Month: December 2020

Too often, trans people’s lives disappear into a morass of medical and legal arguments. Too often, we fail to see the person behind the arguments; the lives behind the debate.

I am writing an academic article about narratability, about the capacity to tell one’s story, and the relationship between that and human rights; the accessibility and reality of rights for trans people. I have returned to this post again and again. It remains difficult to write.

Here is the issue: there is a large lobby of people in this country who wish trans people did not exist. There is a large lobby of people in this country who would rather children were suicidal than that they were trans, or that they were helped. These people have a platform that we do not. I am writing on this blog; they are writing in the newspapers.

In the past few weeks, the courts here in the UK have decided that children under 16 are very unlikely to be able to consent to puberty blocking hormonal treatment. Puberty blockers are a safe, reversible treatment which are used to delay the onset of pubertal developments which are incongruous with the child’s gender identity. They are recognised worldwide as a useful – indeed, often necessary – intervention for trans children. But the decision of the High Court has meant that it is now highly unlikely that children will be able to access this treatment. It is hard to convey the devastation this is causing for the children affected, and for their families. Overnight, their access to the healthcare that is allowing them to cope with growing up in a world where their interactions with society are shaped by an incongruity between their self-image and society’s perception, has been taken away. Overnight, their safety-net has been ripped from underneath them.

I don’t intend, in this post, to go into the academic or legal aspects of the judgment. I’ve already done that in another post. I want to highlight the human.

Here’s the thing. Trans people should have the right to their stories. Their own stories, of their own lives, lived how they choose. But the restrictions that a cisnormative society – a society that privileges cisgender identity – places them under mean that frequently, they must sacrifice that right in order to be understood by institutions like doctors and courts. The children affected by the Bell ruling have already had to explain themselves over and over to doctors. Now they will have to do the same thing to a judge, before they can access their medications.

Cisnormative institutions understand a particular kind of story. They understand one where trans identity is pathologised – where it is a medical process. They understand the narrative of transition as a definable journey from a point A on a binary scale to a point B on the opposite side. They understand stories where gender identity is fixed and does not fluctuate. We can see this in the terms set out in the Gender Recognition Act 2004 – its insistence that you must choose a gender identity to live in until the end of your life; its requirement of a two-year ‘real life test’ before legal gender recognition can be approved.

But this is not reality. In reality, gender identity is messy and nuanced and fluid, and glorious in its indefinability. People’s identity changes over the course of their life. They identify inside or outside the binary. They transgress gender norms and categories and live in the liminal spaces. Law and medicine do not understand this because of what they are, because they are creatures of rules and norms.

I am writing about how, when applicants came to the European Court of Human Rights to petition for the UK to legislate for legal gender recognition, their stories were taken from this beautiful humanity and distilled down to narratives of surgery, effort, and pain. Before the law would hear them, they had to have gone through medical and surgical interventions. Before they could access those, they had to lay open their lives to doctors. Their transition journeys, as mediated through the lens of medical science, had to be literally written on their bodies in pain before the Court of Human Rights would hear their applications. This does not feel like human rights.

I am struck by the absence of trans people in the reporting around the Bell decision. I am struck by watching three experts in trans and gender law – all trans – defending their lives and experiences to the Women and Equalities Committee of Parliament, and being countered by three non-experts whose qualifications seem to be mainly being academics with opinions.

I want us to do more than hashtag #TransRightsAreHumanRights. They are, of course, and as a human rights lawyer I will defend that to the last. But we seem to be losing the human. I am writing about stories, and I am trying to highlight the loss of stories – because if we do not hear people, really hear them, we cannot possibly hope to share in any constructive actions toward making the world a better place for them to live in.

If society cannot hear who trans people are without making them commit to definitions of gender invented by cisgender doctors; without making them undergo physical transformations so that they conform to cisgender standards of bodily presentation; without having them explain their lives to cisgender judges to gain approval under cisnormative laws; then society as a whole is failing them.

I am writing about stories, and rights, and where they intersect. I am writing for a future where I do not have to do this work. I will listen to the stories that that future will tell.

Today the High Court handed down its judgment in the case of Bell v Tavistock NHS Trust, which case concerned a judicial review of the practice of the Tavistock Gender Identity Development Service in prescribing puberty-blocking medical treatments to persons under the age of 18.

Puberty blockers are hormonal medicine which delay the onset of normal puberty and stop the development of physical pubertal indicators. They are used for trans children, to spare them having to grow up in a body which does not match their gender identity, and cis children who undergo precocious puberty. Puberty blockers can be a lifesaving treatment for young persons who have suicidal ideation as a result of their changing bodies. Their effects on puberty indicators are completely reversible, however some questions around their effects on other physical factors like bone density and fertility are still under investigation.

