Keira Bell brought legal action against the Tavistock and Portman NHS Trust. (YouTube/Sky News)
The NHS has won its appeal against a High Court ruling in the Keira Bell case that said trans under-16s can’t consent to puberty blockers and should be made to go before a judge to access the medication.
In its ruling today, the Court of Appeal said that it was “inappropriate” for the High Court to “provide the guidance” that trans youth couldn’t consent to puberty blockers, adding that “the claim for judicial review should have been dismissed” outright.
“We recognise that the guidance stemmed from the understandable concern of the Divisional Court for the welfare of children suffering from gender dysphoria who, it is common ground, are deeply distressed and highly vulnerable,” the Court of Appeal judges said.
“In our judgment, however, the court was not in a position to generalise about the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers.”
The ruling adds that the High Court was “not equipped” to rule on whether trans kids can consent to puberty blockers, known as Gillick competence, and that “it would have been better to avoid controversial factual findings”.
The judges also said that there is no “real distinction” between trans youth being Gillick competent to take puberty blockers and under-16s using Gillick competence to access contraception.
“When Gillick was decided 35 years ago, the issues it raised in respect of contraception for the under-16s were highly controversial in a way that is now hard to imagine,” judges said.
The ruling concludes: “The present proceedings do not require the courts to determine whether the treatment for gender dysphoria is a wise or unwise course or whether it should be available through medical facilities in England and Wales.
“Such policy decisions are for the National Health Service, the medical profession and its regulators and government and parliament. The treatment of children for gender dysphoria is lawful in this jurisdiction.”
A Tavistock and Portman spokesperson told PinkNews: “We welcome the Court of Appeal’s judgment on behalf of the young people who require the GIDS service and our dedicated staff. The judgment upholds established legal principles which respect the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures.
“It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.
“We recognise the work we do is complex and, working with our partners, we are committed to continue to improve the quality of care and decision making for our patients and to strengthen the evidence base in this developing area of care.”
A timeline of the legal battle over healthcare for trans kids
In February 2020, the High Court granted permission for a landmark judicial review into whether young trans people can give informed consent to puberty blockers.
In the summer of 2020, the High Court gave anti-trans group Transgender Trend permission to intervene in the case, but rejected attempts by LGBT+ charities Stonewall and Mermaids to do the same.
The case was heard over two days in October 2020, with Bell’s lawyer arguing that puberty blockers are an “experimental” and “dangerous” treatment that trans under-16s should be made to go to court and obtain a judge’s approval before being allowed to take.
Lawyers for the Tavistock told the court it was “preposterous” to say a trans young person should seek judge’s approval before accessing the medication, pointing out that the process by which clinicians obtain informed consent from young patients, known as Gillick competence, is well established.
The UK’s biggest children’s charities, including Barnados and the NSPCC, united in their defence of trans kids’ right to access gender-affirming healthcare like puberty blockers.
In December 2020, the High Court ruled in favour of Bell. The judges said in their ruling that it is “doubtful” children aged 14 to 15 could understand “the long-term risks and consequences” of taking puberty blockers and then hormone replacement therapy (HRT), and “highly unlikely” that children under 13 would be competent to give consent.
The NHS immediately paused referrals from GIDs for puberty blockers, and the future of healthcare for young trans people in England and Wales became uncertain. The Tavistock announced at the end of December that it would appeal the ruling.
In March 2021, a separate case saw the High Court rule that “loving parents” can consent to puberty blockers on their child’s behalf. This partially reversed the effects of the Bell ruling. The case, AB v Tavistock and Portman NHS Trust, was funded by Good Law Project’s Trans Defence Fund.
In June 2021, the NHS appealed against the December ruling at the Court of Appeal, with a coalition of groups – including national trans charity Gendered Intelligence, the Endocrine Society, Brook, and Liberty – joining as intervenors.
At that hearing, lawyers for the NHS argued that clinicians prescribing puberty blockers to trans kids are “extensively” and “powerfully” regulated. Keira Bell’s lawyer, Jeremy Hyam QC, reiterated his argument that it is a “fairytale” to think that young trans people are capable of consenting to “experimental” healthcare.
“The way that consent was being obtained was illegal,” Hyam told the Court of Appeal of the Tavistock’s procedures.
The Keira Bell case: Who is involved?
The landmark case was brought against GIDS, the Gender Identity Development Service at the NHS’s Tavistock and Portman trust in London.
GIDS provides healthcare to young trans people, which can include puberty-blocking medication for under-16s. The waiting list for a first appointment at GIDS after a young person is referred by their GP is currently three years.
The High Court challenge was brought by Keira Bell, then 23, who took puberty blockers at 16 and had top surgery at 20 but has since detransitioned, and Mrs A, who is trying to prevent her then 16-year-old child taking puberty blockers.
What are puberty blockers?
The medication is prescribed to trans teens by specialist endocrinologists after they are referred by clinicians at GIDS, the only gender clinic for trans under-18s in England and Wales.
During High Court hearings for the Keira Bell case, it was confirmed that in the year to April 2021, just 131 young trans people accessed the medication in the whole of England and Wales. This could be as a result of years-long waiting lists for GIDS and stringent consent processes
Puberty blockers are an internationally recognised best-practice treatment for young trans people, which delay puberty until a trans teenager is old enough to make decisions about having gender-affirming medical treatment.
The medication is are “well studied, safe and completely reversible“. If the trans teen stops taking them, puberty will recommence. The medication has been used to delay the puberty of young trans people since the 1990s.
A landmark January 2020 study, published in medical journal Pediatrics, found that puberty blockers are a “life-saving” treatment and if trans teenagers have access to the medication, their chance of suicide and mental-health problems significantly declines.
It is not yet known if Keira Bell will ask the Supreme Court for permission to appeal the Court of Appeal’s judgment.