On 17th September 2021, the Court of Appeal handed down its judgment in the case of Bell v Tavistock. It rejected both the guidance and declarations with regard to medical transition offered by the High Court, as going beyond the bounds of what was permissible in judicial review and making findings of fact on controversial issues without being properly able to test the evidence. The decision as to whether a child under 16 could offer valid consent to medical transition was returned to the clinician and the patient and judicial declarations were restored to their proper place as mere observations.
There was great jubilation in some quarters—Pink News calling this a reversal of a “cruel decision” that actively harmed “trans kids” by removing “life saving” treatment from them. Others were not so happy—Andrew Tettenborn pointing out that we are now in the very uneasy situation of prohibiting tattoos for anyone under 18 with the Tattooing of Minors Act 1969 but allowing questions about future sterility and loss of sexual function to be decided by 12-year-olds who are vanishingly unlikely to have any coherent opinion about what such loss would mean for their future selves.
The general environment that “affirms” transition as a positive good without further investigation, the poor record-keeping of the Tavistock and their apparent complete lack of curiosity about why their client base had suddenly shifted to be mostly teenage girls, many with autism, does make me uneasy that the Court of Appeal handed back such decision making to doctors and psychologists, trusting the rigour and competence of their regulators and ethical standards. The barrister for intervenors Transgender Trend had made compelling points about the risks posed by such unregulated outfits as Gender GP, but these were not reflected in the judgment.
So some grave disappointments here. But “winning” and “losing” are easy concepts to apply to a football match; less so to a court decision. Some decisions are more interesting for the reactions they provoke than the actual meat of the judgment and I think this is one.
Judicial review is an application to the court to challenge the lawfulness of a decision or failure to make a decision by a public body. It is a useful weapon against overreach or irrationality by the State. What it does not do however is make any judgment on the merits of the issue that is being decided, but determines the reasonableness or otherwise of the process by which the decision was made. It is not the arena for disputed or controversial evidence to be determined. The High Court claimed they had not fallen into that trap; the Court of Appeal disagreed. The case can be on one level be analysed simply as a re-statement of the limitations of a judicial review and a corrective of the High Court’s understandable overreach when faced with such worrying information about the consequences of medical transition for children.
But it is the strong and polarised reactions to the decision that indicate its true legacy and impact. The conversation is finally being opened up. The recent award of £20K to Sonia Appleby the Safeguarding Lead at the Tavistock, who was prevented from doing her job over spurious allegations of “transphobia,” also demonstrates that these issues are well within the public discourse and the strategy of “no debate” around trans issues has been a resounding failure.
The Court of Appeal certainly offer no endorsement of medical transition for children, but rather made sure to point out at the end of the judgment just how difficult and controversial these issues are, and just how important it is for clinicians to properly assess children’s ability to consent. As numerous commentators pointed out on social media, this looks very much like a green light for actions in medical negligence. What the Court of Appeal could not do, possibly doctors’ insurance companies will.
It was depressing after the judgment, when I discussed a forthcoming webinar hosted by the Evidence Based Social Work Alliance on 30th September, to discuss all these issues, to be met with accusations that I was acting “unethically” and trying to “harm trans kids.” But it was also very reassuring to think how far we have come in such a relatively short space of time—two years ago, such accusations might have caused a real fear that they would be taken seriously. But thanks to Keira Bell forcing these issues into discussion in the courtroom and around the world, these threats have lost almost all of their potency. These are matters of serious public interest, involving the welfare of often very vulnerable children and not only do we have the right to talk about this, but I think we also have a moral obligation.
So where next? We must continue the public discussions, on social media, via webinars and blogs, with our MPs and our professional colleagues. It is urgent to restore debate to its normal footing so that decisions about the welfare of children are made on the best evidence available, not to pander to some adult wish for validation via a political ideology. We keep our fingers crossed that the Cass Review will produce sound evidence-based recommendations in order to secure the best treatment pathway for children suffering “gender incongruence.”
Keira Bell and her legal team have announced they want to take this to Supreme Court. I am not confident they will get permission, but I would be delighted if they did—this would simply increase the worldwide attention that these proceedings have already enjoyed and further cement what should be an entirely uncontroversial position: Not only can we talk about these things, we absolutely must. If their appeal, however, is based on any attempt to attack the concept of “Gillick competence” then I think that is misguided and likely to fail. All “Gillick competence” is directed towards is the necessary efforts to balance paternalism against the growing autonomy of children who have a right to make decisions about their own bodies, so long as they can understand what they are doing. It is not Gillick that has failed here—it is the professionals who paid it mere lip service and failed to properly assess if their child patients were in reality competent.
I hope when looking back in years to come that the real victory from these proceedings will be seen to have been for rational and transparent public debate, in order to secure for every child the best possible chance of a childhood from which they will not one day have to recover.