In the UK High Court a legal case against the Tavistock Clinic’s Gender Identity Development Service (GIDS) has been won by Keira Bell. Bell is a 23 year old woman who was treated with puberty blockers and testosterone followed by a mastectomy, and lived as a male for several years before she realised that “transition was a temporary fix, if that”. The treatment, which started when she was 16, happened because she never received adequate counselling to address the root causes of her gender discomfort. As a young teenager who didn’t conform to stereotyped gender expectations she felt “wrong”.
The NHS had already changed its advice that puberty blockers are safe and fully reversible to wording that indicates that the long term impacts are unknown. The land mark ruling released on 1 December has seen the NHS immediately suspend the use of puberty blockers in new patients and it assesses puberty blockers and cross-sex hormones in children as experimental treatments that cannot be given to children in most cases without application to the court. The judgment showed that Bell was not able to consent to treatment because she could not understand its long term impacts.
The judgment also showed that the Tavistock Clinic did not collect and analyse the data about patient prognosis following puberty blockers. While they are described as providing thinking time for gender confused children other research has shown that upwards of 95%, if not all children prescribed puberty blockers continue to further treatment including cross sex hormones with many later choosing surgery such as mastectomy, hysterectomy and even phalloplasty (the creation of an artificial penis in girls) with corresponding treatment pathways for boys. In contrast, an analysis of the available research shows that without medical treatment between 60% and 100% of gender confused children depending on the study, would mature out of their earlier beliefs and come to a satisfactory accommodation with their bodies.
It is anticipated that the ramifications of this case will lead to a more cautious approach to gender medicine for children and young people across the world including in NZ where judgment is directly relevant – NZ’s treatment regime is significantly more liberal and its delivery more devolved than in the UK. In contrast with the UK there is no diagnosis required by NZ’s gender health medicine guidelines that cover children and young people. The NZ guidelines advise clinicians to follow the young persons self-assessment in a process called gender affirming healthcare which is defined as ”healthcare that is respectful and affirming of a person’s unique sense of gender and provides support to identify and facilitate gender healthcare goals.” Unlike the UK New Zealand’s Ministry of Health still maintains that puberty blockers are ‘safe and fully reversible’ despite a NZ campaign that is calling for the advice to be reviewed based on the evidence now available.
The judgment referenced Gillick Competence, a protocol that is used internationally. It was used by GIDS to make the case that the children were fully informed about the treatment and therefore able to give consent. However the court found that the scale and permanence of changes to a young person’s life, including the high likelihood that puberty blockers will lead to further treatment and irreversible changes such as loss of sexual function and fertility, meant that children and young people were unable to give informed consent.
Another factor that the court argued precluded informed consent is that puberty blockers are an experimental treatment with unknown long term health impacts. This was clarified in research by New Zealander Michael Biggs, Associate Professor of Sociology at Oxford University. He discovered that the GIDS clinic started the work as an experiment which had simply continued to become normal practice without ever reporting full results. He analysed unpublished data from GIDS clinic that demonstrated the negative mental health impacts of treatments offered by the Tavistock. Biggs’ research was amongst the evidence presented at the trial.
Keira Bell said in an interview “There was nothing wrong with my body, I was just lost and without proper support. Transition gave me the facility to hide from myself even more than before.” The same issues of whether Gillick competence was meant to cover experimental medicine with lifelong impacts apply here. The question of whether New Zealand clinicians are providing informed consent cannot be ignored. How many Keira Bells are there in New Zealand and how many will there be if the current regime continues?
Jan Rivers, Public Good
Jan is an independent researcher and co-author of Another unfortunate experiment? New Zealand’s transgender health policy and its impact on children.
The information below contains extracts from media coverage following the judgment, a link to the judgment itself, and to the NZ guidelines
Keira Bell was interviewed by Raquel Rosario Sánchez for the for Spanish feminist platform Tribuna Feminista
RRS: Looking back now, how do you reflect on those years of your life?
KB: I look back with a lot of sadness. There was nothing wrong with my body, I was just lost and without proper support. Transition gave me the facility to hide from myself even more than before. It was a temporary fix, if that.
RRS: How can society address gender dysphoria in children and teenagers, without resorting to experimental, and oftentimes unnecessary, medical practices?
KB: It has to start with how we look at gender non-conformity, and non-conformity in general. Almost every girl (if not all) that wants to or has transitioned has felt like they are wrong because they do not conform to something that this society deems as important or necessary.
Gender nonconformity needs to be accepted. Role models are really important. Young lesbians or bisexual women, especially those of us who are black or brown, don’t have many role models. We need better mental health support, and I think that speaks for most countries. Mental health support is a great preventative measure.
What does the Keira Bell case tell us? Suzanne Moore
The former Guardian journalist Suzanne Moore writes ‘we must ask what is causing this misery for girls and why suicide rates are rising. Why are female bodies such an uncomfortable place to be?”
“That question needs to be thrown back to society and not always located in the psyche of the individual. This is why I find parts of trans activist discourse so totally conservative. There is no analysis of how gender operates, of how bodies and definitions do not exist in isolation, how the notion of a true self may itself be false.”
