The case was related to Gillick competence, the legal principle governing under what circumstances under-16s can consent to medical treatment in their own right. By contrast, people aged 16 or older were presumed to have the ability to consent to medical treatment (Gillick did not apply). The High Court (Administrative Court) ruling,[3][4] which was overturned on appeal, said that it was unlikely that a child under the age of 16 could be Gillick competent to consent to puberty blocking treatment. The court also said that "[in] respect of young persons aged 16 and over… we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment".
In September 2021, the Court of Appeal overturned the High Court judgment, and ruled that the High Court should not have issued guidance on the Gillick test and puberty blockers, because that court should have dismissed the case when it ruled that the Tavistock guidance was lawful. In a separate case (AB v CD and others), the High Court ruled that parents are allowed to give consent on behalf of their children to receive puberty blockers without having to gain a judge's approval.
Background
In October 2019, a legal claim (a request for judicial review) was lodged against the NHS Gender Identity Development Service (GIDS) at its satellite site in Leeds. The suit was brought by "Mrs. A", the mother of a 15-year-old patient on the GIDS waiting list, and Sue Evans, a former nurse at the Leeds GIDS satellite site.[5][6] It alleged that advice around hormone therapy was "potentially misleading" and that true informed consent could not be given under such circumstances. The suit described hormone therapy as "experimental" and stated that there was "robust evidence" to show long-lasting medical effects of hormone therapy.[6] The lawyer representing the claimants said the lawsuit would be "pressing the case of Gillick to its breaking point".[5]
Some time after January 2020, Evans passed on her role as claimant to Keira Bell.[7] Bell (referred to in court documents as Quincy Bell) began puberty blockers when she was 16, 1 year and 9 months after being referred to GIDS, with the hope of progressing on to testosterone later - which she did at 17. At age 20 Bell had a double mastectomy. In 2019, she stopped taking testosterone. Bell describes regretting her transition.[3]
Bell in hindsight described her transition as being related to her mother's alcoholism, struggling with puberty, struggling with being a lesbian, social isolation, and depression.[8]
High Court judgment
In the judgment delivered on 1 December 2020, which has now been overturned on appeal, the judges said that it was highly unlikely that a child aged 13 or under would be competent enough to give consent to puberty blockers, and that it was doubtful that 14 or 15 year olds could understand the long-term risks and consequences associated with them.[3] Where the young person is 16 or over, "we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment."[9]
The Court said (126) "Where the decision is significant and life changing then there is a greater onus to ensure that the child understands and is able to weigh the information" and concluded:[3]
A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long-term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.
Reactions to the High Court judgment
A spokesperson for the Tavistock and Portman NHS Foundation Trust (the defendant in the suit) said it was disappointed in the decision and intended to appeal.[10] Bell, one of the claimants, expressed approval of the judgment.[9] Alistair Robertson, a solicitor who advised Tavistock and Portman NHS Foundation Trust in the appeal said "We were disappointed with the Divisional Court's judgment. Despite making no finding of unlawfulness, the court still made a declaration of what, precisely, a child had to be able to weigh up before consenting to treatment with puberty blockers, and gave very strong 'guidance' on whether children in particular age groups would be able to give such consent."[11]
The UK human rights groups Amnesty International UK and Liberty issued a joint statement expressing disappointment in the judgment and concern "not only for what this means for the health and well-being of trans young people, but the wider implications this will have on the rights of children and young people of all genders, particularly on consent and bodily autonomy."[12]Mermaids, a UK charity for gender-variant and trans youth, described the ruling as a "potentially devastating blow to trans under-16s", and a "betrayal of trans young people".[10]
In the immediate aftermath of the judgment, there were many reports of existing patients at GIDS having their treatment abruptly cut off,[13] and that even care for patients over the age of 16 was being affected.[14]Stonewall, Mermaids, and Gendered Intelligence conducted an online survey of over 200 parents whose children were being seen at Tavistock, on the waiting list, or considering a referall to gauge their responses to the ruling. They found that it negatively impacted mental health and education experiences. More than two thirds of respondents said they were likely to pursue other less secure pathways to treatment.[15][16][17]
The World Professional Association for Transgender Health and European, Asian, Australian, Aotorean, United States, and Canadian Professional Associations for Transgender Health released a statement in response to the ruling that "We are gravely concerned that the ruling will have a significantly adverse impact upon gender diverse youth and their families by imposing barriers to care that are costly, needlessly intimidating, and inherently discriminatory" and recommended "that capacity to consent is evaluated on a case-by-case basis by the treating clinician and not by a court of law."[18]
