Bell vs Tavistock overturned!
In 2004, I attended my first conference about gender dysphoric youth in London at The Tavistock and Portman Clinic (“Tavistock”). It was so informative that I spent the entire flight home writing a program proposal for the University of Michigan Comprehensive Gender Services Program to start treating minors. Alas, that did not occur until more than ten years later.
Since 1989, Tavistock has operated a Gender Identity Development Service for patients up to the age of 18 suffering from gender dysphoria. The clinic developed a protocol for assessment and treatment of gender dysphoric youth that was supported by evidence- based research primarily from two prolific researchers (Peggy Cohen Kettenis in the Netherlands and Ken Zucker in Canada) whom cumulatively have over 600 research publications. Tavistock has continued to rely on relevant research and guidelines and hires devoted specialists.
However, last year a case was brought against Tavistock by Keira Bell – a 24-year-old woman who had begun taking puberty blockers when she was 16 and later “detransitioned”. The aim of the litigation was to require court involvement before anyone under the age of 18 would be prescribed puberty blockers, even with parental consent. The argument was that those under 18 were not capable of giving informed consent to the treatment. Tavistock was the first clinic to be hit with such a lawsuit and the entire professional community was stunned.
The irony of the case is that Tavistock does not prescribe puberty blockers and that the process which occurs prior to any youth getting blockers is thorough in terms of assessing whether the dysphoria is insistent, consistent, and persistent. In fact, there is usually a wait of between 22 and 24 months before a youth can be seen for a series of assessment appointments! If, after assessment, Tavistock believes that the child would benefit from treatment and can give consent to puberty blockers (the first step in any such treatment), a referral is made to a one of two pediatric endocrinology clinics. A referral requires the consent of the child and of the parents and the clinic independently makes its own assessment and only prescribes puberty blockers if they too determine that it would be the be the proper treatment. The treatment only commences after obtaining valid consent from the child and the parents of the child.
In the UK, there is a concept known as Gillick competence which states that children under 16 can consent to medical treatment if they understand what is being proposed. (This allows minors to get access to birth control for instance.) In any given situation, it is up to the doctor to decide whether the child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits.
In Bell vs Tavistock, the UK High Court ruled it was “highly unlikely” that a child aged 13 or under would be able to consent to the hormone-blocking treatment and that it was “very doubtful” a child of 14 or 15 would understand the long-term consequences. Ironically, at the two pediatric endocrinology clinics the median age for consenting to puberty blockers is 14.6 and 15.9.
It was noted that many of the youth who are given blockers later receive cross-sex hormones. Based on this the Court concluded that, to achieve Gillick competence the child would have to understand all the following (notice “the unknown” in vii):
- the immediate consequences of the treatment in physical and psychological terms;
- the fact that the vast majority of patients taking blockers go on to cross-sex hormones and therefore that they are on a pathway to much greater medical interventions;
- 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;
- the impact of cross-sex hormones on sexual function;
- the impact that taking this step on this treatment pathway may have on future and life-long relationships;
- the unknown physical consequences of taking blockers; and
- the fact that the evidence base for this treatment is as yet highly uncertain.
It was implied that the great numbers of youth went on to receive hormones after blockers was indicative of prescribing that was done too freely. Tavistock argued that, to the contrary, the percentage is high precisely because they carefully screen and only refer for blocker those youth who are most dysphoric and therefore most likely to also qualify for hormones later. Nonetheless, the court ruled in Bell’s favor and clinics everywhere took notice.
Tavistock brought an appeal against the ruling and leveled the following objections, among others:
- The court misapplied the law in Gillick
- The court erroneously concluded that the prescription of puberty blockers for gender dysphoria is “experimental”
- The court relied on expert evidence brought forth by the claimants which contradicted the well-established research evidence brought forth by Tavistock
- And the court ruling discriminates against children with gender dysphoria which breaches article 14 of the European Convention on Human Rights.
At the appeal, Tavistock prevailed and the ruling was overturned. The Court of Appeal upheld the belief that it is up to doctors to determine whether a patient can properly consent and that courts should not be involved. Tavistock commented that “It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.”
Following the ruling, Keira Bell, said: “I am obviously disappointed with the ruling of the court today and especially that it did not grapple with the significant risk of harm that children are exposed to by being given powerful experimental drugs.” There was no acknowledgment of the risk of harm that children are exposed to by having to experience a puberty that is dysphoric for them. Furthermore, the comment also exaggerates that these are “powerful experimental drugs” given that the first use of puberty blockers to treat gender dysphoria in youth was in the late 1990s and that by then puberty blockers had already been used for many years to that to stop precocious puberty without detrimental effect.
I look forward to attending WPATH in person in 2022 and congratulating my colleagues from Tavistock who withstood this attack on the vital service they, and numerous other clinics, provide.
To read the recent ruling go to: https://www.judiciary.uk/wp-content/uploads/2021/09/Bell-v-Tavistock-judgment-170921.pdf