Keira Bell and Mrs A vs. Tavistock - Court of Appeal hearing 23 & 24 June 2021

[FindTheTruth]

The appeal hearing will be live streamed this Wednesday 23 & Thursday 24 June, 10:30am

Background

1. The High Court decided in Mrs A and Keira Bell’s favour on 1st December 2020 that puberty blockers and cross-sex hormones are experimental treatments which cannot be given to children in most cases without application to the court. Full details of the original case:

www.transgendertrend.com/keira-bell-high-court-historic-judgment-protect-vulnerable-children/

1. The High Court decided in the case of AB on 26 March 2021 thatPARENTScan consent to their children receiving puberty blocking treatment when their children lack the capacity to consent.

1. Court of Appeal 23 & 24 June 2021 Keira Bell and Mrs A’s legal team is dealing with legal submissions from 7 intervenors who want to see the judgement of the Divisional Court overturned. “A significant task in defending the judgement of the Divisional Court. We are facing very well resourced opponents – the Tavistock being funded by the State and the other intervenors”.

Undersnatch

do you know what is the current situation there, what age child needs to be to consent to an abortion or contraception, without parental consent?

There isn't a specific age. Instead, a concept called Gillick competence is used. The child would need to display the capacity to make a decision about contraception or abortion.

Capacity is decision specific and requires someone to show that they understand and can retain the information needed to make a decision; to weigh up the different options available to them; and to communicate their decision.

So a child might need to show that they understand that not having an abortion would mean going through pregnancy and birth, then having a baby and either taking care of it or having it taken into care; whilst having an abortion would mean taking a drug or surgery to end the pregnancy, and that this would end the baby's life. They would need to come to a decision and explain why they were making that decision.

Assessing capacity can be a bit subjective, but that's the general process.

@PenguindreamsofDraco

The thing that always strikes me - in any other context, a 12 or 13 yo who understands sex and sexual pleasure would (or should) trigger about a million safeguarding klaxons, because, y'know, they shouldn't have anything other than theoretical understanding.

But in this context, it's perfectly fine to assume they truly understand what they're agreeing to and what they're giving up.

That is what was argued the first time. That some 12 year olds could consent to losing sexual function, because some 12 year olds are already having sex (no mention of that being a safeguarding concern) and so know what they're giving up. Oh, and if not then they might be asexual anyway

Some of these kids are so young that they need sex and what orgasms feel like explaining to them (massive again).

These ''professionals'' seem to think that just telling a kid ''x feels like this'' and ''you won't be able to have children'' is good enough. How the hell can a child truly understand how infertility will make them feel as adults? Or not being able to have sexual relationships?

@NecessaryScene

what's special about PB treatment for gender dysphoria compared to other treatments a child can consent to?

The combination of experimental, permanent and not life-saving.

What other treatment is being offered like that?

Exactly this.

Any other treatment offered to a child, or an adult for that matter, involves an explanation of the balance between risk and benefit, so that the patient can understand how that equation looks from a medical perspective, but also think about how that fits into their own circumstances. If the risks are significant, there needs to be a very solid basis for the short-term and long-term benefits to set against that.

The risk-benefit equation for puberty blockers for gender dysphoria is very poorly understood even in the medium term, never mind the long term, so the basis for saying a child or adolescent can understand that is completely lacking, which in turn renders consent meaningless.

It raises the question: what's special about PB treatment for gender dysphoria compared to other treatments a child can consent to? If the Court of Appeal accepts that PBs in most cases lead to treatment by cross-sex hormones, the answer would be quite a lot. Can a child give up all that that entails when, by any sensible measure, they can never really understand what they're giving up? The answer from the appellants would seem to be that what the gender dysphoric child gets from the treatment is so significant, then the question of loss is of less importance

To be clear - I agree with the original judgement but, if I were advising the Tavi team (I am a doctor, not a lawyer, but do a lot of medico-legal work), I would say - how is this different in principle from an abortion? An abortion is permanent, non-life saving (in most cases) and less reversible than PBs. And we know that some women do go on to regret them (I am pro-choice: again, I am not reflecting my own views here)

For the appeal to fail, the AC will need to uphold the original judgement that there is a clear difference in law between PBs and all other treatments, in order to create a rationale for treating PBs in unique way, as regards competency. I think that will be hard. I suspect we will end either in a fudge, where the original judgement is overturned, but with a finding that the Tavi should have a low threshold for going to court before prescribing PBs, and/or with the hot potato being passed to the Supreme Court.

@QuimReaper

Sorry if this is a daft question - is the question of parental consent to puberty blockers in this case specifically limited to their prescription by gender identity clinics? I know they are legitimately used in cases of precocious puberty when of course a child would not be considered gillick competent.

