An NHS trust challenging a landmark ruling over the use of puberty-blocking drugs for children
In December the High Court ruled that children under 16 with gender dysphoria can only consent to the use of hormone-blocking treatments if they are able to understand the “immediate and long-term consequences”.
However, the judges said it was “highly unlikely” that a child aged 13 or under would be able to consent to the treatment, and that it was “doubtful” that a child of 14 or 15 would understand the consequences.
The case was brought by Keira Bell – a 24-year-old woman who began taking puberty blockers when she was 16 before later “detransitioning” – against the Tavistock and Portman NHS Foundation Trust, which runs the UK’s only gender identity development service for children.
A mother of an autistic teenager who is on the waiting list for treatment, only known as Mrs A, supported Ms Bell in their successful legal challenge.
The Tavistock and Portman NHS Foundation Trust began its appeal against the ruling on Wednesday.
Fenella Morris QC, for the trust, said the decision “reset almost half a century of established law” and caused “serious distress to many young people and their families”.
In written arguments, she said: “The effect of the court’s judgment is to deny trans children and young people access to treatment which they desperately want and need. It is unclear what ‘benefit’ there is to be gained from this.”
She continued: “It undermined the entitlement of children under the age of 16 to make decisions for themselves when they have been assessed individually as competent to do so by their treating clinicians.
“It intruded into the realm of decisions agreed upon by doctors, patients and their parents where the court had not previously gone.”
At the start of the hearing, Ms Morris told the court that puberty blockers are used “to reduce distress” for children with gender dysphoria, allowing them to make decisions about their bodies in the future.
She continued: “Having reduced that distress, it creates the possibility to take time to consider options … it allows the child to make the choice.
“If puberty progresses without pause, then the distress which is caused by the progress of puberty inhibits the thinking which allows the child to make an informed choice.”
She added: “Not providing treatment means that the child remains in a position of distress and difficulties in making choices about what to do next.”
Human rights group Liberty, which is intervening in the case, argued that the ruling imposed a serious restriction on the rights of transgender children and young people to “essential treatment”.
Its barrister, Jason Coppel QC, said in written arguments: “Treatment for trans children and young people is particularly important and time-sensitive because failure to provide it leads them to irreversibly develop further characteristics of their birth sex, which can cause serious harm to their mental health and make subsequent treatment more invasive.”
Ms Bell’s lawyers previously argued there is “a very high likelihood” that children who start taking hormone blockers will later begin taking cross-sex hormones, which they say cause “irreversible changes”.
However, the Court of Appeal heard that it is not inevitable that a young person will move from puberty blockers to cross-sex hormones – which will only be prescribed to those over 16 – with even fewer going on to have surgery.
Ms Morris later said that puberty blockers are said to be “fully reversible” in international guidelines relied upon by the trust.
The barrister also said that children or young people who are considering going on to puberty blockers are told about the effects on their fertility that may be caused by later stages of transition.
Arguing that it is not inevitable that a young person will continue on to cross-sex hormones after puberty blockers, she added: “The question is whether a child is counselled about fertility implications at the next stage and you can see from the material … all of that is explained at the initial stage.
“There is no suggestion anywhere that this is one pathway … there is no shying away from explaining to children and young people what the possibilities are.”
Jeremy Hyam QC, for Ms Bell and Mrs A, argued that the appeal should fail as it did not find any “material errors” in the original ruling.
In written arguments, he said: “The need for a child to understand, retain and weigh up the salient facts is all the more important because, unlike life-saving cancer treatment, there is much uncertainty as to what the benefits of puberty blockers actually are.”
Addressing the court on Wednesday afternoon, Mr Hyam said: “Right at the heart of what the court was concerned about was how can it be said that children of 10, 11, 12 have any proper conception of what sexual function is.”
The hearing before Lord Chief Justice Lord Burnett – sitting with Sir Geoffrey Vos and Lady Justice King – is expected to last two days, with judgment given at a later date.
Published: by Radio NewsHub