Puberty blockers are often prescribed to children who receive a diagnosis of gender dysphoria from services like Tavistock GIDS. In many cases, those children go on to undertake further medical interventions such as hormonal treatments (CSH) as adults – however, it is exceedingly important to note that this is not inevitable.

The complainant in this case identified as a trans boy as a teenager and into young adulthood, although as an adult she now identifies as a woman. She claims that “I made a brash decision [in transitioning] as a teenager, (as a lot of teenagers do) trying to find confidence and happiness, except now the rest of my life will be negatively affected. I cannot reverse any of the physical, mental or legal changes that I went through.” (83) She does not believe that she was competent to make those decisions as a minor (however, again, it is to be noted that the irreversible parts of her transition, such as her mastectomy, took place as an adult – minors do not receive gender-related surgery in the UK).

Minors are held to be competent to make medical decisions if they fulfil what is known as Gillick competence. This arises from the case of Gillick v West Norfolk and Wisbech Area Health Authority (1986), in which a 16-year-old girl wanted to access contraception. The Court held that she could validly consent to the treatment “if she had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment.” (105) Gillick competence has been used for trans children accessing gender-affirming treatment.

However, the Court in Bell has restricted Gillick competence in the case of under-16s. Although the principle still applies, they state that “The conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]… In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.”

The list of factors that the Court believes a young person needs to understand in order to be Gillick competent are as follows:

It is not impossible that a teenager would be able to answer to this list. However, it would be difficult to prove.

The Court’s reasoning includes the following excerpt:

“First, the clinical interventions involve significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons. The treatment involved is truly life changing, going as it does to the very heart of an individual’s identity. Secondly, at present, it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment. (148)

… In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take PBs. There is a real benefit in the court, almost certainly with a child’s guardian appointed, having oversight over the decision… As we have explained above, we consider this treatment to be one where the protective role of the court is appropriate… (149)

The problem is not the information given, but the ability of the children and young people, to understand and most importantly weigh up that information. The approach of the defendant appears to have been to work on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency. As we have explained above, we do not think that this assumption is correct.” (150)

There are likely to be a number of effects arising from this decision. In this section, I am expressing my own opinions.

Firstly, it is likely to cause a significant chilling effect on the prescription of gender-affirming hormonal treatments to persons under 16. The Court appears to use a reasonable-person standard that it is holding high above the heads of children (whether or not, in real life, they could meet it). With this, it will be harder for a child to be declared Gillick competent to receive puberty blockers. The “protective” role of the Courts is also a concern. Will court orders be required in the provision of puberty blockers to young trans people? This would cause significant delays in treatment and could potentially have deleterious effects on the mental health of the young people in question, both from the delay and the general difficulties of going through the scrutiny and stress of the court process.

(Edit, 9pm, December 1st: it is being reported that the GIDS is already contacting families of trans young people and cancelling their appointments.)

Even for a decision regarding medical treatments, this is a particularly pathologised piece of jurisprudence. This blog post has tried to be trans-affirming in its expressions; however, in that, it does not follow the judgment itself. Transgender identity is referred to as ‘gender dysphoria’ all through, with the emphasis on its diagnosis as a psychological condition that people “suffer from.” There is no affirmation of the identities of these young people and no rights-based language. Transition is presented as a negative process which should almost be avoided if possible, rather than a series of interventions, many reversible, which can improve the lives of the people in question.

With regard to the correlation between children who take puberty blockers and adults who go on to take hormonal interventions, the Court seems to take the high correlation rate as an indicator that such advancement is inevitable, even including the effects of “CSH” on sexual function (etc) in their conditions for Gillick competence. This seems erroneous. Correlation is not destiny. Puberty blockers are reversible. Adult hormonal treatments are not inevitable. It does not seem entirely justifiable to say that one MUST understand the effects of adult hormonal treatments at age 13 when one must be at least 16 to make the informed choice as to whether to begin those treatments.

Lastly, and most concerningly, this case may have ripple effects for other questions of the bodily autonomy of minors. What happens now to a 14-year-old presenting needing an abortion? Is she to be taken to understand the “lifelong consequences” of her decision, or is the standard for Gillick competence to be raised on her too? If so, there is a human rights violation in the waiting for minors needing reproductive healthcare and it seems inevitable that this will end up before the Courts.

Dr Sandra Duffy holds a PhD in international human rights law, focusing on gender identities and gender recognition law. She is co-author of the ILGA Trans Legal Mapping Report, which catalogues global gender recognition laws.