Transgender on trial

In March this year judges gave permission for Keira Bell, Susan Evans and a woman known as ‘Mrs A’ to bring a case against the Gender identity development services (GIDS) clinic at the Tavistock and Portman NHS Trust.

Bell is a former patient of the clinic. Born female, she felt a growing urge through childhood to change her gender, and as she learned more online about transitioning, her determination grew. She was referred to the Tavistock Centre at the age of 16 and was prescribed puberty blockers. A year later she was prescribed the male hormone testosterone. In 2017 she had what is known as ‘top surgery’ – a double mastectomy. However, Keira, now 23, regrets her decision and feels she should have been challenged more by clinicians rather than being allowed to pursue such ‘powerful and experimental’ treatment.

‘Mrs A’ is the mother of a fifteen-year-old girl who is currently on the waiting list for treatment at the Tavistock centre. Her daughter is autistic, and Mrs A has ‘deep concerns’ that her daughter will be placed on ‘an experimental treatment path that is not adequately regulated, where there are insufficient safeguards, where her autism will not be properly accounted for and where no-one (let alone my daughter) understands the risks and therefore [the clinic] cannot ensure informed consent is obtained.’

Susan Evans was initially the lead claimant on the case, though that role has now been taken by Ms Bell. Mrs Evans is a former psychiatric nurse at the Tavistock Clinic, and raised concerns about their practices – in particular, to do with the speed at which young people were put on hormone treatment – as long ago as 2004.

The case will test the concept of informed consent of children. Since the 1980s children under the age of sixteen have been able to make certain decisions about their treatment – notably around contraception – under what is known as the ‘Gillick competency test’. The test is named after Victoria Gillick, a mother who tried – and failed – to obtain assurance that ‘it would be unlawful for a doctor to prescribe contraceptives to girls under 16 without the knowledge or consent of the parent’. The NHS guidelines around children’s consent state that, ‘Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what’s involved in their treatment.’ [Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords].

Paul Conrathe, a solicitor with Sinclairslaw who are representing Bell et al., argues that ‘it is a leap too far to think that Gillick as a judgment could apply to this type of scenario, where a young person is being offered a treatment with lifelong consequences when they are at a stage of emotional and mental vulnerability.’

Bell agrees. She notes that she was very sure and settled in her desire to transition’ and had ‘no doubt’ she wanted to become a boy: ‘I wanted to go onto the medical pathway as soon as possible, I was very eager and I was very reluctant about speaking to anyone who would possibly get in the way of that.’ But she now regrets her decision and thinks ‘ it’s up to these institutions, like the Tavistock, to step in and make children reconsider what they are saying, because it is a life-altering path.’

The case comes at a time when the Scottish government is considering the responses to its consultation on a proposed Bill to ‘[reform] the process by which trans people gain legal recognition of their lived gender through a gender recognition certificate.’ This would make it significantly easier and quicker for Scottish residents aged 16 and over to gain legal recognition of a change of gender.

Meanwhile, in Oxford, ‘a teenage girl has applied for judicial review over official school guidance that says she should share changing rooms, lavatories and residential dormitories with trans girls.’ The Safe Schools Alliance, supporting the legal action, says the guidance is ‘in direct opposition to all safeguarding protocols.’

The transgender agenda is being pushed very hard in some quarters, but cases such as these against the Tavistock centre and Oxfordshire County Council are shining a bright light on some of the flawed thinking that is driving change. While much of the pressure is coming from people with a genuine concern for the wellbeing of young people who are experiencing distress around questions of their identity and society’s expectations, their safety must come first. Placing the burden of consent on people too young and distressed to be able to fully understand the life-long implications of treatment – many of which are simply not known at this point – is unfair and unsafe. We applaud the courage of the women bringing these cases and hope and pray that reason will prevail.