On Wednesday (22nd April) it was published in some of the LGBT+ news mediums that Liz Truss had given a statement to the Women’s and Equality Select committee regarding the proposed changes to the Gender Recognition Act. In this she made 3 statements all of which raised concern within the trans community, though one caused serious concerns for transgender individuals all over the UK. She said;-
“Finally, which is not a direct issue concerning the Gender Recognition Act, but is relevant, making sure that the under 18s are protected from decisions that they could make, that are irreversible in the future. I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.”
Essentially spouting a line that gender critical people have been spouting for several years now, in essence saying that they don’t think those under the age of 18 should be allowed medical intervention. Things like puberty blockers to prevent transgender children from having to go through puberty, allowing them to buy more time to decide and to stop them having to go through something that does produce irreversible changes. Also stopping those who are normally 16 or over from being able to access cross sex hormones to allow them to go through puberty that aligns with their gender identity.
As these people think that the children who are coming out as transgender and seeking help for it are not actually transgender. They make claims such as they are just confused people who are taking the transgender path because of external pressure from websites and social media. Or that it’s the parents pushing their children to go down this path because it’s “trendy” and the parents of those children will be seen in a positive light.
But if you talk to any transgender person who is over 18, they will tell you that they did feel the same way as a child as they do as an adult. That their gender identity had developed when they were young, they just didn’t have the words to be able to express it back then or they feared how it would be handled if they had told people.
Though now society is more open about people being transgender, and there is much more information out there about it which allows young people to be able to express how they feel and feel confident to be able to come out to those around them. This being the case we are now seeing transgender people coming out at a younger age, rather than in later life as it had been in the past.
So this statement made by Liz Truss is rather alarming that she is actually considering taking steps to deny those under 18 access to medical treatment and would essentially force all transgender people to have to experience a puberty that conflicts with their gender identity. As someone who had to deal with that, to me forcing people to do it is a horrible thing to do. Because it causes so much mental anguish and does cause irreversible changes and in my honest opinion would be on par with torture due to the mental anguish it would cause.
When I first read this I sat and thought about it for a while and started to think about the legalities of doing such a thing and instantly a whole raft of things popped in to my head about how doing such a thing would clash with several UK laws that already exist.
The first thing that popped in to my head was Gillick competence, which is derived from the House of Lords Case Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, which sets in law the principle in this case that anyone under the age of 16 can provide legal consent for medical treatment if they can demonstrate that they understand the potential consequences of that treatment.
This on its own throws up the first legal issue that the government would have to deal with. A simple ban on anyone under the age of 18 accessing medical treatment specifically for treatments relating to gender identity, would be them saying that they agree with Gilick but not with regards to transgender people.
Which is direct discrimination against transgender people, and as such would allow for any trans person affected by this the ability to take the government to court using two possible methods. Those being either under the Equality Act 2010, which explicitly makes direct discrimination on the grounds of gender identity unlawful or an Article 14 claim (Prohibition of discrimination) alongside either Article 8 (Right to respect for private and family life) or Article 10 (Freedom of expression) using the Human Rights Act 1998.
Now the government in this situation could relatively easily deal with the Equality Act issue, by alongside the bit of legislation that they would need to introduce such a ban include an exemption amendment to the Equality act that says doing this would not be discrimination. That would then go along side all the other exemptions that there are in the Equality Act. Meaning that they would need two parliamentary votes to introduce a ban, and with a majority of 80 that is possible to do.
But the Human Rights Act is different; there is not a list of exemptions that they could simply add too. This would end up having to be decided by judges as if to they would consider such a ban to be discriminatory or not. Potentially going all the way through the British Judicial system and ending up in Strasbourg at the European Court of Human Rights for them to decide on the issue. Meaning that the decision would be made by people who didn’t have a political motive for deciding on it.
Now when it comes to Human Rights Law things get complicated if a government wishes to change or repeal it. As such actions could invoke the Sewel Convention, meaning that not only would the parliament in Westminster need to vote on any changes but the devolved governments of Scotland, Wales and Northern Ireland would have a say in it. With any one of them being able to stop any change.
Then on top of that any changes to the Human Rights Act would directly impact The Good Friday Agreement, and changes to that need both the consent of the British Government and the Irish Government. This would require that part of the Good Friday Agreement to be re-negotiated and then ratified by both nations.
If all that was achieved the government would still be faced with the issue of the European Convention on Human Rights (ECHR) to deal with. As while hypothetically changes to domestic Human Rights legislation is possible the ECHR has supremacy over domestic legislation and thus any decision on banning under 18’s from medical treatment was discriminatory would fall to the judges at the European Court of Human Rights.
Who have already said in L. v. Lithuania, that it is unlawful for governments to put undue restrictions on accessing services for the treatment of transgender people, so a blanket ban on treating under 18’s would do just that.
Therefore if Liz Truss wanted to introduce a ban on medical treatment for under 18’s in the UK she would have to do the following;-
First she would have to amend the Equalities Act to introduce a new exemption making it legal to discriminate against those under 18 in refusing them medical treatment. Then repeal the Human Rights Act, which in turn would trigger the Sewel Convention meaning that she would need to gain consent from the Devolved Parliament’s and hope that they all agree with her. After that she would then be left having to re-negotiate the Good Friday Agreement and get it ratified by both the UK Government and Irish Government. Then take the founding member state of the European Convention on Human Rights out of it so that the European Court of Human Rights couldn’t find against the UK government for discriminating against every transgender person under the age of 18.
Then she could introduce her discriminatory view on how to treat transgender people under the age of 18 in to UK law. Which while it is possible for her to do all off that, it is highly unlikely that there would not be some major opposition to it happening at any one of those steps.
Plus you would have to deal with the views of the public when they realised what you were doing, and the backlash there would be from groups who have won rights using Human Rights Legislation and how those rights could now be lost as a result of what she would have to do just to stop transgender teenagers and children from accessing medical help.