By Meaghan Storey (University of Manchester), Radhika Anand (University of Manchester) and Edmund Horowicz (University of Liverpool)

In December 2020, the English High Court heard a Judicial Review Application, R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others (widely referred to as Bell). The High Court in Bell was asked to determine if gender diverse minors experiencing Gender Dysphoria (GD) could lawfully consent to prescribed puberty blockers. Puberty blockers (PBs) are gonadotropin-releasing hormone analogues that pause the physical changes of puberty for the purposes of allowing children time to explore their gender identity. Currently being challenged in the Court of Appeal, the High Court ruled that young people under the age of 16 are highly unlikely to be able to consent to this form of treatment. As a result, PBs would require court authorisation for under 16’s, with clinicians potentially even having to request the same for minors aged 16 and 17, despite this population having greater statutory decision-making authority.[1]

Whilst the decision in Bell raises several complex issues around children’s capacity to consent to treatment and the nature of PBs as a medical intervention, we focus in this article on another concern; that withholding PBs prolongs the presenting distress associated with GD, which may have serious and harmful consequences. Although the Court acknowledged this, the focus was placed on the potential for long-term harm,

‘On the defendant’s case they suffer considerable psychological distress by reason of their GD and are highly vulnerable. In those circumstances, the consequences of taking PBs on their fertility for example, or on their sexual life, may be viewed as a relatively small price to pay for what may be perceived as a solution to their immediate and real psychological distress. It would not follow however that their weighing of risks and benefits when they might start taking PBs would prevail in the longer-term.’[2]

However, we argue that the immediate distress associated with GD should have been regarded as a significant concern given the potential for serious harm. Specifically, we will argue that the decision in Bell fails to consider the views and feelings of the child sufficiently. Consequently, the judgment diminishes children’s views in regard to their suffering and as a result their autonomy is restricted, which is problematic in the context of the right to be heard under Article 12 of the United Nations Convention on the Rights of the Child (UNCRC).

Immediate Distress versus Long Term Harm

Diagnostic requirements for GD explain that children with GD experience psychological distress in respect of their body, which often increases with the onset of puberty. This psychological distress can compound mental health issues such as self-harm and suicidality. As such, adolescents with GD have a higher rate of suicidal ideations, plans and attempts, compared to their cisgender counterparts.[3] Of significance is that studies have shown that the use of PBs help reduce suicidal ideations and improve mental health outcomes. Whilst the serious nature of the distress associated with GD was acknowledged by the Court, it was quickly followed by a discussion on the limited evidence of psychological benefit offered by PBs.[4] Worryingly, this position failed to highlight the use of PBs in children and adolescents with GD within international clinical guidelines.

A further concern that we have is that the Court linked the use of PBs with complete gender reassignment, including cross-sex hormone therapy and surgery. Instead of viewing PBs as reversible treatment that can significantly reduce the real and immediate distress experienced by children with GD, the Court focused on potential future gender-affirming medical decisions and the implications of these. Specifically, the Court repeatedly referred to sexual function and reproduction as a future concern that could not be grasped or consented to by children and adolescents. Without clearly defining the meaning of either of these terms, it seems that the Court was highly concerned with maintaining the possibility of heteronormative sexual function and reproduction. By focusing on potential future gender-affirming interventions, we argue that this creates a significant barrier to listening to children for whom PBs may be clinically in their immediate best interests.

The Right to be Heard

Article 12 of the UNCRC states that the views of children should be given due weight in accordance with age and maturity. Although children will vary in terms of their understanding of PBs, this Article applies to any child that is “capable of forming his or her own views.” Moreover, the fact that a child is young or in a vulnerable position should not deny the child of the right to express their views, nor diminish them in relation to their best interests.[5] As noted by Paechter, the judgment implies that even if PBs would offer potential benefit to a child experiencing GD, it is in the best interest of that child to withhold the use of such treatment.[6] This assessment of best interest puts much greater weight on potential future harm than the present views and distress of the child. The Court thus used its inherent jurisdiction to limit access to PBs based on this conception of best interest, resulting in a restriction of the right to be heard for children with GD.

Conclusion

The immediate distress that children with GD experience should not have been seemingly disregarded by the Court and neither should their right to be heard. As stated by the Court, these children already fall into a highly vulnerable group and therefore the Court should not have further marginalised this group by dismissing their voices. Following this brief analysis, we argue that clinical care and the use of PBs in England should follow internationally recognised standards of care, led by clinicians, children and their families, rather than the courts. We further argue that the Court of Appeal should regard the High Court decision in Bell as being potentially harmful to, rather than protective of, gender diverse children and adolescents, particularly when paternalistic concerns conflict with the child’s right to be heard.

[1] Family Law Reform Act 1969; Mental Capacity Act 2005

[2] R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274(Admin) [142]

[3] Brian Thoma and others, ‘Suicidality Disparities Between Transgender and Cisgender Adolescents’ (2019) Pediatrics

[4] R (on the application of) Quincy Bell and A v Tavistock and Portman NHS Trust and others [2020] EWHC 3274(Admin) [53-54]

[5] General Comment 14, United Nations Convention on the Rights of the Child

[6] Carrie Paechter, ‘The rights and interests of trans and intersex children: considerations, conflicts and implications in relation to the UNCRC’ (2021) Journal of Gender Studies