The Court of Appeal has today told the High Court that it got Bell v Tavistock wrong. Its judgment today overturns a judgment that the High Court made in December 2020. This is wonderful news following almost 10 months of huge difficulty.
Mermaids and most importantly the trans young people and their families that we represent are relieved that the Court of Appeal has today (Friday 17 September 2021) overturned the High Court’s decision from December 2020 that effectively barred trans young people from accessing life-saving medical treatment on the NHS unless they had a court order.
The decision today has reinstated the test of Gillick and re-emphasised that it is for the clinician together with the patient and the family to make decisions on a case-by-case basis. It was not for the court to make generalisations about consent at different ages, nor should the court be routinely part of the consent process for puberty blockers.
“The case of Gillick v. West Norfolk and Wisbech Health Authority had decided that it was for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment. It had been said in R (Burke) v. General Medical Council there were great dangers in a court grappling with issues which were divorced from the factual context that required their determination: “the court should not be used as a general advice centre”. The declaration transgressed these principles.” [Summary, para 12]
This is a victory for common sense and young people’s bodily autonomy and how the Tavistock and NHS England respond to the judgment is paramount.
Finally, nearly 10 months on from the judgment, and six months since a High Court case which ruled in favour of parents being able to consent on behalf of their children to start treatment, trans young people who have been left in limbo and shut off from treatment have been told “it was inappropriate for the Divisional Court to provide guidance on when the court should be involved in decisions over whether the child is Gillick competent”. The Court of Appeal also restated that Tavistock’s policies and practices are lawful.
Trans young people deserve the right to make decisions about their own bodies in exactly the same way as all other young people. But while we celebrate today’s decision, it’s also important that we reflect on what has been a traumatising period for many young people and their families.
We call on the NHS to reverse its position as a priority and with urgency to ensure access to healthcare is reinstated for those that have been left stranded for so long. A period in which no new referrals have been made and young people who were about to start treatment were just left anxiously in limbo, unsure what the next steps will be. This was, and is, totally unacceptable. Today the Court of Appeal has made this clear.
The impact of the initial High Court judgment on children and their families has been nothing short of devastating. In a Mermaids survey, published in collaboration with Gendered Intelligence and LGBT Foundation, parents and young people told us that they felt “distraught”, “scared”, “let down” and “devastated” following the High Court judgment. Sadly, today’s decision can’t undo the damage that anguish has caused.
Ahead of the ruling, one parent told us: “I’m keeping everything crossed for later, but part of me feels the damage is done.
“The system that was meant to support [my child] is failing her. The people she had finally opened up to and started to trust, have failed her due to the system around them.
“No one seems to be able to give us any time frames. We are treated with suspicion. I’m treated as neurotic for being panicky and upset and wanting the best possible care and outcome for my child. She’s 13, she’s watching her peers change and progress and she’s praying (and I’m praying) that no more changes happen to her.
“I feel like we did everything we were meant to… We were patient, we listened, we understood the caution they take, we opened up, we followed what they said. [My child] has been persistent and consistent, but I now feel like time is slipping through my fingers and her happiness along with it.”
A GIDS clinician said: “As a Gender Clinician, I am pleased that the court has overturned the initial ruling.
“The past 10 months have been extremely difficult for young people accessing gender services. In many cases we have identified a clinical need for young people to access Blocker Treatment or Gender Affirming Hormones but young people have been denied the opportunity to begin these treatments as NHS England amended the GIDS specification based upon the initial Bell judgment.
“Now that this judgment has been overturned, I hope that the NHS will immediately remove the strict conditions that have limited access to treatments for young people. Families and young people need our support and they need it now.”
Susie Green, Mermaids CEO, said: “We welcome this decision and are pleased that the Court of Appeal has overturned what was a devastating decision that has empowered transphobia in the UK and continues to impact the lives of hundreds of young people.
“Within hours of the initial ruling in December 2020, we saw NHS England change their service specification. Will they do the same now? We need to see definitive and decisive action by the Tavistock and NHS England to address the needs of those young people and their families all over the UK who are in a state of anxiety and distress. We need immediate action to provide urgent access to treatment for all those trans young people who suddenly found treatment options withdrawn without support.
“What are the Tavistock and NHS England going to do to help those young people access care, allowing them to live their lives instead of waiting around in limbo?”
Notes to editors
1. Bell v Tavistock and Portman NHS Health Foundation, a case in which the High Court ruled in December 2020 that adolescents younger than 16 years old were unlikely to be able to give consent to take reversible hormones to delay puberty.
2. You can read the initial decision of the High Court in full here or a summary here.
3. The Court of Appeal decision can be found here.
4. Mermaids is a UK-wide charity (registered charity number 1160575) working to support transgender, non-binary and gender-diverse children, young people, their families and the professionals who support them. Their goal is to create a world where gender-diverse children and young people can be themselves and thrive. The charity’s services include a helpline, web chat and online forums for parents and young people, as well as face to face meet-ups for peer support. They also provide training into organisations and advocate for a fairer society for trans young people.5. Please send any interview requests to [email protected].