Bell v Tavistock: the Medico-Legal Consequences

by Sandra Duffy, Law School, University of Bristol

By tedeytan

On December 1st, the High Court handed down its decision in the case of Bell and A v Tavistock and Portman NHS Trust. This ruling concerned a judicial review of the practice of the Tavistock Gender Identity Development Service in prescribing puberty-blocking hormonal treatments to children under 16 years of age. 

 

Puberty blockers are given to transgender children with a diagnosis of gender dysphoria. They are used to spare these children from going through the puberty associated with their assigned sex and to give them time to reflect on their gender identity without the pressures associated with puberty. Puberty blockers have an inverse correlation rate with suicidal ideation in transgender persons and can sometimes be a life-saving treatment for these children. Most young persons who take puberty-blocking treatments will go on to take adult hormonal interventions (CSH) also (approx 98%, per Bell). However, this is neither automatic nor inevitable. Puberty blockers are fully reversible as they pertain to pubertal developments and the individual is given the choice at 16 as to whether they wish to continue on to adult medical services.  

 

The standard used to assess competence to receive medical treatment in children under 16 is known as Gillick competence. Children are considered competent to give consent to treatment without their parents’ consent if they have “sufficient understanding and intelligence” to understand the “nature and implications of the proposed treatment.” (Bell, 105) 

 

The interested party in this case is Keira Quincy Bell, who identified as a trans boy as a teenager and young adult, but now identifies as a woman. She does not believe that she was fully competent to make transition-related decisions as a minor, alleging that she could not understand the consequences of those decisions, nor that they would entrain the later decisions she made as an adult (such as a mastectomy).  

 

The High Court’s conclusion in this decision is 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]… 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.” (Bell, 145) Within the list of “long-term… consequences” the Court believes it is necessary to understand are the effects of CSH on sexual function and fertility. CSH are voluntary treatments undertaken after the age of 16, in a separate decision to that which is involved in consenting to puberty blockers. The Court here uses the high correlation rate between puberty blockers and CSH as destiny, conflating the two decisions into one – which is not the case in reality. 

 

In making the above-quoted statement, the Court refines Gillick competence as it relates to trans children as a class. As Ruth Fletcher has pointed out, this is antithetical to the usual way in which capacity decisions are made – on a decision- and person-specific basis. It also singles out trans children and applies stricter standards on them than on other children when consenting to healthcare. Asking trans children to understand the consequences for sexual and other health matters of taking CSH (Bell, 138) – which is a treatment they will not encounter until later in their teenage/early adult years – involves a leap of the imagination which will render this standard difficult to meet. 

 

Puberty blockers are characterised as an experimental treatment with unknown consequences in the decision. This impacts strongly on the Court’s holding that it would not be possible for young teenagers to understand the consequences of their decision to take them. However, this has been denied in the medical literature.  

 

This decision is highly cisnormative. It positions cisgender (non-transgender) identity as normal and transition as a dangerous process to be avoided if possible. It is also heavily pathologised. There is no rights-based, affirming language used about trans youth. Trans identity itself is only referred to in terms of the psychological disorder ‘gender dysphoria,’ which people are said to “suffer from.” This adds to the othering of transgender persons and removes the perspective of the individuals concerned from the decision itself 

 

Lastly, the decision is likely to have an influence on other aspects of minors’ healthcare. Particularly troubling are the implications for reproductive healthcare decisions such as abortion which may also be said to have “lifelong consequences.” The tightening of Gillick competence in Bell is a worrying precedent for those seeking to protect minors’ reproductive autonomy.  

 

The opinions expressed in this piece are solely those of the author, unless otherwise attributed. 

 

The Human Rights Implementation Centre, along with the Centre for Health, Law and Society, are pleased to announce our seminar on the medico-legal consequences of the Bell v Tavistock judgment, which will be held on March 3rd at 1.15pm. Speakers include Robin White (Old Square Chambers), Professor Simona Giordano (University of Manchester), Dr Bianca Jackson (Coram Chambers), Dr Jay Stewart (Gendered Intelligence), and Dr Ruth Fletcher (QMUL). Please see further details at this Eventbrite link

Who’s the Mummy (or Daddy… or Parent)? Trans parents: law, identity and birth registration in England and Wales

Liam Davis is a law PhD student at the University of Bristol. He tweets as @LiamJamesDavis.