Sandra Duffy, writing in Irish Legal News said "Through the declaration and guidance issued in the [High Court] judgment, it set a near-impossibly high standard for competence to consent, including a requirement to understand the effects of cross-sex hormones – a treatment which is only prescribed to adults."[19]
The original decision was overturned by the Court of Appeal and the guidance on puberty blockers was quashed. The Court of Appeal ruled that the High Court should not have issued guidance on the Gillick test and puberty blockers because that court should have dismissed the case when it ruled that the Tavistock guidance was lawful.[22][23] The Court of Appeal found that it was "for clinicians to exercise their judgement" in relation to puberty blocking treatment.[22]
The Supreme Court of the United Kingdom refused Bell's application for permission to appeal on 28 April 2022, with the reason that it did "not raise an arguable point of law".[24]
Reactions to the appeal
Alistair Robertson, a solicitor who advised the Tavistock and Portman NHS Foundation Trust, said going into the appeal "Our strategy had to be to focus the courts on the specific legal issues raised and away from the moral controversy around the treatment of children for gender dysphoria."[11]
Following the appeal Helen Marshall, Chief Executive of Brook, one of the appellants against the original ruling, expressed delight with the appeal judgment and said "By confirming that clinicians are able to use their professional judgement to evaluate an individual young person's capacity to consent to the use of puberty blockers, today's judgment crucially upholds the principle of Gillick competence which underpins practice across health, social care and many other areas of work with young people."[25]
Describing the appeal judgment, Sandra Duffy of Irish Legal News said "The Court of Appeal disagreed profoundly with the findings of the Divisional [High] Court on both evidentiary and legal bases. Its decision to overturn found that the Divisional Court had relied on flawed expert evidence (Bell 2, 38), 'implied factual findings that the Divisional Court was not equipped to make' (65), and was incorrect in issuing both its declaration of law and its guidance on the application (84 and 89)" and highlighted the importance of "the Court of Appeal's finding that Gillick competence applies to puberty blockers in the same way that it would to any other medical decision."[19]
Marina WheelerQC, reacting to the appeal, said "In essence, the Court of Appeal found that the judges below [in the High Court] had stepped into the shoes of clinicians: it is 'for doctors to decide on competence not judges'" adding "As figures before the Court show, treatment for gender dysphoria among children is increasing: in 2009 there were 97 referrals to the Tavistock clinic; in 2019 there were 2,519. Given these figures, Ms Bell is unlikely to be the only young person who has changed their mind about treatment. If this is right, a clinical negligence claim is just a matter of time. Unlike proceedings for judicial review, that will provide a forum where the court is required to make factual findings, form judgments about clinical practice, and resolve disputes between experts. On that occasion, the judges will have to decide."[26]
In July 2022, the NHS decided to close GIDS (the Tavistock Clinic) and replace it with regional healthcare centres in 2023, following the release of an interim version of the Cass Review, a report conducted by paediatrician Hilary Cass.[27]
AB v CD and others
AB v CD and others is a separate case involving the Tavistock & Portman NHS Foundation Trust, on the related matter of whether parents can give legal consent to their child receiving puberty blockers. In a judgment issued on 26 March 2021, the High Court ruled that parents are able to give such consent "save where the parents are seeking to override the decision of the child" [para 114 of the judgment]. The case does not overrule, nor have any legal effect on, the judgment in Bell v Tavistock; the ruling reads [para 9] "Nothing that is said below is intended to depart, to even the smallest extent, from anything that was said in Bell."[28][29]
Gender dysphoria (GD) is the distress a person experiences due to a mismatch between their gender identity—their personal sense of their own gender—and their sex assigned at birth. The term replaced the previous diagnostic label of gender identity disorder (GID) in 2013 with the release of the diagnostic manual DSM-5. The condition was renamed to remove the stigma associated with the term disorder. The International Classification of Diseases uses the term gender incongruence instead of gender dysphoria, defined as a marked and persistent mismatch between gender identity and assigned gender, regardless of distress or impairment.
The Tavistock and Portman NHS Foundation Trust is a specialist mental health trust based in north London. The Trust specialises in talking therapies. The education and training department caters for 2,000 students a year from the United Kingdom and abroad. The Trust is based at the Tavistock Centre in Swiss Cottage. The founding organisation was the Tavistock Institute of Medical Psychology founded in 1920 by Hugh Crichton-Miller.
Gillick competence is a term originating in England and Wales and is used in medical law to decide whether a child is able to consent to their own medical treatment, without the need for parental permission or knowledge.
The rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the United Kingdom have developed significantly over time. Today, lesbian, gay and bisexual rights are considered to be advanced by international standards, while transgender, gender-nonconforming and non-binary rights face some of the highest levels of discrimination of any modernised country.
