this criteria and gain access to hormone therapy at GIDS.
A different approach was, however, adopted by the court regarding young people aged 16–17. Although the court confirmed section 8 of the Family Law Reform Act (1969) and section 1(2) of the Mental Capacity Act (2005), acknowledging that individuals aged 16 and over should be presumed competent to consent to surgical and medical treatment, they endorsed the conclusion reached in Re W (Children).[2] In this case, the Court of Appeal held that a person aged 16–17 can be protected under a court’s inherent jurisdiction if treatment is deemed not to be in their best interests. The judges in Bell did nonetheless emphasise that the courts should not adopt an intrusive jurisdiction, or have a role in decisions about puberty blocking in instances where a young person has capacity and there is no dispute with parents or doctors that treatment is in their best interests.
A unique opportunity in Bell to render young non-cis people’s identities, and rights, visible for the first time in English legal history was therefore lost. The court’s pathologised judgment did not include any rhetoric related to rights; focusing instead in the physical effects of PBs and young peoples’ inability to consent to hormones according to Gillick. The exclusion and invisibility of children’s rights in the regulation of hormonal interventions may be linked to adult views and voices dominating scholarship, litigation, and clinical policy, which project overly paternalistic notions of health, capacity and involvement whilst discouraging individual experiences of gender. Rights, nevertheless, play an important role in the context of paediatric gender affirmative care. In Michael Freeman’s words, they make ‘visible what has for too long been suppressed’, leading ‘different and new stories being heard in public’ and resolving what Peter Dunne describes as ‘the legal invisibility’ of non-cis youth. If the rights of young non-cis people had been considered in Bell, it is likely that the court’s attention may have been drawn to the value and purpose of Articles 3, 5, 6, 8, 12, 13, and 24 of the United Nations Convention on the Rights of the Child (1989) (CRC).
Published in the latest volume of Child and Family Law Quarterly, The Legal Rights and Wrongs of Puberty Blocking in England examines the recognition and implementation of these Articles across three areas – health, capacity, and involvement. It begins by describing the regulation of medical transition services for gender diverse in England, before illustrating the systematic barriers non-cis children must overcome to gain access to PBs. The article then unpacks the court’s classification of puberty blocking drugs as ‘very unusual treatment’, and suggests that PBs are used in a unique way to manage a normal part of human variance by facilitating self-actualisation and relief from psychosocial suffering. It then turns to address the court’s focus on the biological outcomes and uncertainties of gender puberty blocking drugs and proposes that Articles 3, 6, and 24 of the CRC play a valuable role in illustrating the psychosocial impact of administering and withholding PBs to young non-cis individuals. In relation to Article 3, it suggests that it is disconcerting that the judges interpreted best interests narrowly, and that empirical evidence relating to the intra-psychic and social dimensions of PBs did not inform their understanding of future welfare.[3] The article also considers how the judgment undermined an abundance of research, reports, and case-law demonstrating the ineffectiveness of age makers in determining an individual’s ability to make complex decisions about medical treatment.[4]
Building on this body of work, it recommends that the puberty blocking context offers a unique opportunity for a young individual’s capacity to be nurtured by adults, through clear and lengthy dialogue. This, it argues, encourages children to engage in action-oriented choices and become reflective decision makers, choosing to act in a manner that maintains their health. After this, the article demonstrates the broader impact of the High Court’s decision in Bell on an individual’s right to confidential advice and treatment. Whilst Bell and NHS England’s Service Specification disregarded parental consent as a route to puberty blocking, the article maintains that the role fashioned for parents in AB v CD and The Tavistock and Portman Foundation Trust and University College London NHS Foundation Trust and XY can be developed into a supportive and nurturing position, which is commensurate with Article 5 of the CRC. Finally, it argues that the Bell verdict and the later revisions to GIDS policy fail to adequately recognise the views of young non-cis people and involve them in decisions about their own treatment. Although it is important in all medical treatment contexts that a young person is involved in decision making, the article submits that it is particularly valuable in the puberty blocking context, given the internal and individualised nature of gender variance, transition, and patients’ needs. Subsequently, it illustrates the wider implications court interference has for patient involvement through Laura Lundy’s Model of Child Participation, which proposes that the fulfilment of Article 12 requires space, voice, an audience, and influence.
Looking ahead, there is optimism that the Court of Appeal will consider the impact of the High Court’s ruling on non-cis children’s rights, particularly in the context of health, capacity, and involvement. Given that the Appeal was held on 23-24th June 2021, it is likely that the judgment will be published in late July or early August. A welcome change from the earlier hearing, was the Court of Appeal’s decision to live stream the hearing on YouTube and allow some gender inclusive organisations, such as Gendered Intelligence and The Endocrine Society, to intervene in the appeal.
[1] [1986] AC 112. [2] [2018] EWCA Civ 664, [2018] 3 WLR 1819. [3] See, H. Stalford, K. Hollingsworth and S. Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing, 2017), 33–37. [4] See, for example, Re A (A Child) [2014] EWHC 1445 (Fam), [2014] Fam Law 1229, Re P (A Minor) [1986] 1 FLR 272, and Re Jamie [2015] FamCA 455.