The British Court of Appeal has overturned the decision from 2020 which declared that children under 16 were unable to made a informed decision about receiving puberty blocking hormone drugs as treatment for gender dysphoria.
The Tavistock and Portman National Health Service foundation trust, which operate England’s only gender treatment clinic for children, challenged a high court ruling from 2020 known as Bell vs Tavistock.
The case saw 24 year-old Keira Bell bring a case against the clinic. Bell had begun taking puberty blockers at 16, and transitioned gender. She later decided to de-transition and brought a case against the clinic arguing that she was not legally competent to make the decision to commence the treatment. The other applicant in the case was an unnamed mother of a teenage autistic girl who was on the waiting list for treatment.
The judges ruled that to receive treatment anyone under the age of 18 may need to consult with the courts before commencing treatment. Following the 2020 decision the Tavistock stopped taking new referrals for people under the age of 16.
The decision has ramifications around the world. In Australia some jurisdictions began insisting that patients apply to the courts before commencing medical treatment. Transgender rights groups have argued that the decision extends wait times for patients, causes additional mental distress and puts a huge financial burden on people seeking treatment.
On Friday the British decision was overturned with the lord chief justice, Lord Burnett, Sir Geoffrey Vos and Lady Justice King saying it has inappropriate for the high court to issue the guidance.
“The effect of the guidance was to require applications to the court in circumstances where the divisional court (a branch of the high court) itself had recognised that there was no legal obligation to do so. It placed patients, parents and clinicians in a very difficult position.
“In practice the guidance would have the effect of denying treatment in many circumstances for want of resources to make such an application coupled with inevitable delay through court involvement.” the judges declared.
The court said when it came to consent “it was for clinicians rather than the court to decide on competence”, describing it as a long established legal principle. The judges said that none of the expert evidence put forward by the claimants complied with the relevant rules “and a good deal of it is argumentative and adversarial”.
A spokesperson for The Tavistock said: “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.
Kiera Bell has indicated she will seek leave to appeal to the Supreme Court to have the case examined by the higher court.
In a statement Bell said she was disappointed with the decision of the appeal court, and vowed to continue fighting for the laws to be changed.
“A global conversation has begun and has been shaped by this case. There is more to be done. It is a fantasy and deeply concerning that any doctor could believe a 10-year-old could consent to the loss of their fertility.” Bell said.
OIP Staff
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