Victoria D. M. Gillick is a British activist and campaigner best known for the eponymous 1985 UK House of Lords ruling that considered whether contraception could be prescribed to under-16s without parental consent or knowledge. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.
In law, intervention is a procedure to allow a nonparty, called intervenor to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard.
Transgender youth are children or adolescents who do not identify with the sex they were assigned at birth. Because transgender youth are usually dependent on their parents for care, shelter, financial support, and other needs, they face different challenges compared to adults. According to the World Professional Association for Transgender Health, the American Psychological Association, and the American Academy of Pediatrics, appropriate care for transgender youth may include supportive mental health care, social transition, and/or puberty blockers, which delay puberty and the development of secondary sex characteristics to allow children more time to explore their gender identity.
Puberty blockers are medicines used to postpone puberty in children. The most commonly used puberty blockers are gonadotropin-releasing hormone (GnRH) agonists, which suppress the natural production of sex hormones, such as androgens and estrogens. Puberty blockers are used to delay puberty in children with precocious puberty. Since the 1990s, they are also used to delay the development of unwanted secondary sex characteristics in transgender children, so as to allow transgender youth more time to explore their gender identity under what became known as the "Dutch Protocol". They have been shown to reduce depression and suicidality in transgender and nonbinary youth. The same drugs are also used in fertility medicine and to treat some hormone-sensitive cancers in adults.
Sir Geoffrey Charles Vos is a judge in England and Wales. Since January 2021, he has held the positions of Master of the Rolls and the Head of Civil Justice in England and Wales.
Transgender health care includes the prevention, diagnosis and treatment of physical and mental health conditions for transgender individuals. A major component of transgender health care is gender-affirming care, the medical aspect of gender transition. Questions implicated in transgender health care include gender variance, sex reassignment therapy, health risks, and access to healthcare for trans people in different countries around the world. Gender affirming health care can include psychological, medical, physical, and social behavioral care. The purpose of gender affirming care is to help a transgender individual conform to their desired gender identity.
Transgender rights in Australia have legal protection under federal and state/territory laws, but the requirements for gender recognition vary depending on the jurisdiction. For example, birth certificates, recognised details certificates, and driver licences are regulated by the states and territories, while Medicare and passports are matters for the Commonwealth.
Transgender rights in the United Kingdom have varied significantly over time.
Mermaids is a British charity and advocacy organisation that supports gender variant and transgender youth. It also provides inclusion and diversity training. Mermaids was founded in 1995 by a group of parents of gender nonconforming children and became a charitable incorporated organisation in 2015.
The Gender Identity Development Service (GIDS) was a nationally operated health clinic in the United Kingdom that specialised in working with transgender and gender diverse youth, including those with gender dysphoria. Launched in 1989, GIDS was commissioned by NHS England and took referrals from across the UK, although it was operated at a Tavistock and Portman NHS Foundation Trust site. GIDS was the only gender identity clinic for people under 18 in England and Wales and was the subject of much controversy.
Dame Nathalie Marie Daniella Lieven,, , known as Mrs Justice Lieven, is a Justice of the High Court of England and Wales assigned to the Family Division.
Time to Think: The Inside Story of the Collapse of the Tavistock's Gender Service for Children is a 2023 nonfiction book by BBC Newsnight investigative journalist Hannah Barnes. The book is about the NHS Gender Identity Development Service (GIDS) based at the Tavistock and Portman NHS Foundation Trust. Barnes said, "I wanted to write a definitive record of what happened [at GIDS] because there needs to be one."
GenderGP is an online gender clinic founded in 2015 by English physicians Helen Webberley and Mike Webberley. It is based in Singapore but provides services worldwide. It has been the subject of controversy within the United Kingdom as a result of regulatory actions taken against its founders.
The Independent Review of Gender Identity Services for Children and Young People was commissioned in 2020 by NHS England and NHS Improvement and led by Hilary Cass, a retired consultant paediatrician and the former president of the Royal College of Paediatrics and Child Health. It dealt with gender services for children and young people, including those with gender dysphoria and those identifying as transgender in England.
Beginning in 2018, Texas parents Jeff Younger and Anne Georgulas fought over custody of their twin children, born in 2012. The case attracted national attention, as one of their children is a transgender girl diagnosed with gender dysphoria at age five. Georgulas affirms her identity and allowed her to socially transition, while Younger denies that she is transgender.
The Bayswater Support Group (BSG) is a support group for parents skeptical of their children's transgender identity founded in 2019. It has supported proposed educational policies which would ban social transition for transgender children and require that schools out them to their parents. It additionally lobbied the Crown Prosecution Services to remove protections for transgender youth.
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