The flawed reasoning behind the Bell vs Tavistock judgement
By: Matrim Tait
Tags: Legal, Transgender, Gender, UK, Tavistock

On 1st December 2020, the High Court issued its ruling on the case brought against the only gender identity service for children in the UK, the Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust. The ruling was disappointing for the transgender population of the UK; it has been decided that transgender children are unlikely to be able to consent to puberty blockers, and therefore transgender youth will have their access to puberty blocking drugs severely limited. Whereas before this ruling, doctors at the clinic could provide puberty blockers to certain children experiencing gender dysphoria, now they will have to apply for a “best interests” order from the court in order to access them.

The disappointment about the court case is not only due to the result, however. A lot of disappointment comes from how the court made its decision, as it is clear from reading the full document that if better information was available to the judges, the case might have gone differently.

One point on which the court was arguably correct was to criticise the record keeping of the Tavistock clinic. Tavistock was unable to supply statistics on the proportion of their patients given puberty blockers in years before 2019/20; the precise numbers of patients who went on to take cross-sex hormones (CSHs) in later years; and other data. Perhaps it had something to do with lack of funding or staff, as they would clearly have access to all the data in their patient files, but the data was not collated. Perhaps it had something to do with the rules around keeping data on patients who had been referred to adult services. I don’t know, I don’t work for the NHS, but it would be nice to have that data, given that GIDS is one of the largest clinics for trans youth in Europe, and there’s little in the way of statistics on this demographic in general.

It’s clear from their testimony that Tavistock are very methodical in their treatment of trans and gender non-conforming children and young people. In order to be prescribed puberty blockers, the patient has to have shown signs of persistent gender dysphoria (GD), a strong feeling of incongruence with one’s sex and distress resulting from that. They have to have felt this for an extended period of time. Patients undergo a series of appointments assessing the suitability of intervention, with long waits between appointment times. Tavistock was able to provide the data for the 2019/20 cohort of patients, which revealed that 161 children (out of thousands referred to the clinic) were referred to GIDS for puberty blockers, and more than half of those 161 were over 15 years old. Tavistock described its lengthy process of ensuring the patients understood the ramifications of treatment. This debunks the popular myth pushed by critics that hordes of young children are fast-tracked into taking drugs. However, the court case was not about the clinic’s practices; it was about whether children are able to consent to taking puberty blockers.

The general logic of the judgement is this: children are not mature enough to be able to understand the ramifications of taking hormone blockers and subsequent therapies, therefore they might make a decision which has an adverse effect on their health or causes them to regret their choice, therefore they should not be able to make that choice.

So, regret, how common is it?

One of the claimants in this case was Keira Bell, a young woman who regrets her transition to a more masculine body. She chose to take puberty blockers at age 16 and progressed to testosterone at age 17, and then a double mastectomy at age 20. Bell’s regret is unfortunate, but it is important to remember that regret regarding transgender therapies is an extremely rare occurrence. Most studies and surveys put the rate at about 2% or less, much lower than regret over cosmetic surgery or gastric bands. Granted, these studies usually cover adults, but given that strong gender dysphoric feelings in children are a good predictor of persisting gender dysphoria in adulthood, the information is still relevant. Also, this study covers adolescents too, the age range that Bell would have been a part of. The fact is that Bell is an anomaly, not representative of trans children in general.

Additionally, from her testimony and comments she has given in interviews, it is clear that Bell regrets the results of medical decisions she made after puberty blockers, once considered a mature adult. For example, she regrets no longer having breasts. Her time on puberty blockers have very little to do with this, given that her mastectomy was undertaken many years later. Bell could have chosen to come off the puberty blockers and live life as a cis woman. She could have even chosen to continue with blockers and commence testosterone therapy but keep her breasts. She had all options open to her and she was 20 years old at the time of the latest intervention. Therefore, her testimony does not support the assertion that trans children might regret taking puberty blockers.

There is evidence that trans children think a lot more about the ramifications of puberty blockers than clinicians give them credit for. This study details the thought processes of many of these individuals, and it characterises these young people as very mindful about the risks of treatment. Some key findings of the qualitative study:

One could explain the viewpoint of the adolescents by the fact that adolescence is a period in which short-term rewards are more important than long-term rewards, even when choosing for an immediate reward can mean a later loss or risk… However, the adolescents also showed that they seriously weighed the short- and long-term consequences, and consciously chose for the treatment. Furthermore, they showed a remarkable insight and altruism in their willingness to participate in research, which also meant they were able to look beyond their own short-term interests. It is striking that several interviewed gender dysphoric adolescents gave arguments which were also mentioned by opponents among care providers, for example doubts about the ability of adolescents to make decisions regarding medical treatment at the age of 12 or younger. The adolescents sometimes seemed to be even more cautious than some of the professionals.