As you say, the other use would be in much younger children. AFAIK, they are not used in any other context in children. They are also used for some cancers, but not cancers that affect children.

An abortion is permanent

It's permanent for the aborted foetus, but not for the mother. Fertility is (normally) not affected, so she can have another child.

If an abortion is permanent, so is a hair cut.

There's an argument that an abortion is preventative of an otherwise permanent, life- changing thing though.

Basically once conception occurs any course of action is permanent.

@NecessaryScene

An abortion is permanent

It's permanent for the aborted foetus, but not for the mother. Fertility is (normally) not affected, so she can have another child.

If an abortion is permanent, so is a hair cut.

There is no point arguing with me about this. I am predicting what the AC may find, not putting my own views.

I can't speak for necessary but I was arguing the point, not arguing you, iyswim lucy

The other use of PB the barrister referred to was for children with intellectual disabilities whereby they are old enough to be going through puberty but delaying it until they have gained some more maturity to be able to deal with it emotionally and psychologically is thought to be beneficial. That's what their expert is going to give evidence on.

I just don't feel that the Court of Appeal will put PB treatment for gender issues into the same category as the other medical treatments discussed. However, if it goes into its own category (sui generis Latin fans!) it's still open for the Court of Appeal to overturn the decision of the High Court.

Is there a different link for this afternoon‘s session?

@CardinalLolzy

I can't speak for necessary but I was arguing the point, not arguing you, iyswim lucy

I get that and I see your point, but I think the counter-argument would be that the same is true for PBs, as they prevent trans kids going through a permanent and harmful puberty of the 'wrong' sex, i.e. their biological sex. Again, not my own view, but my guess at the argument that would be made.

I'd just like to comment on puberty blockers being reversible. From a medical point of view they are reversible in that the drugs stop production of hormones, once you stop taking them hormone production resumes.

This doesn't mean the impact or side effects of having taken the drugs are necessarily reversible.

The understanding of the word "reversible" is a bit different in clinical contexts than in general usage.

It's a bit like at the start of the pandemic doctors saying 80% of Covid-19 cases would be (clinically) mild and therefore not require hospital treatment.

However, I doubt that many people who developed pneumonia but didn't need hospital treatment would consider themselves to have had a mild case of COVID-19.

It requires a finding that PB treatments are sort of life saving, or perhaps clearly life-enhancing in the long term to a significant degree, and the number of false positives are very small, ie there are almost no detransitioners. For the latter it's a shame that the courts are still looking at evidence gathered years ago in respect of small numbers of transsexuals and don't have solid evidence of what's happening now with detransitioners.

It may come down to whether the AC accepts that it is harmful for trans-identifying children to have to go through natural puberty. If the Court accepts that, it will be much easier for the Tavi to argue that PBs are no different in principle from other treatments where there is a trade-off of risk vs benefit.

Thinking about nauticant's pause upthread - I wonder whether any of the allegations in the Sonia Appleby case will be put forward? There are serious allegations that suggest a children's medical service with significant safeguarding issues, homophobia, an openly expressed fear of political activist groups dictating policy and practice, lack of data, lack of research? Just wondering.

The difference between PB and an abortion is a solid evidence base about the risks of the various methods for terminating a pregnancy. No such evidence base exists for PB.

Not even for their use in treating precocious puberty. The evidence base there is assumed to be solid because they've been prescribed for around 20 to 30 years or so (triptorelin was licensed for use in the UK to treat precocious puberty in 2003 and 2005 for Scotland in girls under nine and boys under ten. IIRC, it remains the only PB officially licenced for that purpose in the UK.)

But when you read the research papers into puberty blockers used for precocious puberty, the subject pool is tiny, the methodology questionable and the overall numbers of papers is smaller than one would expect given the experimental nature of the treatment.

I wish the court would be made aware of that fact.

@Itsstartingtorainout

Is there a different link for this afternoon‘s session?

Does this work?

Did the Judge say that he didn't understand what they were trying to do?

Judge:" This court is not here to decide whether this treatment is a good idea or a bad idea."

Court is not deciding whether this treatment is a good or bad idea. A great deal of public interest, so making that clear. This makes me think a lot of their stuff is trying to do exactly that???

@nauticant

Judge:" This court is not here to decide whether this treatment is a good idea or a bad idea."

It's all about informed consent, isn't it?

Whether it's the best treatment in the world, or the worst, it all comes down to whether the children can fully understand what they're consenting to?

I think what the judge was getting at is that judicial reviews are about whether public bodies are acting lawfully or unlawfully and wanted to draw attention back to that.