By Jenson Davenport
“The fear is particularly prevalent when public figures – politicians, high profile newspaper columnists etc. – demonise trans people in print or on air; it makes the fear more pronounced because you worry someone’s going to act on it.” Those are the words of a respondent for the LGBT+ anti-violence charity Galop. A report conducted by the charity found that in the last year alone, a quarter of trans people had experienced or been threatened with physical assault, with nearly one in five having experienced or been threatened with sexual assault1. It was found that 7 in 10 felt that the police could not help them. This article will take a journey down the path of legislative protection in the UK – or lack thereof – to eventually arrive at the decision in Bell v Tavistock2, regarding puberty blockers for those under the age of 18 that wish to start their transitioning process. It is to be argued that the decision made in Bell is wrong, and shall only cause more damage to the transgender community.
The problems with the Gender Recognition Act 2004
The Gender Recognition Act 2004 marked a landmark development in the legal rights of transgender people, granting them full legal recognition. Through the Act, it is possible for transgender people to change their legal gender, through the issuing of a Gender Recognition Certificate. From a 2020 report published by the European Commission, the procedure established by the Act has been ranked as one of the worst in Europe as a result of its “intrusive medical requirements.”3 This is due to the extensive “evidence” that a person hoping to be legally recognised must present to a Gender Recognition Panel, including a medical diagnosis of gender dysphoria as well as proof that said person has been living in their preferred gender for at least two years. This stance on transgender legal recognition is incredibly problematic, placing the applicant in the position to “prove” their gender to a panel of strangers.
In response to the Gender Recognition Act public consultation conducted in 20184, consisting of over 100,000 respondents, nearly two thirds called for the requirement of a gender dysphoria diagnosis to be removed, with 80.3% supporting the removal of the requirement for a medical report detailing all treatment. Responding to the consultation, the government concluded that “the balance struck in this legislation is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex.” 5This means that the process is not to be de-medicalised and self-determination will not be introduced. It also does extend legal recognition to non-binary people and transgender people under the age of 18.
Cara English, head of public engagement at trans-led charity Gendered Intelligence, argues that the government’s response to the question of reform has been “really lacklustre… it hasn’t fully addressed the things that need to change… it has offered us small piecemeal concessions to try to placate us.” The procedure under the Act is still said to be inaccessible for a large proportion of the trans population who are “historically excluded from work through wider societal exclusion.”
The merits of the Equality Act 2010
The Equality Act 2010 aims to protect people against discrimination, harassment or victimisation in employment, based on nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It is Section 7 of the Act which concerns “gender reassignment”, concerning a person “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” Through the Act, discrimination in both the workplace and wider society on the basis of gender reassignment is prohibited. The protection for transgender people is clear, unequivocal, and undisputable. But what of non-binary people? Well, in a landmark decision in September 2020 in the case of Taylor v Jaguar Land Rover6, the Employment Tribunal ruled that both non-binary and gender fluid people are included within the realms of the Act’s protection. This was, of course, a logical step given the objectives of the Act, but to have judicial ruling explicitly recognise and protect the existence of non-binary and gender fluid people is a monumental step in English law. One would hope this judicial recognition may translate to the Gender Recognition Act, of which non-binary people are currently excluded from.
The decision in Bell v Tavistock
This recent case, decided in December 2020, concerned a claim for judicial review of an NHS practice that was prescribing puberty blocking drugs to people under the age of 18 that experienced gender dysphoria at the Gender Identity Development Service (GIDS). The issue within the case was whether a child would be rendered competent to give informed consent to the treatment, otherwise known in medical law as Gillick7 consent.
As stated in the Bell judgement, “a child under 16 may only consent… where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment… and its potential life changing consequences for a child…” 8The court concluded however that it was “highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.” 9
The consequence of this decision is that puberty blockers are unlikely to be available to those under 16 without court authorisation. In practice though, it is likely to be impossible for a medical practice to satisfy the court and demonstrate that a person under 16 had sufficient understanding of the issues and consequences to allow them to give “informed consent.” The immediate aftermath of the decision is that the NHS has suspended new referrals for puberty blockers and cross-sec hormones for the under 16s, which would only be permitted where a court specifically authorises it.
Susie Green, CEO of Mermaids, a charity providing support for transgender or non-gender-conforming children, argues that “whatever our beliefs, most of us can agree that it is the young people themselves, together with their parents and their doctor, who best understand their needs.”10 Amnesty International UK and Liberty have issued a joint statement expressing disappointment in the judgement “not only for what this means for health and well-being of trans young people, but the wider implications this will have on the rights of children and young people of all genders, particularly on consent and bodily autonomy.”11
Leave to appeal against the High Court’s decision was granted in January 2021. In this time, it is asked that the court reconsiders its decision. A person suffering from gender dysphoria understands how they feel and interact with their own body better than anybody. It is worth noting that there are both medical and psychological assessments provided before the medical practice grants the applicant with the puberty blockers that are asked for. A lot is still unknown about the long-term effects of puberty blockers, it is likely this uncertainty which erred the courts towards their decision. It is likely that ignorance of the impact of gender dysphoria on a child under the age of 16 largely made up the court’s rationale within this case. According to Stonewall, 48% of trans people in Britain have attempted to commit suicide at least once; 54% reported that they have been told by their GP that they don’t know enough about trans-related care to provide it.12 This judgement further embeds that narrative, when trans people are suffering.
Despite its legislative steps towards equality and protecting transgender individuals, it is clear that English law still does not understand the nuances within transgender identity. Bell v Tavistock illustrates this. This may be a step in the wrong direction. It is important that English law is able to maintain a balance between the rights and protection of transgender people and also provide insight to the inherent risks and consequences of undertaking medical treatment. Holding that puberty blockers do not pass Gillick competence however is not the right decision. NHS practices can offer sufficient guidance, expert therapy and support for children that wish to begin transitioning. It is hoped that this decision will be reversed on appeal.
-  EWHC 3274 (Admin)
-  AC 112
- https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf at paragraph 126
- https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf at paragraph 151