High Court rules children under 16s can only consent to puberty blockers 'if they understand treatment'
Video report by ITV News Correspondent Juliet Bremner
Children under the age of 16 who wish to undergo gender reassignment can only consent to having puberty blockers if they understand the nature of the treatment, the High Court has ruled.
The case was brought by Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before “detransitioning” who argued that children are “not capable of properly understanding the nature and effects of hormone blockers”.
Ms Bell, took legal action against the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children.
The Trust says it plans to appeal the judgement adding that the ruling "is likely to cause anxiety for patients and their families".
Currently children under the age of 18 undergo a "detailed assessment" before receiving any treatment for gender dysphoria, according to the NHS website.
In a judgment on Tuesday, Dame Victoria Sharp said that children under 16 needed to understand “the immediate and long-term consequences of the treatment” to be able to consent to the use of puberty blockers.
Sitting with Lord Justice Lewis and Mrs Justice Lieven, Dame Victoria said that “in order for a child to be competent to give valid consent the child would have to understand, retain and weigh” a number of factors.
LGBQT campaign group Stonewall said the ruling was "very concerning and unclear judgement about trans young people's access to healthcare".
Stonewall added: "For young trans people who are following this case, today's ruling will be difficult news.
"We want you to know that we will always continue to fight for you. We see you, your identity is valid, and it cannot be taken away from you."
What is the current treatment for gender dysphoria for under-18s?
According to the NHS website, children referred to the Gender Identity Development Service at the Tavistock and Portman NHS Foundation Trust undergo "a detailed assessment" before any treatment.
This usually consists of three to six appointments over a period of several months.
The NHS also states that most treatments offered to under-18s, considered after assessment, are psychological rather than medical.
To be offered hormone blockers, referral to a specialist clinic is required and those wishing to take the course of treatment must "meet strict criteria" according to the NHS website'
Dame Victoria said these include "the immediate consequences of the treatment in physical and psychological terms" and the fact that "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".
The Tavistock and Portman NHS Trust argued that taking puberty blockers and later cross-sex hormones were entirely separate stages of treatment.
But, in its ruling, the High Court said: “It is said therefore the child needs only to understand the implications of taking puberty blockers alone … in our view this does not reflect the reality.
“The evidence shows that the vast majority of children who take puberty blockers move on to take cross-sex hormones.”
The court added that both treatments were “two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it”.
In a statement following the judgement, the Tavistock and Portman NHS Trust said: "The Trust is disappointed by today's judgement and we understand that the outcome is likely to cause anxiety for patients and their families.
"Our first duty is to our patients, particularly those currently receiving hormone blocking treatment and we are working with our partners [...] to provide support for patients concerned about the impact on their care."
At the conclusion of a brief hearing on Tuesday, the court refused the Trust’s application for permission to appeal against the ruling and gave the Trust until December 22 to apply directly to the Court of Appeal.
Mermaids, a charity supporting transgender children and their families, described the ruling as a "devastating blow."
Ms Bell was joined by another party in taking legal action, Mrs A, the mother of a 16-year-old autistic girl who is currently on the waiting list for treatment.
Speaking outside the Royal Courts of Justice after the ruling, Keira Bell said she was “delighted” with the ruling. She said: “This judgment is not political, it’s about protecting vulnerable children.”
Ms Bell added: “I’m delighted to see that common sense has prevailed.”
A statement was also read on behalf of her fellow claimant, Mrs A, which said: “I’m relieved to hear the court have understood and agreed with our concerns about… treating children and young people with puberty blockers.”
Their solicitor Paul Conrathe said the ruling was “an historic judgment that protects children who suffer from gender dysphoria”.
The judge said that for a child to be competent to consent to puberty blockers, they would also have to understand "the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery, the fact that cross-sex hormones may well lead to a loss of fertility (and) the impact of cross-sex hormones on sexual function".
Dame Victoria said children also needed to understand “the impact that taking this step on this treatment pathway may have on future and life-long relationships, the unknown physical consequences of taking puberty blocking drugs and the fact that the evidence base for this treatment is as yet highly uncertain”.
In a witness statement before the court in October, Ms Bell said: "I made a brash decision as a teenager, as a lot of teenagers do, trying to find confidence and happiness, except now the rest of my life will be negatively affected."
She added: "Transition was a very temporary, superficial fix for a very complex identity issue."
But the Tavistock and Portman NHS Trust challenged the claimants, claiming that they are seeking to “impose a blanket exclusion” on children under the age of 18 being able to consent to medical treatment, which they say is “a radical proposition”.
Fenella Morris QC, representing the Tavistock and Portman NHS Trust, said the use of hormone blockers “has been widely researched and debated for three decades”.
She added: “It is a safe and reversible treatment with a well-established history.”