The Court of Appeal has ruled that it was “appropriate” for it to “keep an eye” on the case of a 16-year-old seeking to take hormones in order to transition to the opposite gender, so as to make sure the treatment is in the teenager’s best interest.
The case is murky, and has been deeply distressing for everyone involved. It’s been running for more than two years and involves “Q” – a 16-year-old who was born female, but who began identifying as male in 2020, when they were 12. Q wishes to transition to be a man. Q’s parents disagree on whether they should: the mother (referred to as “O” in legal proceedings) does not want Q to undertake any irreversible treatment before they’re an adult (aged 18), while the father, known as “P”, supports Q’s wishes. The court describes the relationship between the parents, who are divorced, as “acrimonious”. In a further complication, Q is now in relationship with the child of P’s new partner, who – like Q – was born female but identifies as male and is transitioning.
The case is complex, but judgement handed down on 19 December is hugely significant. It’s highly unusual for the judiciary to override the wishes of someone aged 16 or over, who is deemed capable of granting consent to medical treatment, and to have the capacity to do so. O’s solicitor, Paul Conrathe, told the New Statesman that, until now, “the court’s consideration of medical disputes… has mainly involved end-of-life decisions or young people with very poor mental health”. Yet in the light of this judgement, “It can no longer be assumed that just because a young person is 16 years old, intelligent and in good health their decision to proceed with cross-sex hormones is the end of the matter.”
Explaining the decision, Master of the Rolls, Geoffrey Vos, said that the regulatory landscape surrounding the medical transition of under-18s had “changed considerably” since 2020, when Keira Bell took the Tavistock and Portman NHS Foundation Trust to court, seeking to end the prescription of puberty blockers to under 18s. She had argued that children were unable to consent to the treatment; the High Court initially agreed that it was “unlikely” those aged under 16 could. Bell’s initial victory was overturned by the Court of Appeal in 2021, which argued that it was for doctors, not the courts, to make these important decisions. Since then, the independent Cass Review of NHS children’s gender services, led by the paediatrician Dr Hilary Cass, has concluded that the evidence base underpinning the use of puberty blockers is “remarkably weak”, and on 11 December the Health Secretary, Wes Streeting, announced an indefinite ban on the use of puberty blockers to treat young people with gender-related distress.
Two of the three judges presiding over the case of Q – Vos and Eleanor King – were involved in overturning the Bell decision. Yet now, Vos acknowledged, the judge who had originally heard Q’s case did not “place enough weight on the rapidly changing regulatory environment and the situation of private providers… in the light of the recommendations made by the Cass Review”.
While the use of puberty blockers in gender-distressed children has tended to dominate discussion in this area of healthcare, Q’s case concerned the far less scrutinised potential risks and benefits of hormones taken by young people under 18 who are seeking to transition: testosterone for those born female who want to masculinise their bodies; oestrogen for males who wish to feminise. Just as with puberty blockers, in 2021 the National Institute for Health and Care Excellence (NICE) rated the quality of the evidence relating their use in children as “very low”. “Any potential benefits of gender-affirming hormones must be weighed against the largely unknown long-term safety profile of these treatments in children and adolescents with gender dysphoria,” the NICE review concluded. And, just as with puberty blockers, a systematic evidence review conducted to help inform the Cass Review found that, “There is a lack of high-quality research assessing the outcomes of hormone interventions in adolescents with gender dysphoria/incongruence.” While there was some evidence that suggested hormone treatment “may improve psychological health”, “robust research with long-term follow-up is needed”, the evidence review concluded. Central to the case of Q are Cass’s recommendations, emphasised in the Cass Review, that “extreme caution” is exercised when considering the use of hormones for those under the age of 18, and that “every case… should be discussed at a national multi-disciplinary team (MDT) hosted by the National Provider Collaborative [a partnership between a number of NHS trusts that works to improve services]”.
The court heard how this latter requirement was unable to be met by private providers of hormones generally, and in this case by Gender Plus – a private clinic owned and run mostly by staff who once worked at the now closed Gender Identity Development Service (Gids) at London’s Tavistock and Portman NHS Foundation Trust. Q is currently undergoing a six-month assessment by Gender Plus, which may lead to a referral to the service’s hormone clinic for treatment with testosterone. “It seems most likely that no question of competence or capacity will arise,” Vos explained in the judgement, “but I was struck by the [original] judge’s statement… to the effect that she was ‘not sure [that she shared] the Guardian’s confidence that [the young person was] able to consider all the evidence about gender dysphoria and the treatment available in a balanced and unbiased way’. In those circumstances, I think that the judge ought to have accorded significantly more weight to the possibility of genuine future disagreement, the rapidly changing regulatory environment and the fact that the services provided by private hormone clinics seem already to be in a somewhat different position from the same services provided by the NHS.”
The result of this ruling is that it is leaves open the possibility that Q’s wish for treatment with cross-sex hormones could be overruled by the court. Vos insisted that he could not “predict the future” but nevertheless thought that there was “sufficient current doubt as to what is proper and appropriate in this area that it would be a wiser course to keep the proceedings alive at least until Gender Plus’s assessment of the young person has been completed and can be considered, if necessary, by the court”. It was acknowledged that Q would be disappointed by the outcome, but Vos sought to reassure them: “we have pre-judged nothing. I am just keen that all circumstances can be taken into account in the event that it becomes necessary in the future for this court to consider where his best interests lie.”
Just as with the Bell vs Tavistock case, the court did not regard the administration of hormone treatment as being in a special legal category. “In this case, the court was simply being asked to keep open the possibility that it would, in the future, need to decide whether hormone treatment, to which the young person had consented, was or was not in his best interests.”
Commenting on the ruling, Q’s mother said that the judgement had left her “feeling hopeful”. “I am so pleased that the court has carefully considered the evidence and made the best possible decision for her [Q’s] safety, and for the safety of all children who are struggling with their identity as they go through puberty. The last two years have been painful, exhausting and terrifying. I miss my daughter horribly and can only hope that, one day, she will realise how very hard her mum has worked to keep her safe.”
Dr Aidan Kelly, director at Gender Plus, told the BBC that “while he could not comment on specific cases, all young people assessed as appropriate for gender-affirming hormones should be considered by a panel of clinicians who are not treating them”. While the clinic can’t access the NHS National Provider Collaborative panel, Gender Plus says that all recommendations it makes for hormone treatment are reviewed by its own multi-disciplinary team.
The court has now adjourned Q’s case. It will be involved again if necessary.
Note: The court judgement refers to Q using male pronouns. O refers to Q using female pronouns. We have have preserved the original usages in quoted passages but have used the pronouns they/their in referring to Q throughout
[See also: The BMA turns away from rejecting the Cass Report]
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