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Case update 21 December 2021

Update: We’ve filed for judicial review in our trans healthcare case

Back in October, we told you we were preparing to issue proceedings against NHS England over its long-standing, lengthy and unlawful delays to meeting trans people’s healthcare needs. 

Less than two months later, we are now filing our claim for Judicial Review. In that time, the shape of the case has changed slightly, so we wanted to tell you what’s new. 

We’re bringing this claim against the NHS alongside two adult claimants, two child claimants and trans-led grassroots charity Gendered Intelligence. The claim now focuses on six key problems with NHS trans healthcare provision. We argue: 

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  1. NHS England has failed, under regulation 45(3) of the 2012 Regulations, to ensure that 92 per cent of trans patients who are referred for medical treatment begin that treatment within 18 weeks of referral.
  2. NHS England has failed, under section 3B of the National Health Service Act 2006, to provide services for children needing puberty blockers that they can access before starting puberty.
  3. NHS England have failed, under the NHS Constitution, to uphold the rights of adult patients with gender dysphoria to begin treatment within 18 weeks of referral.
  4. NHS England has unlawfully discriminated against trans people because waiting times for gender identity services are longer than for the vast majority of other healthcare services.
  5. NHS England’s decision to introduce and maintain a ‘Multi-Professional Review Group’ as part of puberty-delaying treatment for trans children is unlawfully directly or indirectly discriminatory. We also think the Service Specification unlawfully requires both the child and their parents to consent to treatment, contrary to the principles established in Gillick and AB v CD. 
  6. NHS England has failed to comply with its public sector equality duty to ensure trans people can access acute services by setting up the Multi-Professional Review Group for trans children and in the arrangements it makes with providers.  

Eva Echo, one of the adult claimants in this case, explains the impact of waiting so long for treatment. “I would describe being on the waiting list as torture, and there were times when I felt that I may not even be alive long enough to receive my first appointment. Being on the waiting list was no comfort; I desperately needed help. 

“My mental health was worse than it had ever been; coming out had allowed me to recognise my gender dysphoria, but I was left completely alone to manage it. I felt, and still feel, completely let down by the system that I thought was there to save me.”

For too long, the NHS has failed to prioritise trans healthcare. We, alongside many affected individuals, medical professionals, families and campaigners for trans rights, believe the current system is not fit for purpose. The available services simply aren’t meeting the needs of the people they should be helping. Too many trans people have died waiting for the treatment they were entitled to. Many more suffer in ways that are entirely preventable. The bottom line is that trans people have a right to access essential care, just like everyone else. 

Since this blog was published, we have withdrawn Ground 5 and part of Ground 6 in light of the Defendant’s decision to withdraw the GIDS Service Specification and replace it with a new Interim Service Specification from Spring 2023. We are currently seeking separate legal advice on this matter.

You can read witness evidence from Gendered Intelligence, Eva Echo, Alex Harvey and Jo Maugham. Read our main grounds here

You can also read the expert witness statement from academic specialist Dr Michael Toze, which provides important background to the case.

If you are in a position to support the fight for trans healthcare rights, you can donate here.