Court refuses to treat provision of cross-sex hormones to child over 16 as an exceptional case

exceptional case

[Note: the judge referred to Child Q as ‘he’ throughout. We refer to Child Q as a girl for clarity of understanding].

The second recent case concerning a teenage girl’s access to cross-sex hormones concluded in the High court on April 8th. In both cases, the court rejected the more cautious parent’s application that medical transition should be treated as an ‘exceptional case’ requiring continued court oversight if private treatment was sought. The result is that in both cases the child will be assessed and possibly prescribed cross-sex hormones at the private clinic Gender Plus.

In this second case the judgment was not in favour of the more cautious parent (the mother) but agreed with the father that his now 16 year-old daughter (Child Q) can access testosterone if this is deemed the appropriate treatment and she is judged to have capacity after assessment at Gender Plus.  

The mother originally made an application for a prohibited steps order (PSO) in 2022, asking the court to prevent the father from arranging for Child Q to access hormones. This was agreed up to the age of 16 and the mother was seeking to extend the PSO until age 18.

The mother did agree to Child Q joining the waiting list for NHS treatment, but not to accessing treatment privately. At that time there was no private clinic in England except Gender GP, which Child Q, with the support of the father, wished to pursue. In both court cases a judgment has been made that Gender GP is not safe. The Guardian of Child Q gave evidence in this case:

“Given the Guardian’s evidence that a referral to an offshore body such as Gender GP would not be safe for Q, I consider it right to ask the father to give the court an undertaking that he will not fund or facilitate it whilst he is a minor.”

From information in the judgment, there are some issues worthy of note in the background to this case. Child Q does not have a background of serious mental health issues as Child J did in the previous case, but does fit the profile of the adolescent-onset group described in the Cass Review in other ways: an acrimonious family break-up as a child; mild autistic traits; lesbian.

“In October 2022, and at his mother’s request, Child Q agreed to undergo an autism assessment which concluded that he had some limited traits of the condition. In November 2022 the local authority conducted a single assessment which noted that Q had suffered disruption and trauma because of parental acrimony and gender dysphoria.”

The father’s parenting style is described as “permissive and indulgent, characterised by a relaxed and responsive approach towards Q, sometimes overly accepting and deferring to his wishes.”

“This can be seen in the father’s approach in providing Q with a breast binder at 12 or 13 years of age, supporting his wish to social transition at school when she wanted (the mother says without consulting her) and stating that Q’s wishes as to whether or not he contacts his mother or shares information with her should be followed.”

The mother was described as having “appropriately balanced authoritative and permissive styles of parenting, moderate in both responsiveness and demand.”

The result is that Child Q is “closely aligned with his father and rejecting of his mother.”

This is hardly surprising. It is not uncommon for different parenting styles to cause friction between parents, which can be exacerbated when parents separate. The permissive parent can become more popular with a teenager for obvious reasons and this can sometimes be more exaggerated when it’s a dad and a daughter.  

“Q perceives that the mother is placing barriers in the way of the person that he wishes to be. The mother refers to him by his original, female name and misgenders him. During the course of these proceedings, Q’s relationship with his mother has deteriorated so that there is now very little contact between them.”    

Child Q is now living most of the time with her father, stepmother and her stepmother’s daughter. Child Q is also in a relationship with the stepmother’s daughter, who also identifies as a boy.

These are quite unique circumstances. Child Q lives in an affirmation bubble, her beliefs reinforced as truth both at school and at home with two adults who clearly do not question that the two lesbian girls under their care are really boys, in a relationship built on an identity both girls share and is dependent on validation from the other. There is no chink open for uncertainty to intrude here.

Given these circumstances it is not surprising that Child Q is so certain that her identity is fixed and will not change and so confident of her rights and the treatment pathway she has been led to believe she needs. Neither is it surprising that Child Q is not open to any exploration or challenge to her beliefs.

“Child Q refused to agree to his medical records being disclosed.  A Consultant Psychiatrist was identified, but Q refused to be assessed by him.  He was reluctant at the start to be asked to engage in an assessment which was not part of an assessment/treatment pathway, and he refused altogether after finding an article online by the expert which led him to believe he could be sceptical about treatment for young people.” 

