Not all superheroes wear capes

Keira's case changes the landscape forever

There was nothing wrong with my body, I was just lost and without proper support. Transition gave me the facility to hide from myself even more than before. It was a temporary fix, if that.

Keira Bell

For Tribuna Feminista

Today, the Court of Appeal has upheld the appeal of the Tavistock and Portman NHS Foundation Trust against the decision of the Divisional Court in Bell & Mrs A v Tavistock

Initially, this appears to be a blow. But a closer inspection reveals a very different picture.

The court has NOT passed judgement on whether a child can consent to puberty blockers, or at what age. The court has ruled on who decides if a child is Gillick competent, not if a child is Gillick-competent. Gillick competency can only be ruled by a clinician. This is a point of legal abstraction, not a point of consent itself.

“At the heart of Tavistock’s appeal is the submission that, in making the declaration, the Divisional Court departed from Gillick, which had established that children under 16 could make their own decisions if assessed individually as competent to do so by their treating clinician. Tavistock submits that the court “intruded into the realm of decisions agreed upon by doctors, patients and their parents, where the court had not previously gone.”

The ruling goes further:

“Clinicians will inevitably take great care before recommending treatment to a child and be astute to ensure that the consent obtained from both child and parents is properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment. Great care is needed to ensure that the necessary consents are properly obtained. As Gillick itself made clear, clinicians will be alive to the possibility of regulatory or civil action where, in individual cases, the issue can be tested.”

In this regards, Keira Bell and Mrs A have still secured a significant win. It goes some way in tightening safeguarding for children, for young people and their care givers and it is a win for trans health care. This is a clear caution against a one size fits all pathway.

This ruling is also an acknowledgement that those expressing a trans identity deserve the same standard of evidence-based medicine as the rest of the population. This is a return to first principles; do no harm.

Concerns have been flagged by some activists that the original ruling undermined Gillick competence in regards to girls and young women accessing abortion and contraception. These fears are not realised, and have been widely debunked (Link). Yesterday's ruling that 12 year old children can consent to vaccines, for example, and today's ruling clearly contradict this position.

Gillick guidelines relate to both the age of the child and the complexity of the treatment, including the severity of known and unknown outcomes. This clearly differentiates it from issues around reproductive rights - where the cost/benefit is clearly known.

It is our view that the activist voices misrepresenting the original case re Gillick competence & Fraser guidelines, have only served to add more confusion and fear around the previous ruling. In doing so, jeopardising the welfare of young people by misrepresenting concerns around consent and the nature of potential medical pathways.

What still remains after today's ruling is the light shone on the concerning practices at the Tavistock. Including, but not limited to: the lack of longitudinal care and longitudinal data, the lack of data on cross-sex hormones, transitoning of gay children, the lack of curiosity about the correlation between ASD, trauma and transition. These concerns go back 15 years.

The worry with today's ruling is that prescribing puberty blockers will not go before a judge.

In a perfect world we would agree, Gillick competency should ideally be a clinical decision. However, In the context of the CASS review, the NICE review of puberty blockers, Dr Sonia Appleby V Tavistock, rising numbers of de-transitioners and reports of malpractice, removing this added layer of safeguarding is far from reassuring.

The history of medicine is, after all, blighted by malpractice and experimentation. From J Marion Simms through to the mesh scandal.

Reassuringly, the ruling acknowledges this. It refers specifically to a patient's right to litigation. This is cold comfort to those whose lives and health has been damaged. Most, I'm sure, would prefer to remain fertile rather than be compensated down the line.

'clinicians will be alive to the possibility of regulatory or civil action'

Considering the Court's concern around practices at GIDS, many of their professionals must be feeling uneasy. One whistleblower raised concerns with Dr Polly Carmichael, asking if she would be vulnerable to legal action. Carmichael's response was not to worry, it would be the NHS that is liable. Not so reassuring.

In Mandu Reid's recent speech, she referred to her concern around the sharp increase in girls being referred to GIDS.

Let's look at the stats.

In 2018/19 , 624 boys and 1,740 girls were referred. This represents a breathtaking 1,460% increase in referrals of boys and a staggering 5,337% increase in girls in less than a decade. The youngest child referred was 3.

Transgender Trend

To date, it seems that Mandu is the only leader of a political party willing to raise this issue.

In her speech last month, Mandu's words were moving: