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Rights
Restoring Agency to Clinicians over Transgender Healthcare Treatments in Bell v Tavistock By Thomas Heron, SS Law On September 17th 2021, the Court of Appeal of England and Wales reversed the highly controversial judgment of the High Court in R (on the application of Quincy Bell and A) v Tavistock and Portman NHS Trust and others (Tavistock). The Court of Appeal found that the lower court had erred in issuing guidance to the effect that it was “highly unlikely” that children under the age of 16 would be competent to understand and appreciate the long-term consequences of “experimental” treatments for gender dysphoria in children. The Court of Appeal further found that puberty-blocking hormonal treatment bore no characteristics which differentiated it from other standard medical treatments so as to warrant the “guidance” the High Court issued to supplement the standard test for children’s medical consent in Gillick v West Norfolk and Wisbech Area Health Authority (Gillick). The appellate decision has been welcomed by advocates of transgender healthcare rights for its acknowledgement that evaluation of transgender children’s competence to consent to hormonal treatments for gender dysphoria is the role of clinicians and not the courts. In the context of stagnant reform of the legal position of transgender people in the United Kingdom, this validation from the courts of the legitimacy of standard treatments has an important role to play in legitimising transgender issues. Background The Tavistock clinic is a part of the United Kingdom’s Gender Identity Development Service, referring transgender patients experiencing gender dysphoria for treatment through the NHS. If consent is obtained from the patient (and their parents where appropriate), treatment courses normally involving Puberty Blockers (“PBs”) and subsequent Cross-Sex Hormonal Replacement Therapy (“CSH”) are prescribed to treat gender dysphoria. The main claimant in the case is a woman who previously identified as a transgender male prior to the proceedings and sought and obtained a referral for puberty blockers from the Tavistock clinic. Following a number of years on preliminary puberty-blocking treatment and subsequent hormone replacement therapy and surgery, she identified differently and regretted the changes that she felt her referral and treatment had wrongly enabled. On foot of this, she applied for judicial review of the legality of puberty-blocking treatment to children under the age of 18, whom she asserted could not consent based on the “misleading” advice given by the Tavistock clinic. This was heard in the first instance in the High Court. High Court judgment Firstly, the High Court ruled that there was nothing unlawful about the Tavistock advice on foot of which consent was obtained for PB treatment through the National Health Service. This was a central issue and, as the Court of Appeal would later remark, it is difficult to understand why the case was not dismissed here. How-