Bell truly is not representative of trans youth and her situation should not dictate law for the rest of the population.

The court proceedings understate the evidence for puberty blockers being of benefit to trans children.

The claimants used an unpublished, not as of yet peer-reviewed study to call into question that they are of any benefit at all. This is odd, as all evidence so far is to the contrary. Children and young adults that seek puberty suppression are adamant that it has saved their life; that the blockers have allowed them to think about their gender and what further medical steps they wish to take without the distress caused by developing secondary sex characteristics. Additionally, if the young trans person wishes to medically transition once an adult, their results may be cosmetically better (according to some) than if they had not taken puberty blockers, and they may need fewer surgeries in future. The benefits of puberty blockers are immense, so much so that with medical intervention, psychological wellbeing of trans adolescents improves to the same health as the general population. This is the very reason why they should be accessible to trans youth.

I am unsure why the unpublished study has findings that disagree with all previous evidence so far. According to the court document:

The reported qualitative data on early outcomes of 44 young people who received early pubertal suppression. It noted that 100% of young people stated that they wished to continue on GnRHa, that 23 (52%) reported an improvement in mood since starting the blocker but that 27% reported a decrease in mood. Noted that there was no overall improvement in mood or psychological wellbeing using standardized psychological measures.

It could be that this data is not indicative of the effects of puberty suppression at all, but that the issue is the UK’s hostile attitude towards trans people. The media is saturated with articles speculating whether the trans population are dangerous, criminal, or lying. This is bound to affect mood. Low mood could be a societal problem rather than a medical one.

Regardless of why this particular unpublished study has differing findings to the rest of the body of literature, the court put unreasonable weight on its findings. Other papers should have been considered, rather than this one which has not been peer-reviewed.

Conversely, the court overstated the risks of puberty blockers.

Puberty blockers are mostly reversible, you can stop taking them and normal hormone function will resume. There are some areas of concern; namely, bone density, fertility, and possible neurological effects. There are a couple of very good articles that weigh up the risks and benefits of puberty blockers. The article in the Journal of Medical Ethics outlines why the possible reduction of bone density is less concerning than one may think. There would still be a very low risk of fracture, and there are ways to mitigate bone density loss, such as ensuring vitamin D is adequate and exercising regularly. Once sex hormones are introduced, either via cross-sex hormones or by cessation of puberty blockers and resuming natal sex hormones, bone density improves. Regarding other risks, loss of fertility is not a concern to some trans people, and there are ways to store gametes for future use, including some experimental methods to store immature gametes. If the young person decides transitioning is not for them, resumption of puberty will restore fertility. As for neurological effects, the claimants brought up a study in sheep which indicated there may be some harmful results of puberty suppression, but a small study in humans which was not presented at court indicated that this probably isn’t the case: there was no difference in cognitive function between those who took puberty blockers and those who did not.

Their skewed perception of a risky treatment with arguable benefits, as opposed to a beneficial treatment with arguable risks, probably contributed to the judgement.

The court repeatedly stated that it was not up to them to determine whether there are benefits or risks, but given that weighing up benefits and risks is critical to decision making, and the court case was about whether children can do that, it’s important that the court was given an accurate picture of these benefits and risks. I do not believe they were given this, and their skewed perception of a risky treatment with arguable benefits, as opposed to a beneficial treatment with arguable risks, probably contributed to the judgement.

It is necessary to say here that a lot of weight is put on the fact that studies on trans children (or trans people in general) are often small, and this is often interpreted as a reason why we should discount the study. Bear in mind that the trans population is very small, and so any study is also by necessity small. Remember that the number of children referred for puberty blockers this last year was only 161 individuals. It’s not going to be possible to do large studies. Nonetheless, those longitudinal studies or meta-analyses that do exist are overwhelmingly in support of treatment.

The court says there is confusion over why puberty blockers are prescribed.

This is nonsense. In paragraph 52 they say “There is some dispute as to the purpose of prescribing PBs”, backed up with a statement that does not actually demonstrate a dispute but rather why some might think there is a dispute. Later, in paragraph 134:

There is a lack of clarity over the purpose of the treatment: in particular, whether it provides a “pause to think” in a “hormone neutral” state or is a treatment to limit the effects of puberty, and thus the need for greater surgical and chemical intervention later.

