The Legal Exception for Greenlighting Medical Experimentation

Children Can’t Consent to This

There is much to make us very worried about how issues of “sex” and “gender” are defined and protected by law but I am going to focus here on what worries me the most; the impact on children and how the current desperate focus on how much we support diversity and inclusivity, carries with it an ignorant disregard for the actual legal status of children and their ability to understand and consent to medical treatment.

The “age and understanding” of children is a crucial component of the analysis of what meets their welfare needs and is the heart of the Children Act 1989 as set out in the “welfare checklist” at para 1 (3). Children over the age of 16 are presumed to be able to give consent to medical treatment as if they were an adult. Younger children must be assessed as “Gillick competent” to have the capacity to make decisions about serious issues, This test is taken from a case where children under 16 were held to have the capacity to engage with advice and treatment about contraception and their parents did not have to be automatically informed.

Three legal cases indicate this direction of travel. 

J (A Minor), Re [2016] EWHC 2430 (Fam) (21 October 2016) involved a mother who claimed that her four-year-old son “disdained his penis” and wanted to be a girl. She could provide no evidence of this but was enthusiastically supported at court by Mermaids. The child was removed from her care and went to live with his father, where he played happily as a little boy. The Judge was highly critical of those professionals who had been swept up in a “prevailing and false” orthodoxy around the child’s alleged transition and that this was a product of both “naivety and professional arrogance.”

However, by 2019 the landscape had shifted rather dramatically in the case of Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30. In this case, foster carers had two unrelated children in their care who apparently “decided” they wanted to transition—the youngest aged 4 years old. The focus of these proceedings was very different to re J as the local authority were applying to withdraw care proceedings, so were arguing that there were now no longer concerns about the foster carer’s parenting of their own children. However, it's highly alarming to see how the Judge framed this issue of transitioning preschoolers:

Notwithstanding even the Guardian’s caution in respect of the openness of [the foster carers] to the possibility of an alteration in the children’s attitude to their gender identity, I conclude that Dr Pasterski’s evidence demonstrates that it is obvious that neither of these grounds would meet the threshold. Taken together with the panoramic evidence of the child-focused approach of [the foster carers] it is overwhelmingly obvious that neither H nor R have suffered or are at risk of suffering significant emotional harm arising from their complete social transition into females occurring at a very young age. The evidence demonstrates to the contrary, this was likely to minimise any harm or risk of harm. The evidence does not support the contention that it was actively encouraged rather than appropriately supported.

There appeared to be no questioning of the lack of evidence to support an assertion that it is “overwhelmingly obvious’ that a four-year-old will experience no harm from a decision to transition from male to female at such a young age and no critical appraisal of just how unlikely it is to have two unrelated children in the same family, both apparently expressing a wish to change sex.

The chickens of consent then came home to roost in the case of Bell v Tavistock where Keira Bell argued successfully that the Tavistock had acted unlawfully in setting her down a path of affirmation of her transition when she was aged 16; a path which ended in surgery to remove her breasts and permanent changes to her body from cross-sex hormones. 

What the submissions and judgment in this case revealed were terrifying. The Tavistock were not able to present any evidence to show that the Gillick competence of their younger patients was explored or to explain the staggering rise in the number of referrals of teenage girls. The High Court found that puberty blockers (PB) should be seen as a single treatment along with cross-sex hormones (CSH) as the evidence showed that close to 100% of children prescribed puberty blockers went on to take CSH. 

Given the lack of evidence as to the efficacy of this as a treatment for gender dysphoria, together with its very serious lifelong impacts (loss of sexual function and fertility, diminished bone density and risk of neurological harm) and serious doubts as to how many of the children referred were actually gender dysphoric, the High Court held that it was vanishingly unlikely any child under 16 could be deemed “Gillick competent” to give consent to this. Further decisions about such treatment ought to be referred to the court for a best interests decision. 

Permission was given for this decision to be appealed and the Court of Appeal will consider this by the end of June. There has been a rush of intervenors and international attention. The UK does seem alone in being willing to consider the ability of young children to consent to such treatment, although Sweden’s Karolinska Hospital recently announced it would stop prescribing puberty blockers to the under 16s. Conversely, Australia deems both PB and CSH to be “therapeutic treatment” and is slow to interfere with a child’s expressed wish to embark on the “affirmation path”.

So how on earth have we ended up here?

There appears to be a troubling focus on removing any age restrictions for when a child’s decision that they are “trans” must be recognised and celebrated. This echoes the ‘Yogyakarta principles,’ which were drawn up by a lobby group and have no legal force, yet alarmingly are treated by many as if they do; including the Children’s Commissioner for Scotland. 

The charity Mermaids wrote in 2019:

….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings… More often than not, if a child says they are trans, they will be trans.

The obvious problem with this is that a child of four years of age bears no resemblance to a child of 14 years. They are different in every single domain; intellectually, emotionally, physically and sexually. What motivates anyone to ignore this obvious truth? Why do they wish to assert that the wishes and feelings of a four-year-old carry the same currency as do those of a teenager? Any parent who adopted this strategy in any other aspect of parenting would likely find themselves subject to care proceedings for causing their child significant harm. 

But this approach appears to have taken deep roots. The father of a four-year-old “trans boy” recently appeared in the Daily Mail to complain about people not taking his child’s “decision” to transition seriously and claiming that the child had given him “permission” to plaster their photographs and sensitive personal data on the world wide web. 

If this father genuinely believes that a four-year-old has the capacity to consent to this then there is sadly little wonder that the father also thinks a four-year-old can make a settled decision to “transition”. Photographs of the child give possibly another clue; when presenting as a “girl” the child is put in pretty dresses and impractical shoes. Little wonder then perhaps that she saw how her twin brother was dressing and preferred the obvious freedom her parents afforded to a male child. The issue here appears to be the rigid gender stereotyping of the parents, not a wish from a four-year-old to change sex. 

How will any four-year-old, set on this path which is trumpeted to millions of Daily Mail readers worldwide, ever be able to step off it? Why is it that “transition” is the only area where preschool children are apparently capable of making decisions that will impact on the rest of their lives? 

I wish for all children the ability to grow up from childhood they don’t have to recover from. It is far better to help and support children as they grow than try and fix a broken and traumatised adult. I accept that there are children who are “gender dysphoric” and they may realise this at a very young age. PB and CSH may well be the best treatment for them—certainly some adults claim benefits. But before adopting this as a treatment path for any child, but there has to be a much clearer evidence base, including examination of those adults who detransistioned, before we can claim any confidence in this treatment method. The numbers of such children will be very low indeed. Genuine "gender dysphoria" is rare—but confusion and distress for children growing up, sadly much more common. Effective support and treatment for this are highly unlikely to involve suppression of puberty or a double mastectomy. The majority of children who express gender non conforming views but who are left to experience puberty, then desist from any further desire to “change sex”—between 73% and 88% of children.

As the judgment in Bell makes clear, the evidence to suggest that medical transition for children is a ‘good thing’ just isn’t there. And unless and until that evidence is there, it is a manifestation of a harmful arrogance to insist that a very young child who expresses a wish to “change sex” is necessarily revealing an “authentic self” and that this “authenticity” requires lifelong medication and surgery to affirm it. It is alarming to note that Professor Shelia Jeffreys was writing about this in 2012 and yet it took another 8 years for the UK courts to be alerted.

That some parents engage in uncritical support of childhood transition is bad enough—I hope very much that the courts will stand firm against it, unless and until the evidence is clear that this is something that promotes the welfare of children.