Alarm Bells: The court’s discriminatory stance towards young people with gender dysphoria in Bell v Tavistock - Guest post by Anu Lal

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Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) considered whether children/young people with gender dysphoria can be Gillick competent to consent to receiving puberty blockers.

Starting with definitions: a gender dysphoria diagnosis involves ‘a difference between one’s experienced gender and assigned gender, and significant distress or problems functioning’ [at 12]. As such, individuals experiencing gender dysphoria may seek to live according to their perceived identity. Moving onto puberty blockers, they can be used to stop the onset of puberty at a very early age. In the context of gender dysphoria, they have been used to give a young person time to think about their gender identity without experiencing pubescent changes.

The case involves two claimants. The first claimant underwent gender transition. She was referred to the Gender Identity Development Service at age 14 and had her first appointment at age 16 and eventually had a double mastectomy at age 20. She dismissed the doubts she felt about the transition. It was only in 2019 that the claimant stopped taking testosterone and seeks to change her legal sex back to that on her birth certificate. The claimant remarked that at age 16, she was not thinking about children - now, she regrets that she will not be able to breastfeed later in life.

The second claimant has a 15-year-old daughter with mental health and behavioural problems who ‘is desperate to run away from all that made her female’. Without parental consent, the daughter would not meet the service’s criteria in any case, so the second claimant’s interest in the case is mostly theoretical.

The claimants’ primary submission is that children or young persons under the age of 18 are not capable of giving consent to the administration of puberty blockers. They also argued that the information provided by the service was misleading and inadequate for recipients to provide informed consent.

The judgment makes two important rulings:

1. Court authorisation is henceforth required before puberty blockers are prescribed. This even applies to 16 to 17-year-olds who would otherwise benefit from a legal presumption of capacity to consent.

2. The court considered that it is ‘highly unlikely’ and ‘doubtful’ that under-16s (a child under 13 and a child aged 14 or 15 respectively) could achieve the competence to consent to receiving puberty blockers.

The court’s decision has three immense implications.

Firstly, the court treats gender identity issues discriminately. The court saw the decision to take puberty blockers as one involving mature themes regarding sex and fertility consequences, that a child under 16 would find it extremely difficult to make decisions about in their current life stage. However, in Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112, a girl under 16 was deemed able to consent to receiving contraceptive advice and treatment. Contraception is far more deeply connected with adult issues of fertility and sex. Yet, the court’s application of Gillick competence discriminates against children experiencing gender dysphoria.

Secondly, the court’s reasoning improperly conflates consent. The court decided that it was ‘highly unlikely’ and ‘doubtful’ for under 16s to consent to receiving puberty blockers. However, this decision was reached by the court’s conflating the decision to receive puberty blockers (a short-term, reversible, non-invasive prescription used in non-gender dysphoria contexts) with the entire gender dysphoria ‘treatment pathway’. The treatment pathway involves life-changing, irreversible surgery. They conflated these decisions as most children and young people who start puberty blockers go on to continue with other treatments such as surgery later on in life. But the court failed to consider - perhaps that was because they were trans individuals seeking to actualise their experienced gender, rather than being “stuck” or committed to a ‘treatment pathway’ just because they had started on it.

Thirdly, the court’s decision erodes the right to bodily autonomy for young people with gender dysphoria. Throughout the judgment, the court failed to fully appreciate the significance of first-hand accounts of the benefits of puberty blockers, i.e. that they ‘helped my mental health’. Medical expert evidence given in court expressed that puberty blockers ‘may help...with reducing the risk of reduction of suicidal ideation and actual suicidal actions themselves’. This overly-paternalistic approach neglects consideration that a child’s best interests could lie in speedy prescription of puberty blockers, which the requirement for court authorisation impedes.

As a result of this judgment, referrals to the Gender Identity Development Service are currently halted. The judgment bears life-changing consequences for children and young people experiencing gender dysphoria. Much still remains to be seen following this judgment. What is clear, is that life for young people questioning their gender identity has become a lot more difficult.

The full judgment can be read here.

Anu Lal is an aspiring family law barrister studying the Bar  Practice Course at the Inns of Court College of Advocacy.