Well it’s a case I’ve been following right from when it, sort of, launched, and I took quite an interest in it. I first read about it in The Guardian––it sounded a bit like a joke, to be honest. No one—certainly I couldn’t see any legal basis for the court to decide the matter in Keira Bell’s favor.
Sarah Philimore (Family lawyer specialising in care proceedings (where the State seeks to remove children from parents who risk causing significant harm) for The Critic:
'What does the child trans judgement mean?
Those who are invested in being ‘on the right side of history’ might like to reflect on yesterday’s judgement'
concludes:
"The case was not about whether gender dysphoria existed or that it caused serious distress – this was agreed. The issue was rather whether or not children could consent to the treatment on offer.
Perhaps sensing the winds of change, the NHS had already announced a review into such treatment
Consent is the necessary bedrock for all medical intervention. Those who lack capacity to consent – such as small children – must rely upon sensible adults to process the relevant information. Most children over 16 can consent to most things as if they were an adult; for younger children their capacity to consent has to be weighed in light of their age and understanding. A child younger than 16 with the necessary capacity may be ‘Gillick competent’ to make serious decisions. See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
It was clear that Bell, and many children like her, were victims of the prevailing orthodoxy of the ‘path of affirmation’. It is troubling to see the lengths to which some were prepared to go to preserve this path. For example, in 2019 the legal adviser to the Mermaids charity, attempted to erase entirely any distinction between very young children and those with ‘Gillick competence’ by commenting:
….someone’s gender identity, at any age, must be respected. A child identifying as trans, whether it has been submitted this is as a result of harm or not, is identifying as trans and that must be respected throughout proceedings…More often than not, if a child says they are trans, they will be trans.
Marcus Evans, now a psychoanalyst in private practice, formerly served as Consultant Psychotherapist and Associate Clinical Director of Adult and Adolescent Service at the Tavistock. In 2020 he wrote about why he resigned:
Those who advocate an unquestioning “affirmation”-based approach to trans-identified children often will claim that any delay or hesitation in assisting a child’s desired gender transition may cause irreparable psychological harm, and possibly even lead to suicide. They also typically will cite research purporting to prove that a child who transitions can expect higher levels of psychological health and life satisfaction. None of these claims align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.
Despite the climate of fear created by those who insisted on ‘no debate’ supported by threats of sacking and no-platforming, more people found the courage to voice their growing unease. Dr Heather Brunskell Evans, visiting research Fellow at King’s College London has frequently pointed out that any alleged ‘gender identity distress’ is now occurring within a cultural context that has for decades promoted the ‘fantasy’ that it is possible to become the opposite sex and denied any challenge as something inherently ‘hateful’.
To suggest a child under 13 could understand the implications of giving up their fertility is ludicrous
Such context prevents proper or even any discussion of the reality and limitations of surgical and medical interventions – for example, surgery on the female body to simulate a penis cannot create a fully functioning organ, and which is notorious for the high rate of complications.
The court in the Bell case was troubled by the failure of the Tavistock to keep proper data, particularly with regard to the number of its patients who moved from puberty blockers to cross sex hormones, or the high proportion of referred children who were on the autistic spectrum. The court commented, with delicate restraint, that this lack of data was ‘surprising’.
When considering if a child under 16 could consent, the court first examined the nature of the treatment. Given the uncertainty of its short- and long-term consequences, the limited evidence as to its efficacy, or indeed ‘quite what it is seeking to achieve’, it was rightly described as ‘experimental treatment’. Simply giving a child ‘more and more’ information about such experimental treatment, as the Tavistock did, could not enable informed consent. The court held:
The conclusion we have reached is that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with PBs. In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.
Some of those in court who heard the earlier submissions made, reported feeling deeply troubled to hear how the risks of such treatment – which include loss of adult sexual functioning and infertility – were explained to the children seeking it. For the year 2019/20, 26 of the 161 children referred were 13 or younger. The youngest was 10 years old.
For children 16 or over, the situation is different, and they are presumed to have capacity. However, the court said something interesting, touching on the potential for future actions in tort and the spectre of damages, which may operate to concentrate the minds of clinicians a little more effectively when considering the reality of their patient’s consent:
We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.
Perhaps sensing the winds of change, the NHS had already announced a review into such treatment on 22 September, led by Dr Hilary Cass OBE, former President of the Royal College of Paediatrics and Child Health. The review intends to be wide-ranging in scope, looking into several aspects of gender identity services, with a focus on how care can be improved for children and young people. It will also set out workforce recommendations for specialist healthcare professionals and examine the recent rise in the number of children seeking treatment. It sounds wonderful. It is, however, at least a decade late.
Those who are particularly invested in being ‘on the right side of history’ might like to reflect on the judgement yesterday and consider what side of the line they are now on. It is too late for Ms Bell, who will have to live with the consequences of the medical and surgical treatment adults were happy to push upon her. But for the generations of children to come, it is hoped that now we will see decisions made in their best interests, rather than to affirm the ideology of adults or to justify the funding of their charities.
To suggest that any child under 13 could realistically understand the implications for their adult self of giving up their fertility or ability to orgasm is ludicrous. The judgment is an extremely welcome corrective to what for years has appeared to be a wholesale abnegation of adult responsibilities towards children. No doubt many responsible believed they were doing the right thing; to promote inclusivity and diversity and ‘being kind’.
I hope they will read this judgment with no small sense of shame and a resolution to do better. When what is under discussion is the lives and bodies of our children, then we must have debate. "
thecritic.co.uk/what-does-the-child-trans-judgement-mean/
glad it's been archived.
