Mermaids at Pride in London, 2019. (Wiktor Szymanowicz/Barcroft Media via Getty Images)
Daminee Budhi is the legal policy officer at Mermaids. Writing ahead of this week’s landmark court battle over trans children’s access to puberty blockers, she argues that a positive ruling for the claimants could affect access to healthcare for all children.
A judicial review has been brought against The Tavistock and Portman NHS Trust, which houses the Gender Identity Development Services (GIDS) clinic, and which supports young people, and their families, who are experiencing difficulties around their gender identity.
The claimants are a 23-year-old former Tavistock patient, Keira Bell, and a ‘Mrs A’, the mother of an autistic 15-year-old who is on the GIDS waiting list. Their argument goes that that those under the age of 18 are unable to give informed consent for affirmative medical treatment, specifically puberty blockers.
If successful, the case threatens to set a far-reaching and regressive legal precedent, undermining the landmark case of Gillick v West Norfolk (1986), which has given young people the right to make important decisions about their own bodies without the need for parental consent. Gillick competence recognises “the evolving maturity and individuality of children”. All children. Not certain children with certain needs. Ending Gillick competence for trans teenagers seeking puberty blockers would fly directly in the face of international best practice and effectively class them as being incapable of making decisions like anyone else their age.
Being transgender is not a psychiatric disorder.
The World Health Organization reclassified gender incongruence last year, stating correctly that it is not a psychological or psychiatric disorder. But what is seemingly nodded to in this case is that trans young people are presenting as gender-diverse due to some form of mental instability, or lack of competence. In fact, studies have shown that, far from affirming or consolidating mental-health issues, puberty blockers can and do have a positive effect on trans young people because they delay of the onset of a puberty that is likely to cause them immense distress.
Puberty blockers can and do have a positive effect on trans young people.
As one example, puberty blockers have been described as ‘life savers’ by a study published in the medical journal Paediatrics in January 2020, which showed that the treatment significantly reduces a trans child’s likelihood of experiencing mental-health issues or suicidal thoughts.
Make no mistake: The outcome of this judicial review is a matter of life or death for some trans teenagers.
Puberty blockers now, contraception and abortions next?
Not only would this judicial review, if successful, question young trans people’s ability to consent to medical treatment, it would also require such an intensely personal medical decision to be handled by an often intimidating and impersonal judicial system – rather than a medical team, who are trained to support young people in making such important medical decisions.
Meanwhile, this case has far-reaching implications beyond trans lives. As a cisgender woman as well as a trans ally, I want to explore the broader implications of this case to all women. What might the judicial review mean, more generally, for young people and their right to make decisions about their own bodies?
This case has far-reaching implications beyond trans lives.
The case goes right to the fundamental core of Gillick competency and how it should be applied to different demographics of young people. I see a very real risk that this case challenges the rights of all those under 18 who rely on Gillick competence in order to make their own informed decisions about their bodies. That includes women under 18 who require access to the pill and even abortions without parental consent.
We cannot view the rights of trans children in a vacuum; to do so would be a dangerous mistake. If this claim were successful, it would be a huge loss for anyone who believes that children should have the right to decide, when appropriate, what happens to their bodies.
Gillick competency – as well as the Fraser guidelines that refer specifically to advice and treatment about contraception and sexual health – was created to protect young people, at the same time identifying that they have the right to be their own advocate once they have an ability to understand what the consequences of treatment may be, or importantly, what the consequence of not having treatment may be.
If we deny trans young people the ability to consent to medical treatment, who will be next?
What would be next? In my opinion, it’s a slippery slope: if we deny trans young people the ability to consent to medical treatment, who will be next?
We are all as vulnerable as the most vulnerable people in society, and right now, with constant misinformation spread online, in politics and in traditional media including the UK’s largest newspapers and the BBC, trans people are very vulnerable indeed. If a positive claim does have a domino-effect, we are looking at a potential mass rollback of child rights across the board. This undermining of Gillick competence nods towards a future where the right to abortion and pro-choice decisions are restricted for all, destroying freedoms long fought for by women’s rights activists.
The rights of all children are at stake in this case – not just trans kids.
At Mermaids we support young people and families no matter the journey they are on. We offer no medical advice, but we do bear witness to young people being provided with vital information, such as the purpose and nature of the treatment, the likely effects and risks attached to undergoing such treatment (and the effects of not), the chances of success, as well the availability of other options that are out there, given to them by NHS medical professionals.
The rights of all young people – transgender or otherwise – are at stake here.
I would ask people not to let the rhetoric around trans issues blind them to the truth lying barely beneath the surface of this case. The rights of all young people – transgender or otherwise – are at stake here. If young people have the right to make informed decisions about their own bodies, then surely we must accept that transgender and gender-diverse children cannot be excluded from that right.