Children under 16 who want to undergo gender reassignment must now convince a judge they understand the “immediate and long-term consequences” of the process before taking puberty blockers, a landmark ruling said today.
The High Court has decided a child must be able to “understand, retain, and weigh” the factors involved in the process, including the implications of surgery and loss of fertility which may follow in the future.
Three top judges said the courts must weigh up whether the child can go ahead with the treatment, but said it is “very doubtful” 14 and 15-year olds will now be able to give consent and “highly unlikely” 13-year-olds could satisfy the test.
The ruling comes after a legal challenge by Keira Bell, a 23-year-old woman who began taking puberty blockers when she was 16 before “detransitioning”, and the mother of a 16-year-old autistic girl who is currently on the waiting list for treatment.
Ms Bell told the court she made a “brash decision as a teenager” while seeking happiness and trying to address a “very complex identity issue”, and taking puberty blockers has meant “the rest of my life will be negatively affected”.
A hearing in October was told children going through puberty are “not capable of properly understanding the nature and effects of hormone blockers”, before likely going on to take cross-sex hormones and have surgery which causes “irreversible changes”.
Fighting the case was the Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service for children, arguing against a “radical proposition” it said would effectively ban children from consenting to medical treatment.
Delivering the ruling this morning, Dame Victoria Sharp – sitting with Lord Justice Lewis and Mrs Justice Lieven - said the courts need to be involved to determine if children under 16 understand “the immediate and long-term consequences of the treatment” when consenting to the use of puberty blockers.
“It is the role of the court to protect children, and particularly a vulnerable child’s best interests”, they said.
“The decisions in respect of puberty blockers have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway.
“In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take puberty blockers.”
Children must appreciate “the immediate consequences of the treatment in physical and psychological terms”, said the judges, including understanding “the relationship between taking cross-sex hormones and subsequent surgery, with the implications of such surgery, the fact that cross-sex hormones may well lead to a loss of fertility (and) the impact of cross-sex hormones on sexual function”.
Dame Victoria said children must also know “the impact that taking this step on this treatment pathway may have on future and life-long relationships, the unknown physical consequences of taking puberty blocking drugs and the fact that the evidence base for this treatment is as yet highly uncertain”.
The judges accepted that puberty blockers and cross-sex hormones were part of the same “clinical pathway”, adding: “Once on that pathway it is extremely rare for a child to get off it”.
And the court concluded: “It is highly unlikely that a child aged 13 or under would ever be competent to give consent to being treated with puberty blockers.
“In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.”
The ruling is a landmark moment in the trans debate, and may also see more cases involving 17 and 18-year-olds who wish to transition coming in front of the courts.