Transgender teens aged 16-plus are able to consent to taking puberty blocking drugs, the UK High Court has ruled.
However the judges also 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.
The ruling will disappoint anti-trans campaigners who wanted to stop doctors prescribing puberty blockers for under 18s.
However, it has also disappointed trans campaigners. Trans youth charity Mermaids says the ruling is a ‘potentially devastating blow to trans under-16s’. The organization called it a ‘betrayal of trans young people’.
Moreover, the judges’ stance could be influential far beyond the UK – even in cases in the US about trans teens’ rights.
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.
Trust wants to appeal
The High Court in London heard the evidence on 7 and 8 October but has just ruled.
The case was heard by Dame Victoria Sharp, president of the Queen’s Bench Division, Lord Justice Lewis and Mrs Justice Lieven.
The court said that trans kids aged 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 the blockers had ‘unknown physical consequences’ and could affect ‘future and life-long relationships’.
The court said: ‘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.’
However, it concluded that wasn’t the case for younger children.
The judgement said: ‘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.’
Moreover, it suggested doctors may decide to seek the ‘authorisation of the court’ before treatment.
In response, the Tavistock and Portman NHS Foundation Trust said it was ‘disappointed’ by the judgement.
And a spokesperson warned ‘the outcome is likely to cause anxiety for patients and their families’.
It is already seeking permission to appeal.