Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. She is co-founder of Radical. She and Victoria Hewson, her co-founder, alternate authorship of this fortnightly column on trans, sex and gender issues, and are co-authors of the article below.
The tide continues to turn. The judgment handed down in last week’s Keira Bell case is the latest example of pushback against the agenda of the gender-identity activists who’ve captured our institutions. Regular readers will know we believe this capture not only damages our democratic processes, it represents a serious direct threat to some of the most vulnerable members of our society.
Over recent years, many concerns have been raised about the practices of the Gender Identity Development Service (GIDS) — the UK clinic addressing the needs of under-18s who experience ‘difficulties with their gender identity’. Foremost has been concern about the medical interventions GIDS have undertaken on children. These fall into two categories: the prescription of puberty blockers, from around age 11, and the prescription of cross-sex hormones, from age 16. The number of children referred to GIDS has famously rocketed, with 2,728 children (between the ages of four to 18) referred in 2019-20.
The Bell case — more formally, Bell and Ors v Tavistock and Portman — represents the culmination of concerns about GIDS, and puberty blockers in particular. The claimants, Bell (referred to in the judgment as Quincy), and Mrs A (the mother of a 15-year-old girl) brought a judicial review against the Tavistock and Portman NHS Foundation Trust, in respect of its practice of prescribing puberty-suppressing drugs to persons under the age of 18. Bell, now 23, had been prescribed these at 16, then quickly moved on to cross-sex hormones, before a double mastectomy aged 20. Soon after, she realised the emotional and mental difficulties she’d felt as a teenager were not, after all, a sign that her true ‘gender identity’ was male, and thus ‘solvable’ with hormones and surgery.
The court case turned on the question of whether children treated by GIDS — such as Bell, and Mrs A’s daughter — were capable of giving informed consent, in the legal sense, to such interventions. GIDS, and the NHS trusts that administer these interventions, proceed only if they consider a child is competent to give consent (it wasn’t their practice to proceed on the basis of parental consent alone). The test for competence in English law derives from the 1986 Gillick case, in which it was established that under 18s can consent to treatment if they have sufficient maturity and intelligence to understand its nature and implications.
In the Bell case, three senior judges found the use of puberty-blocking drugs in treating gender dysphoria to be experimental, to lack a firm evidence-base and clarity of purpose, and to have consequences that are ‘highly complex and potentially lifelong and life changing in the most fundamental way imaginable’.
GIDS had argued that blockers can be stopped, and don’t necessarily lead to cross-sex hormones and surgery. But the court found that, in actuality, taking these drugs almost always puts a child on that medical pathway, and that ‘once on that pathway it is extremely rare for a child to get off it’. A child would, therefore, need to be able to weigh up not just the immediate (and poorly understood, even by specialists) medical consequences of taking blockers, but all the consequences for their future health, relationships, fertility, and sexual function.
Unsurprisingly, the court found it highly unlikely that children aged 13 or under would be able to give informed consent, and doubtful that 14- or 15-year-olds could. A court order will now, therefore, generally be required for blockers to be prescribed to them. For children aged 16 and over (where there’s a presumption in law they can give consent), the capacity for informed consent was considered more plausible, but clinicians will need to apply to the court for consent in cases where there’s doubt the treatment will be in the child’s long-term best interests.
The judgment is a damning indictment of GIDS’ clinical practice. Its clinicians were criticised for their lack of data on the ages of the children they’d ‘treated’, on the number or proportion of these children who’d been diagnosed with autism or mental-health conditions, and for failing to track the outcomes of their patients into adulthood.
But, if you’re thinking these findings might’ve led to contrition from GIDS, and all those who’ve advocated for these interventions, then you clearly haven’t been following these matters. One of the reasons institutional capture is so dangerous, is that it prevents necessary accountability and redress. Often, legitimate criticism simply cannot get through. And if you’ve ever voiced concerns about GIDS, you’ll know too well about the personal costs involved in speaking out.
Unsurprisingly, therefore, there’s been a serious backlash against the Bell judgment. Stonewall took a predictable line, and Jolyon Maugham QC compared it to the Holocaust. Liberty and Amnesty International made emotional claims that showed they hadn’t understood the judgment. Mermaids’ founder was taken to task by Newsnight’s Emily Maitlis for making unsubstantiated claims about suicides amongst gender-dysphoric children. And the UK’s National LBGT Adviser made claims about puberty blockers that the court had expressly found unsubstantiated. GIDS itself is continuing a legal action against a former member of staff who raised the alarm about the use of experimental hormone treatments on children.
At Radical, we’re saddened and worried that it’s taken a court case to call a halt to what is so obviously an example of the exploitation and harm of children. All children are vulnerable, but many of those referred to gender clinics are particularly so. Yet their mental health problems have been left undiagnosed and untreated, their bodies subjected to experimental drugs, and their physical and mental development threatened in ways many of them will still fail to understand.
The case vindicates Bell’s brave quest to prevent others undergoing the ordeal she’s suffered. And also the work of Transgender Trend — which has tirelessly campaigned to raise awareness, and facilitate open debate about these issues, and was allowed to submit evidence in the case.
But what’s urgently required now is full recognition of the abhorrence of what’s been going on. Because this isn’t just about proving consequential harm. As the judgment shows, children, who cannot even consent to these life-changing interventions, have been deemed capable of determining they should take place. As we’ve written before, the problem is not just, therefore, that decisions about these matters are irreversible, or even harmful; it is that a child is incapable of making such a serious decision, in a sufficiently reliable manner.
Yes, some children — unlike Bell — may feel grateful in later life for having undergone these interventions, regardless of any personal costs involved, such as the lack of fertility and sexual function. But if a child is incapable of making a choice, then it is incoherent and wrong to see any preference they may seem to display, as a child, about the matter, as a ‘choice’. And if a child then goes on to feel happy about the consequences of what happened as a result of that ‘choice’, this does nothing to justify the decision of the adults — charged with the child’s care — who allowed them to make that ‘choice’.
That this has been happening is an affront to human dignity. Recognising the harm these children have suffered is vital. But beyond that is the most basic abnegation of responsibility: parental, clinical, and societal. And demands for proof of harm are themselves a horrific moral failure. Nobody should have needed that to know the deep wrongness of what has been going on. Urgent institutional change, proper access to appropriate mental-health treatment, and serious accountability and redress are required — now.