On 1 December 2020, the High Court ruled that children under 16 should not receive controversial puberty blockers because they are very unlikely to understand the risks.
The case was brought by Keira Bell, a 23-year-old woman, against Tavistock and Portman NHS Trust, which runs the UK’s only gender identity development service (GIDS) for children. Keira began taking puberty blockers when she was 16 before ‘de-transitioning’ and claimed the clinic should have challenged her more over her decision to transition to a male as a teenager.
The High Court’s ruling means that children who wish to undergo gender reassignment can now only legally consent to taking puberty blockers if they are able to understand the “long-term risks and consequences of the administration of” the drugs.
Matt Parr, our LGBTQ+ expert, had this to say on the outcome:
The High Court’s decision
In some regards, this decision has made it more difficult for children in this position. It has indicated that it’s unlikely a child under 16 would have the appropriate level of understanding and intelligence to make such a decision, and that this should almost be the starting point.
Gillick competence – consenting to treatment
Parental agreement here is important but not essential. Ultimately, a court deciding on the point will take into account their opinion on the individual child’s ability to make the decision and what’s in their best interests.
If it is decided in a particular case that a child under the age of 16 has sufficient intelligence and understanding to fully appreciate what’s involved in their treatment, they can consent to the treatment themselves. This is called being Gillick competent.
In the case of Gillick in 1983, the ‘treatment’ involved was the contraceptive pill and this was being given to a child under 16, without the parent’s consent. The court decided that it would be appropriate that the child consents to their own medical treatment if, in each case, the ‘child achieves sufficient understanding and intelligence to fully understand what is proposed.’
In its Judicial Review, the High Court has ruled that it’s unlikely a child under 13 would be competent to consent to the administration of puberty blockers. It was also doubtful that a child of 14 or 15 could understand either. The decision makes it clear that the Court should be involved in matters involving such young people. It is hoped this will protect the doctors’ and the patients’ interests.
Despite the same principles applying across the spectrum of medical treatments, often the child, doctor, and parents’ trains of thought are aligned. They will almost invariably consent to treatment that will save the child’s life or enhances their ability to live life to the full and in the best health possible.
It is interesting, though not surprising, that a case to test the principles laid down in Gillick has been brought to court in relation to the issue of gender dysphoria and the treatment for it - a widely misunderstood diagnosis and one that still attracts a great degree of scepticism and stigma.
Wider considerations for parents
Although this case focused on a specific issue facing transgender children, there are other areas which parents in particular should be aware of. For parents of those who are thinking of transitioning, or have already done so, it’s worth considering re-drafting their own wills to incorporate gender-neutral terms such as “child”, as opposed to those such as “son” and “daughter” or refer to their beneficiaries by name. This can help to ensure that all children are able to benefit, regardless of their gender.
Birth certificates won’t be replaced once someone has transitioned, their existing one remains but another entry will be made into the central register of births which makes reference instead to their chosen sex. The implication of this years down the line is that it could appear to anyone researching the family tree that the parents had twins.
It is also important for parents to understand that despite undergoing treatment with puberty blockers and their child having been diagnosed with gender dysphoria, this does not change the child’s natal sex legally. It is important to ensure that legal documents are prepared still making reference to the child’s natal sex, if absolutely necessary to refer to their sex at all (perhaps with additional reference to their chosen preferred name as well) until such time as their child has been issued with a Gender Recognition Certificate.
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Find out more about our team of LGBTQ+ solicitors. And how we can support with a range of legal issues, including preparing for marriage and civil partnerships as well as divorce and dissolution, adoption and surrogacy, wills and estate planning, and inheritance tax mitigation – contact Matt Parr for further advice.
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