NHS gender clinic ‘should have challenged me more’ over transition
By Alison Holt Social Affairs Correspondent, BBC News 01 March 2020
Puberty blockers: Under-16s 'unlikely to be able to give informed consent'
Keira Bell: The High Court hands down a historic judgment to protect vulnerable children: Transgender Trend
The judgment concluded that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with puberty blockers and very doubtful that children aged 14 and 15 could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.
The court also ruled that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term interests of a 16 or 17 year-old would be served by the clinical interventions of blockers and hormones.
The judgment today is a watershed moment. As a society we must ask ourselves how we allowed this to happen. The threats, bullying and the silencing of alternative views must stop here.
Today the right judgment has been handed down in the High Court. But we should never have had to learn about the dangers of institutional capture in this way.
The Observer view on the high court's ruling on puberty-blocking drugs for children
And the judgment casts doubt on the gender-affirming model of treatment for children who present with gender dysphoria. The idea that a child as young as 10 can come to a fixed view about their gender identity that sets them on a path to irreversible medical treatment is alarming, yet has become embedded in clinical practice.
Any questioning of the gender-affirming model – and the role that trauma, internalised hostility to same-sex attraction or misleading online material may play in gender dysphoria in teenagers – is dismissed as transphobic. This is a chilling state of affairs that is detrimental to child safety.
The slow motion scandal: Graham Linehan
Graham Linehan quotes from a thread by the Evidence-Based Social Work Association twitter thread following the announcement of the decision.
“We were told that the defendant did
not have any data recording the proportion of those on
puberty blockers who progress to cross-sex
In other words, Tavistock did not collate data on one of their key medical interventions!
finally part of the conclusion.
“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.
Puberty blockers: under-16s ‘unlikely to be able to give informed consent’
The Guardian article outlines the critera that lead to a diagnosis of gender dysphoria and 5 of the 8 are clearly linked to gender stereotypes.
An NHS spokesperson welcomed the “clarity” the decision had brought, adding: “The Tavistock have immediately suspended new referrals for puberty blockers and cross-sex hormones for the under 16s, which in future will only be permitted where a court specifically authorises it. Dr Hilary Cass is conducting a wider review on the future of gender identity services.”
The judges said there would be enormous difficulties for young children weighing up this information and deciding whether to consent to the use of puberty blocking medication.
Gender dysphoria involves children demonstrating at least six of a series of behavioural traits as well as an “associated significant distress or impairment in function, lasting at least six months”
• A strong desire to be of the other gender or an insistence that one is the other gender.
• A strong preference for wearing clothes typical of the other gender.
• A strong preference for cross-gender roles in make-believe play or fantasy play.
• A strong preference for toys, games or activities stereotypically used or engaged in by the other gender.
• A strong preference for playmates of the other gender.
• A strong rejection of toys, games and activities typical of one’s assigned gender.
• A strong dislike of one’s sexual anatomy.
• A strong desire for the physical sex characteristics that match one’s experienced gender.
Guidelines for gender affirming healthcare for gender diverse and transgender children, young people and adults in Aotearoa New Zealand
Supporting trans and gender diverse children requires a developmentally appropriate and gender affirming approach which involves assisting children to create an environment where their gender can be affirmed.
Gender Affirmative Healthcare definition: ”healthcare that is respectful and affirming of a person’s unique sense of gender and provides support to identify and facilitate gender healthcare goals.”
Transgender medicalization and the attempt to evade psychological distress Robert Withers
The decision to transition is theorised convincingly as one that is being taken by children and young people, (as well as their therapists and wider society) to avoid psychological distress but which is rationalised as ‘being born in the wrong body’. For example the practice may be considered as conversion therapy for young gay and lesbian people when a therapist simply affirms transidentification without trying to understand its origins in same sex attraction.
The full court judgment
The judgement runs to 38 pages. Amongst the material supplied by GIDS in support of their treatment regime was testimony from their successful patients. J is one.
J is a 20 year old transgender man who received PBs in 2012 at the age of 12 followed by CSH in 2015. He described how he felt a strong need to become a boy from an early age and how he was bullied at school for his behaviour. He found the onset of female puberty horrifying and unbearable. After a number of sessions at GIDS he was prescribed PBs from the age of 12. According to J he was given the fullest possible information from the clinicians at GIDS as to the benefits and disbenefits of the treatment. The clinicians strongly challenged his desire to transition and why he had chosen to express his gender identity as male. He was advised as to the impact on fertility if he chose to go on to CSH and surgery. He said: “I made the decision to proceed with pubertal suppression without pursuing egg preservation. It was a difficult decision to make because I did not know whether I would want biological children in adulthood, but I was certain I would never want to carry a child and give birth. Ultimately, I made the decision because I had a poor quality of life and without immediate treatment I did not feel I had a future at all.” He says: “We discussed sex and I told them the idea of it disgusted me. I knew I would be unable to consider having a sexual relationship as an adult with my body so wrongly formed.” (emphasis added)
Comment: A case study presented as a success story by GIDS is a 12 year old girl, bullied in all probability because of her atypical in interests and preferences. She is barely through a puberty which she found disturbing. She feels highly judgmental of and negative about her body. She cannot bear the prospect of sex, or the thought of pregnancy and childbirth. Has childhood changed so much that clinicians would see such a presentation as markedly different to the average 12 year old girl – except for J’s belief the solution to all this lay in becoming a boy?