The English Court of Appeal partially overturned the judgement that had found in favour of the young detransitioner Keira Bell (here her story) against the Tavistock Clinic, which had rushed her into puberty blocker therapy when she was 16.
With a pilatesque judgment and merely formalistic, the Court threw the ball back to the doctorsIt is up to them, and not to the courts, to decide whether a minor can have access to this 'therapy' with hormone blockers. Doctors and not judges must take responsibility for deciding. whether or not the child has what is known as the Gillick Competence, or the maturity to assess the consequences of hormone treatments, which are irreversible.
Transactivists welcomed the ruling, but the time of easy transitions for minors is over anyway. As we are seeing all over the world (read here) in the face of the increasing number of gender non-conforming former children who, once adults, regret the irreversible changes caused by puberty blockers, especially Faced with the risk of lawsuits for damages -follow the money- more and more doctors and clinics are adopting a principle of caution. Thus it will be increasingly difficult for a child under 16 to be experimentally initiated into transition according to the 'affirmation only' principle - in essence, blockers are not denied to anyone-. In short, the number of children treated with blockers will in any case decrease.
The era of acting in a derelict manner to follow an ideology and not correct medical practice is over. Keira Bell, who asked to be allowed to address the Supreme Court, commented: "My case has opened a global debate, although much remains to be done. It is a deeply disturbing fantasy that a doctor could believe that a 10-year-old child could consent to the loss of his or her own fertility".
The following is the comment from the website Transgendertrend after the judgment of the Court of Appeal.
We are disconcerted by the decision in which the Court of Appeal today upheld Tavistock and Portman NHS Foundation Trust's appeal against the first instance decision of the Court of Justice in London in the case of Bell and Mrs A v Tavistock.
The appeal was upheld on the basis that the Court of First Instance did not rule that the use of puberty blockers to treat gender dysphoria was unlawful, and that the ruling and directions issued by the Court of First Instance related to contested facts, expert evidence and medical opinions that could not be examined and assessed in court proceedings.
The Court of Appeal ruled that the principles expressed in the GILLICK case are based on medical assessments, and it is not for the court to decide on the capacity of children under 16 to give valid consent to medical treatment.
Underlying the Tavistock appeal is the argument that, in its judgment, the Court of First Instance relied on the principles set out in the Gillick case, which state that children under the age of 16 are capable of making valid decisions if deemed competent to do so by their treating doctor after a specific individual assessment.
Tavistock had objected that the Court '.trespassed into the area of decision-making reserved for doctors, patients and their parents, where it had not previously ventured.".
In essence, the Court of Appeal held that "the Court of First Instance ruled on an improper restriction on the use of the Gillick competency tests"
The appeal judges rejected the idea that the use of puberty blockers for gender dysphoria is a borderline case.
In paragraph 76 of the judgment it is even stated that consent to puberty blockers is no different to consent to contraception:
"Nothing about the nature or implications of treatment with puberty blockers allows a real distinction to be made between the assessment of contraception in Gillick and puberty blockers in this case, bearing in mind that, when the Gillick case was decided 35 years ago, the issues raised in relation to contraception for under-16s were highly controversial in a way that is difficult to imagine today."
On the whole, the judgement, while paying lip service to the fact that there are widespread opposing views on the issue, takes Tavistock's evidence at face value without elaborating.
For example: the assertion that only 16% of children are subsequently treated with puberty blockers when in earlier testimony Dr Polly Carmichael suggested that the percentage overall is rather 41-45%; the assertion that only 55% of children treated with puberty blockers then go on to treatment with hormones of the opposite sex when on the same GIDS site the percentage indicated is 98%; and the assertion that "the primary purpose of puberty blockers was to give the patient time to reflect on his or her gender identity" e "treatment with puberty blockers was separated from subsequent treatment with opposite-sex hormones"when the Health Research Authority, in its reviews of Tavistock's Early Intervention studies, determined:
"Confusion would have been reduced if the description of the purpose of the treatment had made it clear that it was offered specifically to children who demonstrated strong and persistent gender dysphoria at an early stage of puberty, so that the suppression of puberty itself would allow subsequent treatment with hormones of the opposite sex to avoid resorting to surgery to change or otherwise mask the undesirable physical effects of puberty in the birth gender."
Although much emphasis has been placed on the consideration that it is not the role of the courts to evaluate medical evidence, it is inevitable that the courts will be influenced by the evidence made available to them.
In the case of puberty blockers, the evidence (provided by Tavistock) is weak, the ethical considerations involved very serious, and in any case Tavistock has never made available alternative, less invasive treatments. Not even the supervisory bodies have ever questioned the ideological basis of the 'affirmative' approach.
The first instance judgment in Bell & Mrs A v Tavistock is quoted extensively from the Court of Appeal's decision and none of its points are contested except from a purely legal/formal point of view.
All 'concerns' still exist.
The Court of Appeal states:
"Doctors will inevitably have to take great care before prescribing treatment to a child, and be wise enough to ensure that the consent obtained from both child and parents has been preceded by adequate information about the advantages and disadvantages of the proposed treatment, in the light of evolving research, and a clear 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 has made clear, doctors may still be subject to disciplinary and civil action when problems arise in individual cases."
The original court ruling and subsequent appeal brought the issue of puberty prevention in children into the public eye, and the attention of the medical and political world.
Keira Bell opened the confrontation.
Authorisation for further appeal to the Supreme Court will be sought.
(translation by La Crissy)
here the original article
here the High Court ruling