Both are true! Both necessarily have to be true, for how do we provide a pause to think without limiting the effects of puberty? It is impossible to pause time, therefore we must pause the effects of time i.e., the changes that come with puberty. Puberty blockers are only provided to those seeking to limit the effects of puberty, and so doing that allows them the time to decide what to do regarding transition when they’re an adult. There is no dispute here: only the purpose and the method used to achieve it.

Reducing the need for further interventions later is a bonus, for those who continue on to transition, but if puberty is resumed as normal, secondary sex characteristics will develop as normal.

They make the flawed judgement that puberty blockers lead to CSHs, and allow that to be the crux of the argument that children can’t consent.

The real reason puberty blockers and cross-sex hormones are linked.

This is the huge logical leap that I’ve already written a (much shorter) piece on. In short, they assume that since most of the people that take puberty blockers go on to take cross-sex hormones, that puberty blockers might actually cause people to take cross-sex hormones, which is bad reasoning with no supporting evidence. It is simply a correlation due to the demographic of people being studied (trans people). If the child, when they’re older, decides they aren’t trans after all or don’t want hormones for any other reason, they can decide not to take that course, and there are individuals who decide this (around 2% cease treatment after being given time to think). The gender clinics must assess patients again before CSHs are prescribed to determine whether or not this is the right path for them; it is not an automatic step from puberty blockers to CSHs. While it is true that most children and adolescents on puberty blockers choose to continue on to CSHs, this is because only a small number of children who question their gender identity get prescribed puberty blockers in the first place, in particular those who are persistently dysphoric and have been for some time. In other words, the ones who are most likely to actually be trans. To find out if puberty blockers actually cause persistent gender dysphoria, you’d have to give puberty blockers to all children regardless of gender dysphoria (so cisgender children too) and measure how many of them go on to take CSHs, and those studies obviously do not exist.

However, because the court decided that puberty blockers and CSHs are irrevocably linked, they decided that the child must weigh up the risks of CSHs as well as the risks of puberty blockers, and as this is such a huge decision to make for a child, they cannot possibly consent. I find it ludicrous that this is the reasoning they’ve gone with — that we’re talking about risks of a possible treatment the patient isn’t taking yet — but that is the crux of the court case.

This judgement erodes Gillick competency.

Gillick competency is a term used in UK medical law which describes guidelines to assess a child’s maturity to be able to consent to medical treatments without parental consent. It’s vital for a teenager’s access to contraception, for example, when their parents might not be supportive. To expand on that example, birth control is not without risks and side effects, nor is having sex at a young age, potentially in an unsafe manner, but a doctor’s duty is to weigh up those risks with the benefits of a child not becoming pregnant and to act in the best interests of the child. This case is no different, only the benefits of puberty blockers were dismissed and the risks overblown.

The case went into some of the previous rulings around Gillick competency. One of the statements from Lord Scarman was particularly insightful:

The truth may well be that the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession than by “a priori” legal lines of division between capacity and the lack of capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship, and injury to health.

In other words: leave the medical decisions to the doctors. This judgement is in direct opposition to that ethical and legal standard.

It is obvious from the court case that the court knows nothing about trans healthcare; they repeatedly state that it is not up to the courts to decide medical or scientific fact. They know this is not their area of expertise, and yet they come to the decision that it is their role to decide what is in the best interests for gender non-conforming children. We have no idea what these “best interests” orders will look like or how they will be obtained, but we do know they will be court orders, not a conversation between a board of medical experts and the patient in question. This is unnecessary and dangerous gatekeeping.

It is likely that because gender dysphoria is in the cultural zeitgeist, the court is treating it differently than other conditions. The court would probably not, in 2020, intervene with prescribing birth control medications to under-16s, despite new evidence of long-term side effects emerging since Gillick competence first came into law. Similarly, it does not intervene with experimental epilepsy medications or ADHD medications. In general, these decisions are left to doctors and research teams. The same should be true for the prescription of puberty blockers for the small proportion of children or adolescents for whom the doctors determine it is necessary. Gender dysphoria should be no different to any other diagnosis.

Autism Spectrum Disorder was brought up multiple times by the claimants and Transgender Trend, in the context that there are a “worrying” number of female-to-male children with ASD requesting puberty blockers. It should go without saying but I will do so anyway: autistic people can and should make their own decisions about their own bodies.

Applying Gillick competency differently to trans or autistic people than to cis or neurotypical people is a dangerous precedent to set.

Transgender Trend were allowed to contribute but not Stonewall or Mermaids.

The court argued that this was because Stonewall and Mermaids wished to contribute items to the case which were not relevant. However, given the demonstrated lack of knowledge the court has about trans people, it’s unlikely they have the competence to assess what is relevant. Tavistock were unable to provide the statistics the court asked for, but perhaps Mermaids would have some of those statistics as they work with trans children and their families. Transgender Trend spent a lot of their time calling into question whether puberty blockers are effective, something Stonewall, Mermaids and the body of medical research on the subject can attest to. Additionally, paragraph 103 says: “Much of [the director of Transgender Trend’s] evidence focused on the increase of referrals to GIDS of teenage natal girls and the cultural factors, including material on the internet and social media, which may play a part in this.” How is this deemed relevant but Mermaids’ and Stonewall’s contributions are not?

Having one extremely biased group contributing to the case without representation from the other side influenced the way the court ruled.

Transgender Trend was described by the court document as: “an organisation that provides evidence-based information and resources for parents and schools concerning children with GD.” This is laughable. They are a hateful propaganda organisation, as evident from their website.

Having one extremely biased group contributing to the case without representation from the other side, in conjunction with the lack of attention given to data on positive effects of pubertal suppression and heavy speculation on the risks, probably influenced the way the court ruled. I am shocked they thought that a group called Transgender Trend would contribute in any way fairly. In fact, beyond Transgender Trend’s statement, most of the claimants’ “expert” witnesses were health professionals without any expertise in trans healthcare and with troubling connections to anti-LGBT Christian groups. This case had a heavy anti-trans bias from the start, and the judges should have been aware of this.

It is unethical to deny these drugs.

I recommend reading this and this, from the Journal of Medical Ethics and the Journal of Ethics respectively. The benefits of puberty suppression were downplayed in this court case but puberty blockers are an invaluable intervention for a young trans person’s mental and physical wellbeing. The science is clear on this. Those articles above weigh up these benefits with the risks and come to the firm conclusion that puberty blockers are ethical to prescribe. Critically: “It would be unethical to allow a patient to suffer through the distress of pubertal development when we have a way of preventing the distress it causes.”

Applying Gillick competency differently to trans or autistic people than to cis or neurotypical people is a dangerous precedent to set.

So, what are the effects of the judgement?

There have been some developments since the 1st December. Firstly, NHS England took the advice of the court and stopped all referrals for puberty suppressors as soon as the judgement was announced, despite not being required to do this until the 22nd December. This caused a lot of anxiety for gender dysphoric children and their parents who were being seen by Tavistock or on their waiting list. The judgement was stayed until the 22nd December or the appeal, whichever comes latest, and Tavistock have requested to appeal which means treatment should not have been interrupted for these young people. The NHS could have waited to see if the situation became clearer, for example if the appeal was successful, or if the “best interests” order and the process for getting one was better explained. This immediate reaction with nothing to replace it is cruel.

According to a clinician that works with trans patients, NHS England has also been overzealous when it comes to 16- and 17-year-olds, suspending treatment in opposition to the judgement’s guidelines. This is beyond what is legally required. As per the court judgement, those over 16 are assumed competent and a best interests order is only required in cases where there is doubt. It is not known why NHS England have halted all treatment but it seems reckless of them to do so.

No advice on alternative treatment pathways or support has been made public by NHS England. There is currently no process for obtaining a “best interests” order, so appointments have simply been cancelled. Patients have been left in limbo.

Private practices are not required to adhere to the judgement, and nor do doctors overseas. I anticipate an increase in trans youth accessing these services to obtain blockers; this is already common within trans healthcare in general because of the long waiting times on the NHS and this further barrier will only exacerbate the issue. This creates, or rather widens, a class barrier to trans healthcare, as these options are expensive and only available to those whose families can afford it. For those who are not privileged enough to afford this course of action, the internet may be able to provide, but with none of the careful monitoring. No bloodwork, no bone density scans, no fertility advice, no dosage control. This court judgement will put trans children at more risk than they were at before.

This widens a class barrier to trans healthcare.

Much like contraception I suppose — if people are going to do it anyway, there’s no sense in making it less safe for them. Abstinence is never the best policy.

So, that’s the whole of it: we don’t know when appointments will resume; we don’t know how “best interests” orders will be obtained, or how long it will take to receive one; and we don’t know the impact this judgement will have on the health of young trans people. What we do know is that this court case was a sham. Don’t believe me? Read a lawyer’s take on the case here, here and here.