With diverse formally formations increasing, it is arguable that the birth registration system is not fit for purpose because it is tethered to ‘traditional’ understandings of family life and cannot adequately account for ‘modern’ families. This post considers mismatches between law and identity within birth registration for trans parents.

This post is inspired by my article, “Deconstructing tradition: Trans reproduction and the need to reform birth registration in England and Wales”, published in the International Journal of Transgender Health. A limited amount of free copies are available direct from the publisher, here. Otherwise, you can request an Open Access copy through my university profile/emailing me, or by tweeting me.

Background

You would be forgiven for thinking that the term “male mother” is  an oxymoron, but this is the conclusion the Court of Appeal reached in R (McConnell) v The Registrar General for England and Wales [2020] EWCA Civ 559 regarding a trans man, Freddy McConnell, who gave birth and wanted to be registered as his child’s father (or parent) on the birth certificate. (more…)

Sex, Gender and the Trans Debate

By Prof Joanne Conaghan (University of Bristol Law School)

The recent debate on gender recognition reform, as played out in the press and on social media, has been painful to behold. With passions running high, much of the discourse has been marked by a lack of regard for the viewpoints of others, on occasion spiralling into professional and even personal abuse online. That the pursuit of equality should unleash such unkind sensibilities is troubling, particularly in a feminist context in which values such as inclusion, empathy, and respect for different standpoints have generally commanded wide respect.

What lies behind the apparent deadlock in debate between transgender activists and ‘gender critical’ feminists? On the one hand, there is the perfectly proper concern of trans people to have access to a legal process of gender recognition which they do not experience as invasive, cumbersome, and pathologizing. On the other, there are misgivings expressed by some in the feminist community that a legal regime of gender recognition, understood as ‘self-declaration’ and operating in various forms in Argentina, Belgium, Brazil, Chile, Columbia, Denmark, Ireland, Malta and Norway, will weaken the hard-won gains of decades of feminist activism particularly with regard to securing women’s access to safe sex-segregated spaces such as rape crisis centres and women’s refuges. The fact that existing equality legislation already provides a level of protection allowing same-sex service providers to deny access to transgender individuals where they can show this is a proportionate means of achieving a legitimate aim (for example, a counselling service might reasonably be concerned that sexually abused women will be less likely to attend group counselling if  ‘male-bodied’ trans women are also in attendance)[1] does not seem to have allayed these concerns, though surely they should, particularly as the Government has made clear that they have no plans to change equality law. (more…)

Transgender and Intersex Rights in the EU and EFTA

By Dr Peter Dunne, Lecturer in Law (University of Bristol Law School) and Dr Marjolein van den Brink, Assistant Professor (University of Utrecht).

*This blog post reflects the views of the authors alone. The blog has not been approved by, and should not be understood as the opinion of, the European Commission or European Network of Legal Experts in Gender Equality and Non-Discrimination*

On 20 November 2018, to mark the Transgender Day of Remembrance, the European Commission (DG Justice and Consumers) published a new survey on transgender (trans) and intersex equality rights. The report – entitled Trans and intersex equality rights in Europe – a comparative analysis (‘the Report’) – was co-authored by Peter Dunne (Bristol Law School) and Marjolein van den Brink (University of Utrecht). It considers the existence (or lack thereof) of gender recognition and non-discrimination guarantees for trans and intersex populations in 28 European Union and three European Free Trade Association countries (EFTA).

At a moment when gender rights are the subject of intense political and media debate in the United Kingdom, the Report is a timely reminder of the real, substantive inequalities which transgender and intersex communities experience on a daily basis. While the Report evidences some welcome progress in the spheres of gender identity, gender expression and sex characteristics, it reinforces existing research (e.g. here, here) showing that – both de jure and de facto – trans and intersex individuals experience less secure protection than cisgender peers and persons who do not experience intersex variance. (more…)

Transgender Rights in the United Kingdom and Ireland: Reviewing Gender Recognition Rules

By Mr Peter Dunne, Lecturer in Law (University of Bristol Law School).

In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model. (more…)