Autistic traits in themselves may exacerbate a fixed certainty in thinking, as well as the urge to research all evidence to support a need to be right. The ability to assert your case based on evidence-gathering from the internet and social media is not necessarily indication of maturity if a child is resisting any views counter to their beliefs. Social media is a platform where adolescents will find only pro-trans ideology, met with cries of ‘transphobia’ whenever challenged; it is not a place that will help a teenager understand a mother’s concerns. It seems naïve in the extreme to trust in a teenage girl’s ability to think critically about information she is accessing that will only bolster her conviction that she is right and her mother is wrong.

“The Guardian said that Q is very mature for his age, and that he is articulate and knowledgeable about all the issues, having acquainted himself widely with information available on the internet, from reliable websites such as the NHS but also from social media sites, including Reddit.”

From the facts laid out in the judgment it does not seem that there is any adult in this child’s life who is brave enough to challenge her, except for her mother – who has paid a high price for doing so. This scenario will be familiar to so many parents. With other risky behaviours in adolescence, at least parents can depend on other adults and society in general to support them in their concerns about decisions their teenagers are making.

The subject of ‘trans’ seems to be exempt; as if on this issue alone children know best. A child’s view that a parent is being unfairly obstructive will be reinforced on social media, at school, among peers and on popular broadcast media – and in this case the father and stepmother are doing nothing to provide an alternative view.

The judge states:

“I know that Q believes that his mother has lied, or that she is motivated by wider political matters, but the fact that he holds these views does not mean that they are objectively correct. If he is being allowed or encouraged to believe his mother is behaving in this way then that is a great pity. The mother has, with some difficulty, agreed that he could change his name. She accepted the fact of his social transition even though she did not think that should happen (and the Cass Review raises questions about this). The price she has paid for fighting for what she considers to be best for her child is to lose her relationship with him.”

The judgment also states that Child Q “is aware of the law and this creates its own expectations.” Child Q, along with schools and other institutions, will have learned about the ‘law’ through groups like Stonewall and Mermaids. She will have learned misinformation such as having the right to be ‘affirmed’ as a boy and allowed to use boys’ facilities. And she will have learned that medical ‘gender-affirming care’ is also a right, only denied by transphobes and bigots.

The judge herself expresses some scepticism about Child Q’s ability to weigh the evidence:

“I am not sure I share the Guardian’s confidence that Q is able to consider all the evidence about gender dysphoria and the treatment available in a balanced and unbiased way (something that is beyond many adults).” 

The judge also highlights the extent of the ‘toxicity’ of the debate in the fact that, as in the Child J case, no UK endocrinologists were willing to provide expert evidence:

The toxicity of the debate has very much affected the parties in this case on a private level. It has also affected the court in that it has not been possible to obtain any independent medical evidence. Whilst there is a paucity of experts in some disciplines (radiologists and pathologists particularly come to mind) I have never encountered a case where there was simply no-one willing to provide such evidence for the court.

What is not stated is the fact that it is the fear of the consequences of questioning ‘gender affirming care’ that is likely to have prevented endocrinologists from providing evidence. The question is, why were those who have already been providing this medical treatment to children unwilling to stand up and be cross-examined in court?

We are back to the issue central to the Keira Bell judicial review: the capacity of minors to consent to an experimental medical pathway, this time specifically in the case of children over the age of 16. The judgment hinges on Section 8 of the Family Law Reform Act 1969 which provides that:

The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian”.

It raises the question of whether legislation designed in 1969, when the advent of ‘sex change’ medical procedures for minors could not possibly have been foreseen, is adequate to protect children today: the issue is so far removed from the issue of consent for contraception.

The Cass Review final report makes the point that the competency/capacity of a child to consent to medical treatments is only part of the process of decision making about treatment options. In Dr Cass’s meeting with the Scottish parliament she said:

“It is hard to make a legal distinction between a 16 and an 18 year-old in terms of capacity. When I thought about consent, the challenge is not so much about capacity but the other elements of it, which is the clinical judgments to offer a treatment which as you know, we all bear responsibility for treatments we offer and knowing whether that is the right treatment for that individual, and secondly the information we give to inform consent about the risks and benefits which again is weak. So legal cases have obviously focused on competence and capacity but those are the other challenges, those are the two pillars of knowing whether we’re giving the right treatment to the right people.”

