If a child cannot consent to taking puberty blockers their loving parent can consent in their stead. That is the outcome of the decision of the High Court, earlier this morning, in the case of AB v Tavistock and Portman NHS Foundation Trust (full decision below), the first case funded by Good Law Project’s Trans Defence Fund.
The effect of the decision in the Bell case earlier this year, when read together with the practice hitherto of the Tavistock to treat on the basis of a child’s consent only, was that even when a specialist doctor wanted to prescribe puberty blockers, a child wanted to receive puberty blockers, and their parents believed puberty blockers were in the best interests of the child, an application would still need to be made to the High Court.
Good Law Project’s lawyers were unable to identify any precedent in English law for this situation. What role is there for a judge – what expertise would they bring or function would they fulfil – in circumstances where the child, parents and doctor all agreed on the right course of therapeutic treatment?
The decision is hugely significant. The barriers to accessing puberty blockers through the Tavistock were already enormous. Very few children were able to overcome them without parental support. The decision means that children with that support will no longer be barred from accessing puberty blockers by the Bell decision. It is not unreasonable to describe this morning’s decision as in large part reversing the practical effects of Bell.
The decision does leave a number of problems unresolved. Trans children without parental support – who are especially vulnerable – will remain disadvantaged. The Bell case poses threats to teenagers wishing to access contraception and abortion care. Bell represents a profound rolling back of the rights of the child. And this morning’s decision, from one of the same judges as sat in the Bell case, perpetuated the highly unorthodox approach to international treatment norms advocated for by the notionally expert witnesses for the Claimant in Bell.
Obviously, we hope some of these difficulties will be ameliorated by the appeal against Bell which begins on 23 June 2021 and in respect of which the Trans Defence Fund has funded an intervention on behalf of the Endocrine Society (the international professional body for those specialising in hormones), Brook (the Charity which works to give young people control of their sexual health, enjoy healthy relationships and and explore their identities) and Gendered Intelligence (a Charity that exists to increase understanding of gender diversity and improve trans people’s quality of life).
Good Law Project will write, later today, to NHS England asking it to reverse the ban it introduced, with ugly and undue haste following the decision in Bell, on new NHS prescriptions of puberty blockers. If it does not, we will initiate further judicial review proceedings against it.
The hostile climate which shamefully predominates in the English media means we are not expecting to do any reactive media but we do expect to appear in several outlets that speak to the trans community in the coming days.
But today, we celebrate some progress, and some recognition, of what has been a painful and often lonely fight for some in the trans community and their families. Solidarity with you all.
Looking forward we plan, if we are able to secure funding, to bring our planned judicial review of NHS waiting times for trans children – and indeed waiting time for trans adults. The time-sensitive nature of a treatment that suspends puberty to give a child time to think about changing their gender means that waiting times of up to four years are effectively a denial of treatment. Wealthy households can and do take their children abroad for wrap-around treatment. Middle-income households fund a, because patchwork, sub-optimal treatment through a combination of foreign prescriptions and domestic delivery. Low-income households often feel compelled to buy puberty blockers from unlicensed suppliers in a manner reminiscent of backstreet abortion clinics.
We also expect to make further announcements shortly regarding litigation against public bodies who are directly discriminating against the trans community. It is easy to forget, amongst the relentless and often dishonest transphobia of our right-wing media, that gender reassignment is a protected characteristic under the Equality Act 2010.
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