Dr Fiona Bisshop

The High Court in the UK has failed trans youth. The ruling on December 1st stating that young people under the age of 16 cannot consent to puberty blockers is unjust and cruel, and the consequences for young trans people there will be severe. In essence, according to the judgment, if a young trans person wishes to start blockers, even if their doctors and parents agree, they are now forced to go to court and let a judge decide whether or not they can start.

You can find a copy of the judgment here: https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf

The case was brought by 23 year old Keira Bell, a patient of the Tavistock Gender Identity Development Service in the UK. Keira was given puberty blockers at the age of 16 and went on to transition to male with testosterone and eventually top surgery (bilateral mastectomy).  They have since expressed significant regret over their path, although the reasons for this were not really discussed in the judgment.

My first reaction is this – judges are not doctors, and neither are they versed in the nuances of the medical care and needs of trans and gender diverse youth, so how on earth can it be right that judges will decide who can receive treatment? Surely a courtroom is not the place to determine medical management for an entire cohort of children? As outraged as I am by this situation, I am even more outraged by the incorrect assertions that the judges have made in their ruling. It’s a long list, so let’s get started.

First of all, they refer to Gender Dysphoria as a psychological condition. Well, OK, it is listed in the DSM-V as such, and certainly we know that the distress that comes with dysphoria often needs psychological support; however, being transgender is not a mental health condition, and the WHO last year in their ICD-11 moved Gender Incongruence (a marked and persistent incongruence between a person’s experienced gender and assigned sex) out of the chapter on mental health and behavioural disorders altogether. I think it’s very important to acknowledge this, as we should not be talking about gender diversity as being pathological, but rather as part of the normal human spectrum of existence. Trans kids are not disordered.

The next issue I have is with the “expert” evidence the court listened to. They have quoted a “desistance” rate of 85% or more, meaning that they believe that the majority of trans youth will stop being trans once they have gone through puberty. This notion is profoundly wrong, and is based on some very old data which looked at all referrals into gender clinics. This data included quite young children who were more “gender expansive” than truly transgender, and we know that most of these kids are not trans, and by the time they hit puberty they will have settled back into being cisgender. However, when we look at children who have persistently and consistently identified as the gender opposite to their gender presumed at birth, and who continue to feel this way as they enter puberty, and who have extreme distress when pubertal changes begin, these are the children who are almost certainly going to continue to be transgender as they move out of adolescence. Paediatric gender clinics here and overseas recognize that these children are the very people who need puberty blockers, and that the likelihood of later regret in this group is extremely low, possibly in the order of a few percent, a far cry from the 85% the court was told of.

The court also stated that the use of puberty blockers for trans youth is experimental. Well, it’s been a pretty long experiment, given that they’ve been used for this purpose for 30 years! The drugs used to block puberty have only limited indications, including for precocious puberty (a condition where children start to develop physical changes of puberty way too early) and endometriosis in adults, and they are used “off label” for trans children. The fact that their manufacturers have not applied for a listing for their products for puberty suppression for Gender Dysphoria is more to do with cost than anything else – the number of patients is too low for it to be worth their while to go through the very expensive process of putting in a submission for their drug to be listed, especially given there are several similar products on the market. So the assertion that puberty blockers are experimental is simply wrong – they are drugs very familiar to clinicians and have been used for decades. While it is true that not all the long-term effects of puberty suppression in this group are known, we do know that puberty suppression is reversible, and it is safe to say that any minor loss of bone density (which will return to normal once GAHT is underway) pales into insignificance beside the enormous improvement in quality of life they can offer.  Unanswered questions about the use of puberty blockers are all the more reason to be encouraging funding for research and robust data collection, but in the meantime, gender affirming treatment saves lives – having great bone density is not that useful once a person has died by suicide.

The court stated, based on “expert” testimony, that there is limited evidence of efficacy of puberty blockers. They didn’t state what the measure of efficacy would be. Ask any doctor working in the area and they will tell you – the efficacy is that the young people who are prescribed puberty blockers get immediate relief from some of their dysphoria, and their fear of developing physical changes that would not affirm their gender disappears. One of the greatest benefits is the prevention of permanent physical changes such as a deeper voice, facial and body hair, or breast development.

There seemed to be a belief among the judges that puberty blockers somehow influence gender identity, and that simply by putting someone on puberty blockers one could intensify a sense of being transgender. This is a theoretical notion, and is certainly not borne out in those youngsters with precocious puberty who were put on them – they did not all suddenly develop gender confusion or have high rates of gender dysphoria after starting blockers. The court noted that most gender dysphoric children who were placed on blockers went on eventually to receive gender affirming hormone therapy (GAHT, also sometimes called cross gender hormone therapy), and they therefore made the incorrect deduction that blockers always lead inexorably to commencement of GAHT. Instead, they could have deduced, correctly, that this simply means the right group of children are being treated with blockers, ie the trans children!