The Cass Review final report cites the General Medical Council (GMC) guidance (2020) that a medical professional must be satisfied “that in their reasonable professional judgement, a medical procedure or treatment is suitable and useful to reach a specific therapeutic goal with a certain probability” (16.3) and that “the clinician is responsible for recommending and providing effective treatments based on the best available evidence.” (16.4).

However, “the evidence for the indicated uses of puberty blockers and masculinising/feminising hormones in adolescents are unproven and benefits/harms are unknown” (16.14) and “As set out in the section on brain development, maturation continues into a person’s mid-20s, and through this period gender and sexual identity may continue to evolve, along with sexual experience” (16.10).

“For these reasons, many clinicians who the Review has spoken to nationally and internationally have stated that they are unable to reliably predict which children/young people will transition successfully and which might regret or detransition at a later date.” (16.11)

NHS England has committed to implementing the recommendations of the Cass Review and will review the policy on cross-sex hormones (CSH) for under-18’s, and include CSH in the research programme to evaluate outcomes. The Cass Review recommends ‘extreme caution’ in the provision of CSH to under 18’s:

“The option to provide masculinising/feminising hormones from age 16 is available, but the Review would recommend extreme caution. There should be a clear clinical rationale for providing hormones at this stage rather than waiting until an individual reaches 18.” (Recommendation 8)

The new NHSE gender hubs will follow a thorough assessment and treatment framework, including screening for neurodevelopmental conditions including autism, a tiered approach, standard evidence-based psychological and psychopharmacological treatment approaches to support the management of associated distress and cooccurring conditions, and individualised care plans. Every case considered for medical treatment will be discussed by a national Multi Disciplinary Team (MDT).

The private clinic Gender Plus cannot possibly provide the level of care deemed necessary by Cass. The ex-Tavistock clinicians working there are those who were committed to ‘gender affirming care’ and clinical director Aiden Kelly has already accused the Cass Review of showing “an unjustified level of caution.”

“We’re in a far worse position than we were four years ago,” he said. “The Cass review and NHS England’s policy updates, and the kind of measures and decisions they’ve made in terms of what to do with services, how to set up services – or not, as the case may be – means we’re in a far worse position.”

Dr Cass, in her meeting with the Scottish parliament, expressed her concerns that private clinics will not be meeting the necessary standards of care:

“I have really deep concerns about private provision, de facto based on the recommendations we have made, that will not be meeting this standard, and I feel that that does put young people at considerable risk to not have the level of assessment that we’re describing.”

The two post-Cass court cases leave us with some questions. It is clear that the more cautious parent in cases like this will be likely to fail in their attempt to safeguard their child through the courts, despite being more aligned with the cautious approach recommended by Cass and implemented by NHS England. The parent likely to succeed on the other hand is the one supportive of the gender affirmative approach now rejected as unsafe.

The fact that Gender Plus was registered by the Care Quality Commission (CQC) gives it respectability despite the fact it is likely to continue with the level of assessment and treatment that failed children at the Tavistock GIDS. Sue Evans is challenging the CQC on this decision and this is why it’s such an important case for parents. In terms of private clinics, judging Gender GP alone as unsafe sets an extremely low bar.

The two court cases raise again the issue central to the successful appeal by the Tavistock to the Keira Bell JR: the judgment that medical decisions were not for the courts but the medical profession to decide. But what if the both the clinicians and the regulators are captured by a non-scientific ideology? The medical profession has failed to safeguard children from harm in this regard. NHS England may have changed now, but there is no sign that ideology does not prevail in private provision, as well as within the NHS.

The result of this latest case is that an adolescent girl is left with no protection. Parents with reasonable and wholly justifiable concerns about experimental medical interventions with serious risks and irreversible effects are left unable to safeguard their own child once they turn 16. The law did not see this coming but the Cass Report leaves us in no doubt that this area of medical practice is like no other. It is an ‘exceptional case,’ is it not time the law recognised that?

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