Trans Rights in the High Court

Trans Rights High Court

A legal case brought against England’s only NHS specialist gender clinic has jeopardised young trans people’s access to essential healthcare.

Content Warning: Discussions of transphobia & gender dysphoria.

I’d like to thank Charlie Tidmas, Ed England & Alfie Makepeace for their contributions to this article. Alfie currently has a Gofundme active for his top surgery, which you can donate to here!

A huge blow for transgender people came in early December, after the high court ruled that transgender and nonbinary individuals under the age of 16 are not able to be prescribed puberty blockers. The decision was made due to concerns over whether these young people are able to provide informed consent to receive the treatment, though the voracity of these concerns is questionable. For transgender youth, this decision further exacerbates the difficulties faced when seeking treatment for gender dysphoria, as puberty blockers were one of the few options available to under 16s questioning their gender identity.

The ruling came as a result of a case filed against GIDS (the Gender Identity Development Service for Children and Adolescents) by Keira Bell, 23, a cisgender woman who argued she was too young to be prescribed puberty blockers when she was a teenager. Bell’s case is arguably the highest profile example of an individual detransitioning, though it is incredibly important to note that the detransition rate of transgender people is very low, being below one percent. Though Bell’s case was constructed around the notion that she received little pushback from the Tavistock clinic, this case is by no means representative of the wider experience of trans youth.

Puberty blockers, designed to delay the onset or continuation of puberty, had only been prescribed to 267 people below the age of 15 between 2012 and 2018, and are generally used to buy time to help young people decide if they want further treatment to aid gender transitioning. As such, the vast majority of those prescribed puberty blockers go on to transition This limited rollout of these puberty-blocking drugs indicates a handful of things. Firstly, that generally speaking, the issue of overmedicalizing transgender youth is a totally illusory ‘threat’, and the moral panic over it does not serve to protect anyone, but rather to provide a fig leaf for those seeking to undermine legal and medical protections for trans people. Case and point: over the six-year period in question, the number of puberty blocker prescriptions averaged to about 44 prescriptions per year, less than one a week, at England’s only GIDS (Gender Identity Development Service for Children and Adolescents) clinic.

The main concerns linked with the medication’s usage lie in a handful of concerns about certain developmental interferences that puberty blockers may cause. The side effects associated with long-term use entail potential issues with bone growth, with connections to osteoporosis, causing high risks of bone breakages, as well as a risks involving future fertility. As a result, the medication is rarely prescribed in the long-term, which largely mitigates for the associated risks, and these side effects are well known. Furthermore, the medication’s effects are reversible, as the body will resume producing hormones once the puberty blockers have stopped being taken, further lending weight to the idea that the medication is a relatively low-risk option for young trans people.

The issue of consent is complex in this instance, but the ruling is simply not appropriate for a reversible treatment, for which trans youth and their parents will now have to seek a judge’s approval to receive. Furthermore, the ruling flies in the face of the Gillick Competence, that specifically protects the right for under-16s to consent to medical treatment. The upshot of this is that the ruling may further compromise the Gillick Competence’s precedent further down the line, threatening teens’ ability to consent to other treatments, such as access to abortions and sexual health check-ups.

Simply put, the reality of a court-enforced ban on under 16s and their parents being able to consent to receiving this treatment is, as stated by the Good Law foundation, a “morally offensive and nonsensical position”, and its impact may stretch beyond trans youth.

It worth pointing out that there is evidence that the prescription is correlated with positive outcomes for trans people’s mental health, and that scientific evidence suggests that the risk of suicidal ideation can be reduced by gender-affirming treatments such as puberty blockers. Though the ruling was supposedly centred on protecting trans youth from harm, by the same token it risks causing unnecessary suffering and dysphoria for the vast majority who would benefit from treatment in their earlier teenage years. By further restricting access to treatment, rulings such as this are actively harmful, and prioritise a loud minority’s faux-concerns over the interests and needs of the majority of trans people.

Though the direct implications of this case have been covered, we should put this ruling into some broader context; statistics, studies and statements form organisations are persuasive, but allowing the lived experience of trans people to speak is often just as, if not more valuable. Having interviewed three transgender people for this piece, all three specifically mentioned how difficult it had been for them to access medical assistance for their gender dysphoria through the NHS prior to the Bell Vs Tavistock case. Amongst these three interviews, long NHS waiting lists were a recurring theme, but more alarming was the apparent lack of GP training actively blocking access not just to treatment, but to being taken seriously as transgender people. Ed, (22, from Stoke) specifically noted that his two consultations with GPs, at ages 14 and 18, resulted in little progress. His experience of gender was not taken seriously, and his GP’s refusal in the former consultation to even look into treatment routes involving puberty blocking medication, the latter appointment resulting in Ed being “laughed out of the room”. Given that the only NHS treatment centre specifically for trans and non-binary people in the entirety of England is the Tavistock centre in London, Ed’s experience speaks to the issues with seeking gender-related treatments beyond the capital, and demonstrates how few resources are allocated nationwide to treating gender dysphoria.

“It is still a lengthy process, even privately”

Alfie, 19, on access to treatment for gender dysphoria

Alfie (19) and Charlie (25, both from London), both noted that they were actively deterred from seeking NHS services by the extortionate wait times, both opting to go private. Charlie’s quoted wait time for an initial appointment was two and a half years – a queue he is technically still in, and this is not simply a case of an individual getting unlucky. In spite of a government pledge in 2016 to cut wait times to just 18 weeks for an appointment on the NHS, wait times for transgender people remain excessive, averaging at around 18 months, if not even longer. All three of those interviewed were forced to save money to access gender-related healthcare, with varying experiences of private care. Charlie and Alfie both spoke well of their experiences, the former emphasising that his initial assessments were incredibly thorough, and informed consent was a recurring theme of these early appointments. Alfie echoed this experience, but stated that “It is still a lengthy process, even privately”, noting the number of physical tests taken before he was prescribed medication. Alfie also shared that it took a number of appointments to get a gender dysphoria diagnosis, which in the UK is a prerequisite to gender-affirming treatment. For Ed, these psychiatric assessments felt less like precautions and more like him being forced to prove his lived experience wasn’t a “fabrication”, demonstrating how the current system throws up several barrier to treatment for those seeking even entry-level access to care.

Obviously private care is not a feasible alternative to many, both on grounds of cost, and because it does not necessarily ensure better treatment than the NHS. Ed has still experienced a lack of respect and understanding in private care, and has struggled to set up a shared care agreement between private practice and the NHS as a result of a “lack of training and resources to accommodate for such a large portion of the country”. In spite of his successful arrangement of a shared care agreement, Charlie was forced to travel to Poland mid-pandemic for surgery, his hand forced by daily pain from binding for seven years, with no choice but to go abroad, as he faced a year-and-a-half long waiting list for top surgery in the UK. Though the NHS is undoubtedly a consistent beacon of light in an increasingly gloomy Britain, it is failing trans and nonbinary people, and we should not see costly private care as a reasonable alternative. Not all trans people will be able to afford or access private treatment, and the failings of the NHS will only be compounded by the High Court ruling that puts yet another barrier up to accessing gender-related healthcare.

This concrete evidence of long delays and difficulties receiving treatment runs directly counter to the narrative pushed by many so-called ‘Gender Critical’ activists, many of whom rejoiced at the result of the Bell high court case. Their arguments suggest that young trans people are being rushed into irreversible decisions by an overzealous healthcare system, but as has been demonstrated, this is the inverse of reality. Beyond the minority of cases used as evidence for this claim, the reality is an institutional failure to improve treatment and aid for transgender and gender-questioning people across the board. This is no good-faith mistake, but rather constitutes a malicious poisoning of public debate, and as we will see, this anti-trans rhetoric is not a case of a single-issue political movement.

“The TERF bodies that funded her case… don’t care about her. They care about decimating support for trans people just like Thatcher wanted to do to gay people”

Charlie, 25

Links between anti-trans groups and the hard right are well documented, but the specifics of this court case are particularly alarming in this regard. Bell’s legal team features individuals linked with  anti-abortion cases in the US, her solicitor being involved in the Christian conservative movement in the US, in a worrying parallel with the LGB Allicance’s connections to the similarly Christian conservative pressure group the Heritage Foundation. This lends further credence to worries about the implications of the ruling going beyond trans children to impact children’s rights, women’s rights and LGBTQ+ rights more broadly, and the distinctly anti-progressive voices backing the decision should be an indicator of who this victory really serves. Without an understanding of who the LGBTQ+ community is fighting against in the battle for trans rights, cases like Keira Bell’s will continue to be used to hammer back the minor progress we have made over the last few decades, by groups and individuals feigning ‘legitimate concerns’ whilst advancing conservative, regressive agendas.

As Charlie said in our interview, “The TERF [trans exclusionary radical feminist] bodies that funded her case… don’t care about her. They care about decimating support for trans people just like Thatcher wanted to do to gay people”. Just over thirty years from Section 28’s signing into law,  banning the teaching of homosexuality as ‘natural’ in schools, it is hard to deny the that we are repeating uncannily familiar arguments. We should not blindly take the arguments of anti-trans actors at face value; the rhetorical framing of limiting queer rights and representation under the guise of ‘protecting children’ is the very same one made during the gay panic of the 80s and 90s, and if you dig deep enough, it is peddled by the same groups.

Circling back to the case itself, the point of this is not to say Bell’s experience should be ignored. Gender should be something everyone is able to explore, free from judgement and with the proper assistance afforded as much as possible. Bell’s case does not advance this cause, but instead jeopardises vulnerable people’s access to healthcare and advice, and though she may have not felt the advice she received was adequate, there are thousands of transgender and gender nonconforming people experiencing the opposite. For trans people, and for the cause of bodily autonomy, this ruling is a travesty, and it sees young people’s agency taken from themselves and handed to a legal system that, in reality, should have no say over someone’s access to personal healthcare.

In Charlie’s words, “This is a grossly disproportionate ruling that actively intends to harm trans access to appropriate, reasonable, and safe healthcare.”

If you want to donate to the Good Law Project, who are currently appealing the High Court’s decision, you can donate to them here. You can also find a list of UK-based trans rights organisations here, both to support their efforts or to get support for yourself or someone you know.

Harry Higginson

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