The High Court has delayed implementing its new ruling which would make it harder for trans kids to get puberty blocking drugs.
By ‘staying’ its original decision, the court is paving the way for an appeal.
In the ruling on 1 December, the High Court said transgender teens aged 16-plus are able to consent to taking puberty blocking drugs.
But it made it harder for younger trans teens to access puberty blockers. The judges said it is ‘doubtful’ that 14 and 15-year-olds would understand the issues before consenting to using the drugs. And it is ‘highly unlikely’ that children aged under 13 will be competent to give consent.
As a result, the court indicated younger teens and their parents would have to go to court to win permission before doctors can prescribe the blockers.
Now the court has delayed that ruling from taking effect until at least 4pm on 22 December. However, in reality legal experts predict the ‘stay’ will last far longer than that – with the ruling not taking force before judges hear an appeal.
They are predicting the case will go to an appeal which judges are likely to hear in February or March.
The case before the court
The judicial review was brought by Keira Bell and Mrs A, the mother of a trans teen trying to block their treatment.
Bell, now 23, took puberty blockers at 16 before transitioning to male at 17 and having top surgery at 20. However she later destransitioned to female again.
Meanwhile Mrs A wanted to prevent her autistic 16-year-old child taking the puberty blockers.
They brought the review against The Tavistock and Portman NHS Trust. It is the UK’s only National Health Service gender clinic that treats children. It runs the Gender Identity Development Service (GIDS), based in Hampstead, north-west London.
It helps children – mostly teenagers but a few as young as nine or 10 – access the hormone blockers.
The drugs suppress the release of the hormones oestrogen and testosterone. Levels of these rise during puberty, triggering the body to develop breasts, periods, facial hair or a deeper voice.
The blockers slow these from developing. This in turn helps trans teens avoid changes that don’t match their gender identity – helping their mental health. It also gives them time to consider if they wish to transition permanently.
But lawyers for Bell and Mrs A argued that teens should have to go to court before being able to get the treatment.
The High Court in London ruled that trans people aged 16 and over do have the ability to consent to medical treatment.
However it said trans kids under 16 must be able to give ‘valid consent’ to the treatment. This means understanding the long-term impact of the blockers and recognizing that most teens who take them go on to transition.
The court said it is ‘highly unlikely that a child aged 13 or under’ would be competent to give consent. Meanwhile the judges considered it ‘doubtful’ that those aged 14 or 15 could understand the issues enough to consent to treatment.
Therefore it suggested doctors may decide to seek the ‘authorisation of the court’ before treatment.
‘Terrified for their future’
The Tavistock and Portman NHS Foundation Trust responded straight away that it would appeal the judicial review ruling.
And a spokesperson warned ‘the outcome is likely to cause anxiety for patients and their families’.
But despite its intention to appeal, NHS England published amended rules on the same day – 1 December – to reflect the High Court’s decision.
Now Mermaids – a charity that helps trans kids and their parents – has questioned why NHS England acted so hastily.
In a statement, the organization said the court’s ‘stay’ on the ruling means that the NHS England amendment was not needed.
Mermaids said: ‘[It] raises serious questions about why NHS England published its amendment so quickly when it was not required. We are seeing the first hand impact of such haste, which has resulted in many young people and family members terrified for their future.
‘Considering the detail of the order, we have asked NHS England to provide clarification on why they acted with the speed they ddi and ask that they suspend the effect of the amendment in line with the court’s order.’