Last week, in a landmark judgment, the Court of Appeal overturned the controversial 2020 ruling in the Keira Bell case, which had found that gender dysphoric children under 16 were unlikely to be mature enough to be able to give informed consent to receiving puberty blocking drugs. Their Lordships disagreed, ruling that the court lacked competence to pronounce on matters of clinical judgement, and that the Gillick test of competence applies – meaning that it is for clinicians to exercise their judgment as to whether or not a child fully understands the advantages and disadvantages of a proposed course of treatment, and not the court (https://www.thetimes.co.uk/article/tavistock-nhs-trust-wins-appeal-over-puberty-blockers-for-children-7k9pg9gfw). To be precise, they said that it was inappropriate for the High Court to have given guidance, because whether or not a child can properly consent is a matter of clinical judgment (https://www.bailii.org/ew/cases/EWCA/Civ/2021/1363.html).
At so many levels, this judgment raises concern. Does Gillick really apply here? A child may well be deemed competent to decide she wants to take a pill to prevent pregnancy – but can and should the same test apply to a decision that will result in life-altering and irreversible changes to a child’s body – that will render him or her infertile and incapable of having ‘natural’ sex, and which all the evidence shows some will later bitterly regret?
Some – a very few – children genuinely suffer from gender dysphoria and feel alienated from their biological sex. They will at some point transition. But evidence shows that the majority of children presenting with supposed gender dysphoria will, by puberty – if given love, affirmation, support and left alone – be entirely happy with their birth sex (https://journals.sagepub.com/doi/full/10.1177/0024363919873762). It is also well established that many children presenting with gender dysphoria are in reality lesbian, gay, autistic, or suffering from mental illness and can be helped by therapy, without undergoing intrusive reassignment treatment – which indeed might prove highly detrimental.
Gay actor Rupert Everett, for example, is a case in point. He has famously said that between the ages of 6 and 14 he didn’t want to be a boy at all, and dressed as a girl. But at age 15 – when he realised he was gay – he suddenly changed his mind. (https://www.thesun.co.uk/tvandshowbiz/1308380/transgender-rupert-everett-reveals-he-dressed-as-a-girl-for-eight-years-when-he-was-a-child/).
The truth is, children do change their minds constantly – and that’s part of what childhood is all about, as they struggle to find out who and what they are. So children rebel against convention, flout parental rules, get drunk at parties, take drugs, post pictures of themselves on Instagram, etc, etc … It’s the parents’ job to love and guide their offspring through all of this, in so far as possible protecting them from serious and lasting harm.
Changing sex is a major procedure, involving the administration of life-changing hormones and surgical mutilation of an otherwise healthy body. Such invasive treatment is technically prohibited under the age of sixteen, but puberty blockers, as the name implies, stop the onset of puberty. However, far from being a gentle and easily reversible procedure that merely allows a child time to make up his or her mind, even the NHS now admits that ‘Little is known about the long-term side effects … (and) it’s not known whether hormone blockers affect the development of the teenage brain or children’s bones…’ (https://www.nhs.uk/conditions/gender-dysphoria/treatment/).
In fact, to put it bluntly, there is increasing evidence that puberty blockers are dangerous, while it is a fact that most children who take them will progress to hormone treatment leading to gender change. But no matter how much a child might think he or she wants to transition – because that will be the answer to all their problems – there is no way they can fully understand the consequences of a decision that will irreversibly and forever change their body.
Of course, one understands the court’s unwillingness to give guidance on matters associated with clinical judgment, but in this situation the obvious potential for harm surely renders the Gillick test inappropriate.
As so heart-breakingly demonstrated by Keira Bell, a child can never fully comprehend the consequences of what it is they’re demanding. Ms Bell says that doctors at the Tavistock should have challenged her more, and so they should. But this is to ignore the climate of woke rebranding that dominates society today and that actively encourages sexual experiment and gender change.
The Tavistock has not been immune to this, as we know from the endless stream of complaints about inadequate and misjudged clinical assessment made over the last few years (e.g. https://www.bbc.co.uk/news/health-51806962). Add to this the increasing numbers of children who have undergone reassignment and are now reportedly seeking to detransition, and we have a looming tragedy of homeric scale (https://www.dailymail.co.uk/news/article-7541679/Hundreds-youths-gender-surgery-wish-hadnt-says-head-advocacy-network.html).
In such a situation, should we really trust the judgement of clinicians that a child has competence and can decide for themselves?
The answer is, no, and in this situation at least the Gillick test is misplaced. What we should really be asking is, how do we as a society protect children from making premature decisions that cause harm?