One of the biggest mistakes the judges made was to equate puberty suppression with GAHT, because of their belief that puberty suppression would always lead to GAHT. This is very important, because they are not the same thing, and consenting to puberty suppression is not the same as consenting to GAHT. The court decided that a child under 16 could never fully comprehend the ramifications of GAHT and all the permanent changes that would ensue, so decided that they could not consent to either GAHT or blockers.

Something I thought was clearly lacking in the judgment was any compassionate understanding or acknowledgement of the level of distress that young people with Gender Dysphoria suffer, and that puberty suppression can have a profoundly positive role in alleviating this distress. The judges seemed more concerned with the possibility of regret, than with the risk of denying trans youth the chance to avoid permanent and devastating physical changes to their bodies. My adult trans patients are unanimous in agreeing that the possibility of preventing these changes during puberty would have been life-changing for them – for trans women, the deep voice and facial hair they developed during puberty causes them great difficulty, effort and expense to change, and is one of the main features that singles them out in public, leading to discrimination, transphobic violence and ensuing mental health complications. For trans men, preventing breast development means being able to avoid wearing painful chest binders or go through costly, painful and scarring top surgery.

The court did not seem to acknowledge the array of international guidelines that already exist for managing Gender Dysphoria in young people, including those of the American Academy of Pediatrics, the International Endocrine Society, WPATH, and the Australian Standards of Care and Treatment Guidelines for trans and gender diverse children and adolescents, all of which recommend the use of puberty blockers for those children with dysphoria which worsens at the onset of puberty. Instead they have been guided by “experts” with track records of transphobia, such as TransgenderTrend, an organization whose self-proclaimed aim is to stop all affirming treatment for trans and gender diverse youth and prevent social transition.

And one thing missing from the whole proceedings was the voice of the trans young people who will be so very deeply affected by this decision.

So, I ask you this to consider this (relatively common) scenario. Imagine a 12 year old, presumed male at birth, who, since they were first able to utter a sentence, has been consistently identifying themselves as female, and has never wavered from this position. They have long hair, wear dresses, bows in their hair, have a largely female friendship group, have a high voice, and appear to the casual observer to be a girl. They have started to notice some squeaky changes in their voice, and are terrified that they will start to change in ways that are completely abhorrent to them. They are so fearful of growing tall, of getting facial hair, and a big Adam’s apple, not to mention a booming voice. Instead, they want to develop in line with their female friends. The thought of these masculinising changes happening starts to make them very anxious, and eventually this leads to school refusal for fear that their friends and teachers might notice. Their anxiety turns into social phobia and panic attacks, and they eventually become too anxious to ever leave the house. By the time the major changes of puberty have occurred, they are disgusted by their body, can’t stand to look in the mirror, and have begun to harm themselves, just cutting a little at first, but beginning to think about more serious harm, and beginning to think they would be better off if they’d never been born. If you think this is far-fetched, think again. This trajectory is common for many transgender teens who have been forced to experience a puberty that does not align with their personal gender experience. By the time they are adult, many will have developed severe depression, maladaptive personality traits and even features of post-traumatic stress disorder, all because they were not able to suppress pubertal changes. And some will have died by suicide.

Now imagine the same 12 year old, this time able to go onto blockers when they first notice their voice changing, thus preventing further changes. Their fear of masculinisation dissipates, and they can get on with being a kid. Eventually, if their gender identification persists, they will be offered GAHT and develop the physical changes of a female puberty, albeit a little later than their peers, but nonetheless much wanted. This is affirming therapy.

If this 12 year old, their parents and doctors all agree that puberty suppression is the right path for them, how on earth does it then fall to a judge to decide if this can happen? And is it a foregone conclusion that, given the child is under 16, the automatic assumption of the court will be that they cannot understand the implications of the treatment, therefore they cannot consent? This would be a terrible outcome for the child.

Do I need to spell it out? Withholding blockers from a trans young person is not a neutral option.

I am deeply worried about trans youth in the UK who will be affected by this ruling, and am so grateful that this is not the situation here in Australia. Hopefully there will be a successful appeal of the ruling. What does worry me here is that the case has sparked a lot of ignorant commentary about the use of puberty blockers in our paediatric gender clinics, and that certain people will use this ruling as evidence that our own standards of care are incorrect. In my opinion the only thing this ruling proves is that we should never be complacent when it comes to safeguarding the health and well-being of our trans and gender diverse kids.