A ruling stopping children under 16 access puberty blocker drugs has been overturned in the Court of Appeal
The NHS arm providing transgender care, the Tavistock and Portman NHS Trust, has won an appeal to provide the treatment to patients questioning their gender identity.
The Lord Chief Justice Lord Burnett, sitting with Sir Geoffrey Vos and Lady Justice King, overturned a High Court ruling from December 2020 that prohibited people under the age of 16 accessing the hormone-blocking treatment, which argued that young people can only consent to the use of hormone-blocking treatments if they can understand the “immediate and long-term consequences”.
The High Court ruled at the time it was “highly unlikely” that a child aged 13 or under would be able to consent to the treatment, and that it was “doubtful” that a child of 14 or 15 would understand the consequences.
Hormone-blocking treatment is used by specialists to “put a pause on puberty” while young people think about transitioning, but it is controversial.
The Appeal Court judges made clear that doctors retained the right to exercise their clinical judgement on whether a patient needed the puberty blockers. However, they cautioned that care needed to be taken in making assessments and seeking consent.
“Great care is needed to ensure that the necessary consents are properly obtained,” they said in the judgment. “Clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.”
A Tavistock and Portman spokesperson said of the successful appeal: “The judgment upholds established legal principles which respect the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures.
“It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.”
The woman who brought the original case, Keira Bell, said she was “surprised and disappointed” by the decision, adding she had no regrets.
Ms Bell, 24, who “detransitioned” after being put on the blockers at 16, said she believed the medical service had become “politicised” and will be seeking permission to appeal to the Supreme Court.
She said: “I am obviously disappointed with the ruling of the court today and especially that it did not grapple with the significant risk of harm that children are exposed to by being given powerful experimental drugs.
“I am surprised and disappointed that the court was not concerned that children as young as 10 have been put on a pathway to sterilisation.
“It has shone a light into the dark corners of a medical scandal that is harming children and harmed me.”
Nevertheless, campaign groups who had supported the Tavistock in making the appeal were delighted with the ruling.
Nancy Kelley, CEO of Stonewall told i: “Today’s outcome will be a huge relief for trans young people and their families, as well as the wider trans community.
‘This deeply unsettling case has caused many trans young people and their families enormous distress by adding to waiting lists that were already out of control and leaving young people in limbo without vital healthcare support. Now the NHS must publish updated guidance for young people relying on these services with as much urgency as they suspended treatment access after the previous ruling.
“This judgement must be a turning point for NHS and the Government in addressing trans people’s healthcare.”
A spokesperson for gender-diverse youth charity Mermaids called it “a victory for common sense.”
Susie Green, Mermaids CEO, said: “We welcome this decision and are pleased that the Court of Appeal has overturned what was a devastating decision that has empowered transphobia in the UK and continues to impact the lives of hundreds of young people.
“Within hours of the initial ruling in December 2020, we saw NHS England change their service specification. Will they do the same now?
“We need to see definitive and decisive action by the Tavistock and NHS England to address the needs of those young people and their families all over the UK who are in a state of anxiety and distress. We need immediate action to provide urgent access to treatment for all those trans young people who suddenly found treatment options withdrawn without support.”
Following the original High Court ruling the Good Law Project lodged a successful appeal in March, allowing young people under 16 to receive puberty blockers if their parents consented to treatment.
The social justice legal group, alongside eight other charities, backed the movement to overturn the High Court’s decision, arguing that trans youths are desperate need of puberty blockers to “reduce distress.”
While the March ruling meant some patients could commence treatment, clinicians from the Gender Identity Development Service (GIDS) said it was “effectively paused” as the NHS needed to create a new assessment framework to approve young people for treatment.
Additional reporting by Press Association